The strongest Anti-Federalist argument against ratification: that a consolidated national government would inevitably consume the states, overtax the people, and require a standing army to enforce its will. The argument Madison and Hamilton had to answer.
Federalist No. 10 (James Madison, November 22, 1787) — the direct counterargument. Madison says a large, diverse republic is the solution to faction. Brutus says it is the problem. They are looking at the same country and reaching opposite conclusions. Neither has been fully vindicated by history.
Nine days before Hamilton published Federalist No. 1, a writer using the pseudonym Brutus — now confirmed by 2025 documentary and computational evidence to have been Melancton Smith, a New York merchant-lawyer and the most formidable Anti-Federalist debater at the New York ratifying convention — published the first of sixteen essays addressed to the citizens of New York. For over two centuries the essays were attributed to Robert Yates, a New York judge who had walked out of the Constitutional Convention in protest; computational stylometry and a newly uncovered 1788 letter have since settled the question in Smith's favor.
Smith had followed the convention closely and knew its opponents intimately. He believed what was being proposed would eventually destroy the liberty it claimed to protect. And he made his case in print, directly, before the Federalists had finished making theirs.
Brutus No. 1 is the most important Anti-Federalist document, and the least read. It anticipates, with uncomfortable precision, several of the constitutional crises of the next two centuries.
If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty... then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn. But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty... this only remaining asylum for liberty will be shut up, and posterity will execrate your memory.
This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends.
In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other.
In so extensive a republic, the great officers of government would soon become above the control of the people, and abuse their power to the purpose of aggrandizing themselves.
The opening move: the highest possible stakes.
Brutus opens with more gravity than rhetoric. He is not merely arguing against a political document. He is arguing that the decision before the citizens of New York is the most consequential any people has ever faced — that if they ratify correctly, they secure liberty for generations; if they ratify wrongly, they destroy the last remaining refuge for human freedom. This is not hyperbole for its own sake. It is a serious claim about what constitutions do: they are not temporary arrangements but foundational structures that shape everything that follows. Change them after the fact and you discover how well they were designed to resist change.
The consolidation argument.
Brutus's first and most technical argument is that the Constitution, whatever it says about the relationship between states and the federal government, contains mechanisms that will inevitably produce a single consolidated national government. The evidence is in two clauses most citizens had not read carefully.
The necessary and proper clause gives Congress power to make all laws necessary to execute any of its enumerated powers. The supremacy clause declares that federal law is the supreme law of the land, binding state judges even when it conflicts with state constitutions or laws. Together, Brutus argues, these clauses mean that federal power has no practical ceiling. Any state law can be nullified if Congress determines it interferes with federal purposes. And Congress alone determines what is necessary and proper — meaning Congress is, in effect, the judge of its own limits.
This is the subtler and more alarming part of Brutus's argument. The threat is not merely that the republic is large. It is that the Constitution's text is written in language broad enough to authorize whatever a future Congress wishes to do. Size creates the conditions for consolidation; the necessary and proper clause provides the legal mechanism. A small republic with the same clauses would face the same trajectory. The problem is not geography — it is unlimited construction of federal power, dressed in constitutional language that appears to limit it.
This is not a distant hypothetical. It is a description of what the text says. The history of the Commerce Clause, the Necessary and Proper Clause, and federal preemption doctrine across the next two centuries would bear out the analysis in ways Brutus could only predict.
The large republic argument — the direct answer to Madison.
Here Brutus makes his central philosophical claim, and it is in direct collision with Federalist No. 10.
Brutus invokes Montesquieu, whose Spirit of the Laws was the most authoritative political text of the era: free republics are only possible in small territories. In large ones, the diversity of interests, manners, and circumstances is too great to be governed by consent. Either the government must rule by force — maintaining itself through standing armies and aggressive taxation — or it dissolves into irreconcilable faction and collapse. There is no arithmetic of diversity that resolves this. Diversity, for Brutus, is not a solution. It is the problem.
