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What the Anti-Federalists Can Teach the European Union

The American Anti-Federalists offer important lessons that can help understand many dilemmas the European Union faces today.


The liberal democratic world order may be expressed in its simplest form by the famous introduction of the American Federalist Papers. Their author, Publius, begins with the question of “whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”[i]

The affirmative answer to this question is the bulwark for liberal democracies around the world today from the United States to Europe. At the very beginning of the Federalist argument, Publius looks beyond America. He contends that the wrong answer to this question would be to the “general misfortune of mankind.”[ii] Publius saw that the birth of a stable liberal democracy guided by a wise Constitution would affect all mankind. Publius produces an elegant defense of the proposition that man can be governed by “reflection and choice” with a federal republic in which energy and liberty are made to go together.[iii] However, a group of dissenters contested Publius’ argument and sought to reject the Constitution.

This group was known as the Anti-Federalists. They opposed the Constitution for various reasons but ultimately considered themselves the true federalists. They believed that the Constitution created a national government that would ultimately infringe on and swallow up the sovereignty of the states.[iv] Many of their concerns parallel those who opposed the Founding Treaties of the EU, from Maastricht onward, stretching into current debates about EU federalism and Member State sovereignty.

The Anti-Federalist’s contributions, although sometimes read as polemics, offer a positive vision of a federalist system that they believed was more conducive to securing “the blessings of liberty” for their posterity, as resounded by the famous words of the preamble to the US Constitution. Like the Federalists, they still sought to be governed by “reflection and choice,” but thought the proposed Constitution was insufficient to these ends. They feared not the Constitution, nor the ideas of federalism, but what they would become. The Anti-Federalists can contribute enduring advice to the European Union regarding the problem of large republics and democratic governance systems, government’s aristocratic nature, and the danger of complexity in governance.[v]

The Problem of Liberty in Large Republics and Democracies

The Anti-Federalists did not believe that a free republic could long endure if it covered a vast territory with a heterogeneous population. History up until that point was on their side.[vi] The Hellenic and Roman Republics fell away from liberty as their empires expanded changing from “free governments to those of the most tyrannical that ever existed in the world.”[vii] The Anti-Federalists feared that a large republic would by its nature be governed in a distant federal city far away from the people.[viii] Furthermore, they argued that the cultural diversity of the states was too great even in the 1780s to be governed by a single order.[ix] They believed that Federal leaders would be unable to attend to these conditions in the way that local leaders ought to be able to.[x]

Drawing on Montesquieu the Anti-Federalists noted the diversity of climate within the already wide borders of the country. The New Englander saw their colder climates as producing industry and an industrious people while the Southerner, likewise, saw himself as of different, more gentlemanly manners in the warm South.[xi] So too must their laws be different to cover their differing mores and concerns, according to the Anti-Federalists.[xii] The Federal Farmer worried that “different laws, customs and opinions” would be done away with if a central republic was to be created.[xiii]

The European Union faces challenges far greater than those that the Anti-Federalists were concerned with. While it is not formally a republic the EU is a system of democratic governance and rule-making that encompasses a population of over 448 million and extends across almost all of Europe. It is made up of twenty-seven sovereign countries, all with unique histories and diverse constitutions. Most of the countries of the Union speak a diverse set of languages and dialects.

The governability of such a union would not been thought possible by either the Anti-Federalists or Montesquieu. It is a continuing challenge for the Union to hold so many sovereign republics together across such a large stretch of land. Many of the problems currently facing the European project can be found by comparing the Anti-Federalists’ concern about the size of republics in the Americas to the many member states.

Brussels is often seen as distant and disconnected from of the rest of Europe, a “federal city” if you will, bringing about the discourse of democratic deficit in the European context. The Anti-Federalist warning that leaders ought to be close to the people offers a degree of salience. The European Parliament is in some ways inadequate as a means of representing the concerns and feelings of such a large group. Groups that feel underrepresented often turn to populism as a way of fighting back against the establishment. Indeed, the United Kingdom Independence Party’s predecessor was briefly called the Anti-Federalist League. In their case, since Brexit, these concerns are done with, but they persist throughout the remainder of the integration.

The Union has grown even more difficult to govern as diversity has increased from sources globally. The rise of populism in Europe is no doubt partially as a result of an increase in global migration and the disintegration of previously homogenous groups.[xiv] This is not to say that these challenges are insurmountable, however it seems as though leaders in Brussels have underestimated them, however expertly they have decided to approach them in the past.

