Congressional polarization is no better, having increased to the point where the two parties essentially always vote in lockstep with one another and rarely overlap. The “representatives of one part” are truly “continually striving against those of the other.”
There have been many theories and solutions offered for increasing polarization. Some solutions are rooted in controlling political information, whether through campaign finance laws, lawsuits against those who spread “disinformation,” or trying, in some way, to hold media accountable. At best these seem overly optimistic, and at worst they are blatant violations of the First Amendment. Given the way the Internet is personalizing our “feeds” in music, movies, art, and, well, everything, it seems wiser to conclude that, for the foreseeable future, political opinions will become more idiosyncratic, personal, and disparate.
But during the founding era, unlike perhaps any other time except for our own, political opinion was idiosyncratic, personal, and highly disparate. Newspapers and pamphlets by the hundreds were the primary source of political information, and those sources were biased to the extreme. There was no mass media, only private “feeds.” Maybe, therefore, the wisdom of the Anti‐Federalists is even more relevant to soothing our currently polarized soul.
The Constitution as Peacekeeper
What can we learn from these three prescient Anti‐Federalist predictions? Primarily, that the Constitution is a peacekeeper. Good fences make good neighbors, but why? It’s less about keeping things out than keeping things in, that is, defining who has control over your yard, your house, and the things that happen inside.
A Trump supporter and a Clinton supporter living next door to each other can get along cordially due to the separation between the two houses. If either one were allowed to control the internal “policies” of the other house, however, things would get ugly. It’s no different in politics. The Constitution, as it was originally conceived, also tried to keep peace between neighbors, that is, between the different states that make up the union.
The Framers partially understood what the Anti‐Federalists argued: the more that government gets involved in the daily lives and values of common people, the more it will sow discord if those people are dissimilar. The Framers, however, believed they had created a government that would not encroach too far into the internal politics of the states—that the Constitution effectively limited the federal government to questions of truly national, not local, importance. The Anti‐Federalists predicted that government would eventually jump the constitutional guardrails and assert local authority over a diverse and numerous people.
The Anti‐Federalists were right. Those constitutional guardrails are almost non‐existent and, insofar as they still exist, they are often based on tradition or maintained at the sufferance of the national government. The federal government, for example, merely tolerates marijuana use in states that have legalized it, the DOJ having instructed its officers to not generally enforce the national drug laws within those states.
If a President Chris Christie, however, decided to bring the full force of the federal government into the legalizing states, and to essentially override local governance, there would be no principled, constitutional reason he couldn’t. The only protection would be the unpopularity of such an action, which seems an awfully thin reed to rest our freedoms upon.
Regardless of your views on the proper size and scope of the government—whether the government should provide health care, prohibit drugs, guarantee education, create social safety nets, engage in environmental protection, or whatever—this situation should concern you. Americans are at war with each other, an increasingly primitive and tribal war, over fundamental questions that implicate our deepest values—which education plan we should have, which health‐care plan we should have, and what drugs we’re allowed to ingest, just to name a few.
But why should Georgia and Massachusetts have the same health care, education, and drug laws? Many people in those states can hardly stand to be in the same room together, so why would we let them govern each other?
Congressional Majorities Don’t Authorize Dictatorships
This problem is bipartisan. On April 23, 2006, President Bush signed the Student Protection and Affordable Education Act, better known as the AEA or just “Bushucation.” The law creates a school voucher program in every state, and, in so doing, seeks to make education better and more affordable through the introduction of market competition.
The law is incredibly complex. It mandates that states expand their education spending to fund a massive school voucher program or, if they choose not to, to lose all current federal education funding. There are extensive subsidies for families of lesser means, and states are required to set up “education marketplaces” where parents can trade their school vouchers and efficiently shop for the best education options.
Finally, it requires everyone to pay into a mandatory school voucher fund, even if those people don’t have or don’t plan to have children. Without a single Democrat vote, the Republicans pushed the law through.
I’m lying, of course. That law doesn’t exist as an education law signed by President Bush. It does exist, however, as a health‐care law signed by President Obama. On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act, better known as the Affordable Care Act or just “Obamacare.”