Crucially, both Madison and Brutus are reading the same historical record — the Greek city-states, the Roman republic, the Italian republics of the Renaissance — and drawing opposite conclusions from it. Madison sees Athens and Rome as cautionary examples of what happens when faction goes uncontrolled in small polities, and concludes that scale is the remedy. Brutus sees the same examples and concludes that republics collapsed precisely when they grew too large for citizens to govern themselves, and that the proposed Constitution was repeating that fatal error. They are not arguing from different facts. They are arguing about what the facts mean.
Madison had argued that a large republic contains so many competing factions that no single one can dominate. Brutus accepts the premise and inverts the conclusion: a republic in which no faction can form a stable majority is not a republic controlled by its citizens — it is a republic that cannot govern itself and will therefore be governed by its officers, who will accumulate the power the people cannot exercise. The multiplication of interests doesn't produce balance. It produces paralysis, which produces executive consolidation.
Why representation breaks down at scale.
In a small republic, citizens know their representatives. They can observe their conduct, hold them accountable through proximity and community pressure, and replace them when they fail. Representatives, knowing this, have concrete incentives to serve their constituents faithfully.
In a republic the size of the United States, this relationship breaks. A representative serving tens of thousands of constituents spread across vast geographic distances cannot know them, and they cannot know him. Election becomes a process of selecting from names, not characters. Accountability becomes theoretical. The representative owes his position not to the ongoing judgment of an engaged community but to a campaign conducted at a distance — and will govern accordingly.
Brutus presses this further with a specific and uncomfortable prediction: in a large republic, elections will not in practice select the most capable citizens. They will select the wealthy and the well-connected, because only those with resources can make themselves known across a vast and dispersed electorate. Ordinary citizens, uncoordinated and remote from each other, cannot effectively evaluate distant candidates or organize opposition to those who disappoint them. Representation becomes, in his word, "merely nominal" — a formal process that legitimizes the rule of an elite without genuinely transferring sovereignty to the people. Madison argued that large constituencies would surface candidates of broader merit. Brutus argued they would surface candidates of greater wealth and influence. The modern campaign finance system, in which name recognition and fundraising capacity largely determine electoral outcomes, suggests Brutus had the sharper insight.
Brutus anticipates, with some precision, the modern incumbency problem: as government grows more distant and complex, ordinary citizens lose both the capacity and the will to monitor it, and the gap between representative behavior and constituent interest widens indefinitely.
The taxation and standing army warnings.
Federal power to tax without limit and to maintain standing armies in peacetime were, for Brutus, the specific mechanisms through which consolidation would be accomplished. Tax revenue flows to the federal government; states are left with insufficient resources to maintain themselves; they wither; the central government fills the vacuum. Standing armies, never needed in a republic of free and armed citizens, become instruments of enforcement once the government has moved beyond the reach of popular accountability.
These were not paranoid fears. They were historically grounded observations about how republics had collapsed before — and about what the British government had done to the colonies within living memory.
The judicial power — briefly here, fully developed in Brutus No. 11.
Brutus flags the Supreme Court as a particular danger: its jurisdiction is nearly unlimited, its tenure is permanent, and there is no mechanism for popular accountability of any kind. He does not fully develop this argument in No. 1 — that comes in Brutus No. 11, which may be the most prophetic document in American political writing. But the concern is present from the start: a judiciary insulated from accountability and empowered to interpret the Constitution's broadest clauses will inevitably expand federal power until the states are hollow.
The consolidation argument has largely been vindicated. The necessary and proper clause and the supremacy clause have, over two centuries, produced precisely the expansion of federal authority Brutus predicted. The Commerce Clause alone authorized a scope of federal regulation the founders would not have recognized. Whether this is good or bad is a separate question — but that Brutus correctly identified the constitutional mechanism is not seriously disputed.
The representation argument has also aged well. The distance between citizens and their federal representatives has grown in every dimension Brutus described — geographic, informational, institutional. The modern Congress is accountable, in practice, less to its constituents than to the organized interests that fund its campaigns. Brutus did not predict the specific mechanism (he lacked the concept of mass media, let alone social media), but he correctly identified the structural direction.