The Problem of Expert Rule

A chief concern for the Anti-Federalists was the aristocratic tendency of government.[xv] The Federal Farmer argued that full and equal representation requires leaders with the “same interests, feelings, opinions, and views of the people themselves would were they assembled.”[xvi] The Anti-Federalists saw great importance in the representation of “every order of men” including “professional men, merchants, traders, farmers, mechanics, etc.”[xvii]

The Anti-Federalists distrusted even those with generally brilliant talents and abilities.[xviii] The Federal Farmer writing favorably on the issue of election of congressional districts wrote, “in my mind, is of far more importance than brilliant talents, I mean a sameness, as to residence and interests, between the representative and his constituents.”[xix] In some ways, they foresaw the knowledge problem and the value of local over expert knowledge.[xx] They were keenly aware that it is not enough for good men to rule as law and constitutions exist to restrain the bad who would inevitably also rise to the top.[xxi]

Brutus also saw many offices and authorities as directly leading to the concentration of authority in the most ambitious.[xxii] He noted that the limited number of legislators in such a large country would confer power to the “Rich and well born.”[xxiii] Likewise, within the aristocratic tendency, those “elevated in society are often disgusted by the changeableness of democracy.[xxiv]

These concerns of the Anti-Federalists resonate today with the undertones of the perceived elitism of Brussels and the European Commission. The present structure of the European Council and College of Commissioners gives a small number of individuals extraordinary power over such a vast union. For many Jean-Claude Juncker symbolized the pinnacle of aristocracy and his successor Ursula von der Leyen comes from a dynastic old money family. The Anti-Federalists would not be surprised that given the small number of positions at the head of Europe only the wealthiest would be elevated.

The problem of expert rule has emerged as a deeper danger to freedom in Europe. Many policymakers are viewed as unresponsive to and disinterested in the concerns of those who are governed by their regulations.[xxv] The Commission operates with the assumption that the rule of experts can bring about best practices throughout the entire Union.[xxvi] As the Anti-Federalists saw determining best practices for a diverse population proves nearly impossible. Further, even if the EU were to succeed in finding Europe’s best talents to provide expert decision-making, their distance from the people resulted in the fact that the outcome has and will continue to have fallen on deaf ears.

The Problem Complexity

The Anti-Federalist believed that American constitution was too complex and impossible to understand for the common man.[xxvii] Patrick Henry declared that “a constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man.” The Federal Farmer warned that many powers crucial for the ordinary government were ill-defined.[xxviii] He wrote that “Men who govern, will in doubtful cases, construe laws and constitutions most favorably for encreasing [sic] their own powers.”[xxix] Various Anti-Federalists criticized sections such as the commerce clause and the supremacy clause which they correctly predicted would expand the power of the national government. These concerns regarding complexity and ambiguity in law have enduring relevance.

European Union law has emerged as a complex web of treaties in regulations incomprehensible to many without advanced graduate degrees. As economist Gordon Tullock showed, complexity in law gives rise to vagueness as judges and lawyers develop vastly different understandings of it.[xxx] Furthermore, the EU’s requirement of uniformity results in complexity as regulators seek to create a single market through the use of complicated and often incomprehensible tools.

European Competition law has come under international scrutiny for a number of high-profile cases against foreign-based companies such as Microsoft and Intel.[xxxi] It is notably extremely complex[xxxii] and requires that a vast system of European regulators exist in order to determine both when companies are considered to have a dominant position in a market and what activities they are then allowed to carry out.[xxxiii] Even with this imperative and billions of dollars at stake, the courts have still not provided a clear definition of what an abuse of a dominant position even is.[xxxiv]


Anti-Federalist thought has been too long neglected. While they wrote on American Politics, they still relied on the experience of others. Their proactive critique of the types of republics and democratic governance systems today should be judged on their merits and not the fact that they lost the debate at the time.

It is not that they squarely denied the possibility of large republics, but rather that such orders were not conducive to liberty and human flourishing. Some of the freest and most prosperous nations on earth are small democracies with homogeneous populations. At the same time, large republics such as the United States and large Unions like the European Union with similar governance structures have achieved greatness and freedom either because of or despite their size. What can be learned by examining the Anti-Federalist argument and then comparing it to the experience of the European Union is that there are costs to achieving governance over a vast, diverse, number of divided sovereign republics and kingdoms. When ordering these legal and governance institutions, lawmakers ought to consider these difficulties, recognizing the limitations of scale.