The law is incredibly complex. States were mandated to expand their Medicaid coverage or lose all current Medicaid funding (the Supreme Court struck this down). There are also extensive subsidies for those with lesser means. One essential part of the law’s structure was the so‐called “individual mandate,” which required certain people who were not insured through their jobs or other programs to purchase health insurance.
Aside from the policy questions, arguably the most culturally significant thing about the ACA is that it is the most consequential national law ever passed without a single vote from the opposing party. In some sense, half the country imposed health‐care policy on the other half. Of course, if George W. Bush could have done the same with an education law, perhaps Common Core, he might have imposed an education policy on half the country.
In the Affordable Care Act (and the hypothetical school vouchers law), the federal government once again used its “limited” powers how the Anti‐Federalists predicted. Local, state‐level control of health insurance was seen as a “clog upon the wheels,” in the words of Yates, to a great national plan. Moreover, an individual decision to not purchase health insurance was also seen as a “clog” that needed to be overridden.
Yes, the Democrats won the 2008 election and controlled Congress and the presidency, and some might argue that elections authorize majorities to rule over minorities. Yet, in a system of limited government, majorities aren’t dictatorships authorized to impose their unfettered will on the minority. Furthermore, even if something is allowed, it might still be unwise.
Such unfettered majoritarianism can be dangerous in a large and diverse country. As Cato warned, a country with the “immense extent of territory” as the United States, that contains people with a “dissimilitude of interest, morals, and politics,” should not be brought under one general government. Otherwise, we would have “a house divided against itself.”
That “house divided” can create real problems, and not just in terms of political backlash. Laws like the ACA don’t magically self-execute—rules need to be written, programs developed, and thousands of administrators and politicians around the country need to be involved in implementing them.
Furthermore, the ACA includes numerous provisions that necessitate state‐level involvement. As much as Democrats would wish otherwise, some of those state‐level politicians charged with implementing the law would be Republicans, and many of them resisted the law, just as many Democrat state officials would have resisted the hypothetical school voucher law. But partisan political division is a reality to be confronted, not an obstacle to be bulldozed. Major pieces of legislation require compromise, not ramming it down the throats of the opposition.
This is not to say that Republicans have done and would do the exact same. But this is where the lessons of the Anti‐Federalists can be applied in the most salutary manner. If we stop trying to control each other in our local and personal matters, if 51 percent of the country stopped trying to impose its will on the 49 percent, then maybe we could get along better. To do that, however, we need to have a concerted and nonpartisan move toward localism.
We Need to Start Leaving Each Other Alone
Let me ask the question again: Will a remote and distant government that wields a large amount of power over a vast land and a diverse people increasingly be seen as being unrepresentative of the people, and, in the process, sow discord between them? Yes.
We rightly revere our Constitution, but, apart from debates over how it should be interpreted, it is a “living document” in at least one sense: The attitudes of the people breathe life into its words, which carry no real force of their own. But the Anti‐Federalists didn’t go away; their ideas still help animate the Constitution’s words, and their concerns have merged into ongoing the political conversation of the country.
The Anti‐Federalists taught us valuable lessons about good government that have always been relevant and will never go away. Yet it seems there is something different about this election. Two of the most unpopular major‐party candidates in history are vying for our votes. Given that a majority of Americans dislike both, whoever wins, most of us will be unhappy.
Yet, at his or her respective victory party, the victor will still claim that “the people have spoken.” When he or she sits down in the Oval Office, the new president will feel emboldened by “a mandate from the people,” even though more than half of his or her fellow citizens find this president unacceptable.
Nevertheless, he or she will take that sense of purpose into the most powerful office on the planet—as the head of the most powerful organization in the history of humankind—and will start pulling levers and flipping switches that will drastically affect the daily lives of Americans, for good or for ill. In four years, will we have overcome our malaise? Will this be seen as a bout of temporary insanity? For reasons that the Anti‐Federalists first articulated, I think not.
Good government is not just about the question “What should be done?” It’s also about the question “What can we do together, cooperatively rather than combatively?” We are stronger together, yes, but someday soon the only way we can continue living together might be by leaving each other alone.