He underestimated the republic's adaptability. The Constitution Brutus feared has been amended, reinterpreted, and operated by actors across two and a half centuries in ways that have sometimes vindicated and sometimes confounded his predictions. The republic has survived — though the form of that survival would not uniformly reassure him.
The Bill of Rights was an Anti-Federalist achievement. The first ten amendments — guaranteeing freedom of speech, press, religion, and the right to trial — were added precisely because Brutus and his allies insisted on them as a condition of ratification. Madison initially opposed a bill of rights; the Anti-Federalists forced it. This is not a small thing. Brutus's predictions about federal power expansion were partly correct; his insistence that the document needed explicit protections for individual liberty was completely correct, and the republic is better for it.
He correctly identified structural expansion; he overestimated tyrannical abuse. Federal power has expanded in every direction Brutus predicted — taxation, military, regulation, judicial reach. But the republic has not descended into the overt despotism he most feared. States still exercise meaningful authority over education, criminal law, family law, and much else. The expansion of federal power has often been used to protect rights Brutus valued — ending slavery, securing voting rights, enforcing civil liberties against state governments. Structural consolidation and tyrannical abuse are not the same thing, and conflating them was Brutus's sharpest error.
His alternative was not fully specified. Brutus argues against the proposed Constitution but is not fully explicit about what he prefers. The Articles of Confederation were failing — he acknowledges this. A loose confederation of small republics may have been theoretically preferable in his framework, but whether it was actually available as a political option in 1787 is doubtful. Critics of a design bear some responsibility for the viability of their alternatives.
He did not fully account for the capacity of diversity. The United States is, by any historical measure, an improbable success as a large and diverse republic — imperfect, contested, and frequently failing its own principles, but enduring through a civil war, two world wars, economic collapse, and social upheaval that would have destroyed most political systems. Madison's bet on the arithmetic of diversity has had more to recommend it than Brutus predicted, even as some of Brutus's specific warnings have been confirmed.
Consolidated power — specifically, the gradual absorption of state authority and individual liberty by a central government operating through broad constitutional language, sustained by taxation and military force, and insulated from popular accountability by its distance from the governed.
Brutus believed this was not a possible outcome of the Constitution. He believed it was the inevitable one, given the mechanisms the document contained.
The tension Brutus identified — between the scale necessary for national power and the intimacy necessary for democratic accountability — has no clean resolution in any democracy.
Switzerland has managed it through radical decentralization: a federal government with genuinely limited powers, strong cantonal autonomy, and direct democracy mechanisms (referenda, initiatives) that give citizens ongoing control over policy rather than merely periodic control over personnel. It is the closest approximation to the Anti-Federalist vision that exists in a functioning modern state.
Germany's Basic Law reserves substantial powers to the Länder and includes an explicit eternity clause — certain federalism provisions cannot be amended even by constitutional supermajority. The founders of the postwar republic took the consolidation risk seriously enough to make some protections permanent.
The European Union represents a different experiment: a large, diverse transnational entity trying to maintain democratic accountability at continental scale. Its democratic deficit — the persistent gap between EU institutions and European citizens — is the Brutus problem stated in modern form and not yet solved.
The specific mechanisms Brutus feared — necessary and proper, supremacy, unlimited taxation, standing armies — have all been deployed in the directions he predicted. Whether the result is tyranny or effective modern governance depends on where you stand politically, which is itself a kind of vindication of his core claim: a government this powerful, operating at this distance, will be experienced very differently by citizens with different interests and different relationships to state power.
The accountability problem is the most acute surviving concern. Brutus argued that representation at continental scale is too attenuated to be real. Contemporary approval ratings for Congress, which have averaged around 20 percent for most of the past two decades, suggest the relationship between citizens and their federal representatives has become exactly as thin as he predicted.
He was wrong that the republic could not survive its own scale. He was not wrong about what survival would cost.