As to complexity, a governmental system as it acquires more competences will inevitably become increasingly complex. What the Anti-Federalists were concerned about within the American context was that so many vague authorities were offered by the United States Constitution. In the European context, the Union has issued ambiguous rules as a result of a need for uniformity across national boundaries. Both these instances have resulted in complex legal systems that have grown out of differing interpretations and implementation of centralized rules. The digital age has promised means of simplification in areas from taxation to competitive analysis. When considering reforming competences within the European Union, the Anti-Federalist wisdom of simplicity through decentralization should serve as a guidepost.

Experts have a place in global governance and their contributions should not be entirely diminished. To some degree, the Anti-Federalists were populists on this issue which is underscored by their love and passion for the jury. Their populism was not of an anti-intellectual sort as they often appealed to the great thinking of experts on governance. Instead, what the Anti-Federalists believed in was a civic republicanism in which great minds could help the people cultivate their own virtue and then rule themselves. For this reason, it seems unlikely that they would oppose expert advisors, as are so numerous in the European Union, so long as the actual rule-makers have connections to the people. Trust in the Anti-Federalists was essential to citizenship, and in an era where so many do not trust their rulers or institutions, important lessons can be learned from the Anti-Federalists’ skepticism about who rules, whether it be an oligarchy or true aristocracy.

Nick Clifford is a Juris Doctorate Candidate at Indiana University Maurer School of Law. He is a fellow at Indiana University’s Ostrom Workshop studying the Anti-Federalist papers. Previously, Nick has done fellowships with the Hudson Institute, Hertog Foundation, Mercatus Center, Common Sense Society, and the James Wilson Institute. He was a law clerk for the Pacific Legal Foundation and for Sen. John Kennedy of Louisiana. Nick earned his B.S. in public affairs from Indiana University.

[i] Federalist No. 1 (Alexander Hamilton).

[ii] Id.

[iii] Id.

[iv] The Address and Reasons of Dissent of the minority of the convention of Pennsylvania to their constituents, December 12, 1787.

[v] For a longer explanation of these themes see Herbert Storing, What the Anti-Federalists Were For 15-18 (Univ. Chi. Press 1981).

[vi] Id. 15-18 (Univ. Chi. Press 1981).

[vii] Brutus I (Oct. 17 1787), in The Anti-Federalist: Writings by the Opponents of the Constitution at 113 (Herbert Storing & Murray Dry eds., 1985).

[viii] Cecelia M. Kenyon, The Political Thought of the Antifederalists, in The Antifederalists Xl (Cecelia M. Kenyon ed. 1966).

[ix] Id. at xli.

[x] Brutus supra note V, at 116.

[xi] Cecelia M. Kenyon, The Political Thought of the Antifederalists, in The Antifederalists Xli (Cecelia M. Kenyon ed. 1966).

[xii] Id.

[xiii] The Federal Farmer I supra note V, at 39.

[xiv] Claudia Postelnicescu, Populism and diversity: the challenges to national and European identity in the age of global migration, Brill Publishers, 5-6 (2018).

[xv] Herbert Storing, What the Anti-Federalists Were For 48 (Univ. Chi. Press 1981).

[xvi] The Federal Farmer II, supra note 7, at 39. 2.8.15

[xvii] Id.

[xviii] Herbert Storing, What the Anti-Federalists Were For 17 (Univ. Chi. Press 1981).

[xix] The Federal Farmer, An Additional Number of Letters to the Republican, New York, 2 May 1788, in The Documentary History of the Ratification of the Constitution Digital Edition (Kaminski et al. eds. 2009).

[xx] See. Elinor Ostrom, Governing the Commons 82-85 (Cambridge University Press 1990).

[xxi] Brutus IV supra note V.

[xxii] Brutus II supra note V.

[xxiii] Brutus IV supra note V, at 131.

[xxiv] The Federal Farmer supra note 7, at 79.

[xxv] Cris Shore, European Governance or Governmentality The European Commission and the
Future of Democratic Government
, 17 Eur. L. J. 287, 301 (2011).

[xxvi] Id.

[xxvii] Herbert Storing, What the Anti-Federalists Were For 54 (Univ. Chi. Press 1981).

[xxviii] Federal Farmer IV supra note V, at 54-55.

[xxix] Federal Farmer IVsupra note V, at 57.

[xxx] Gordon Tullock, On the desirable degree of detail in the law 2 Eur. J. Law Econ. 200, 207 (1995).

[xxxi] Lorenzo Federico Pace, European Competition Law: the Impact of the Commission’s Guidance On Article 102 153 (Edward Elgar ed., 2011).

[xxxii] Id.

[xxxiii] Article 102 TFEU.

[xxxiv] Lorenzo Federico Pace, European Competition Law: the Impact of the Commission’s Guidance On Article 102 154 (Edward Elgar ed., 2011).

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