Federalist No. 10 (James Madison, November 22, 1787) — the direct counterargument to the case Brutus was making. Madison wrote No. 10 a month after Brutus No. 1 appeared, responding to precisely the Anti-Federalist critique that a large republic cannot sustain republican government. Read together, they show the actual intellectual contest at the founding — not a consensus ratification of obvious truths, but a genuine argument about the nature of republican government that history has not fully resolved in either direction.
Brutus No. 11 (January 31, 1788) — the same author's prediction of Supreme Court overreach, written with a precision that will disturb any reader who knows what the Court has become. The natural continuation of the accountability argument begun here.
Original text: ~5,000 words | This treatment: ~1,800 words
[lockeproject.org — in development]
Primary Text
- Brutus [Melancton Smith]. "Brutus No. 1." New-York Journal, October 18, 1787. Full text: Teaching American History, teachingamericanhistory.org/document/brutus-i. Also: Constitution Society, constitution.org/1-Constitution/afp/brutus00.htm.
On Authorship
- Zuckert, Michael P., and Derek A. Webb, eds. The Anti-Federalist Writings of the Melancton Smith Circle. Indianapolis: Liberty Fund, 2009. The definitive computational and contextual case for Smith's authorship, including appendix stylometric analysis.
- "Confirmed: Antifederalist Melancton Smith was Brutus." Statutes and Stories (blog), 2025. statutesandstories.com. Presents the newly uncovered January 23, 1788 letter from Smith to Abraham Yates Jr. as direct attribution evidence.
- Wikipedia, "Brutus (antifederalist)." Updated February 2026. Notes: "In 2025, new evidence was discovered confirming that Melancton Smith was Brutus." ⚠️ "Confirmed" reflects the current scholarly momentum but some traditional sources still list Yates. Recommend noting for Rachel as a question worth checking against current academic consensus.
On Montesquieu
- Montesquieu, Charles de Secondat. The Spirit of the Laws (1748), Book VIII, Chapter XVI. The specific passage Brutus cites: "It is natural to a republic to have only a small territory, otherwise it cannot long subsist." Full text available at constitution.org.
On the Necessary and Proper Clause — Historical Vindication
- McCulloch v. Maryland, 17 U.S. 316 (1819). Marshall Court's broad interpretation of the necessary and proper clause — the first major judicial confirmation of Brutus's prediction.
- Wickard v. Filburn, 317 U.S. 111 (1942). Commerce Clause expansion to regulate wholly local activity — the high-water mark of the consolidation Brutus predicted.
On Representation at Scale
- Melancton Smith's speeches at the New York Ratifying Convention, June 20–21, 1788. In Zuckert and Webb above. Smith's "natural aristocracy" argument — that large constituencies select wealthy and well-connected candidates rather than meritorious ones — is the direct source for Brutus's representation critique and its modern resonance.
On the Bill of Rights as Anti-Federalist Achievement
- Labunski, Richard. James Madison and the Struggle for the Bill of Rights. New York: Oxford University Press, 2006. Establishes the Anti-Federalist pressure that drove Madison to champion the amendments he had initially opposed.
On Switzerland as Anti-Federalist Approximation
- Kriesi, Hanspeter, and Alexander H. Trechsel. The Politics of Switzerland: Continuity and Change in a Consensus Democracy. Cambridge: Cambridge University Press, 2008.
On Germany's Eternity Clause
- German Basic Law, Article 79(3). Full text: gesetze-im-internet.de/englisch_gg. Prohibits constitutional amendments touching federalism and human dignity provisions.
On Congressional Approval Ratings
- Gallup, "Congress and the Public." news.gallup.com/poll/1600/congress-public.aspx. Long-running tracking poll; confirms sustained sub-25% approval for most of the past two decades.
On the EU Democratic Deficit
- Føllesdal, Andreas, and Simon Hix. "Why There Is a Democratic Deficit in the EU." Journal of Common Market Studies 44, no. 3 (2006): 533–62. The standard academic treatment.
© 2026 Brian Ball. All rights reserved. This treatment may not be reproduced without permission.
Contact: btball@gmail.com | lockeproject.org