Copyright 1990 by Northwestern University, School of Law Printed in U.S.A. Northwestern University Law Review Vol. 84, No. I THE ANCIENT CONSTITUTION VS. THE FEDERALIST EMPIRE: ANTI- FEDERALISM FROM THE ATTACK ON "MONARCHISM" TO MODERN LOCALISM Carol M. Rose* Anti-Federalism is generally thought to represent a major "road not taken" in our political history. The Anti-Federalists, after all, lost the great debate in 1787-88, while their opponents' constitution prevailed and prospered over the years. If we needed proof of the staggering vic- tory of the Federalist Constitutional project, the 200th anniversary cele- brations of 1987 would certainly seem to have given it, at least insofar as victory is measured by longevity and adulation.' One of the most imposing signals of the Federalists' triumph is the manner in which their constitution has come to dominate the very rheto- ric of constitutionalism. This is particularly the case in the United States, where the federal Constitution has the status of what might be called the "plain vanilla" brand-a brand so familiar that it is assumed to be correct for every occasion. This Constitution is the standard by which we understand and judge other constitutions, as for example those of states and localities. 2 Indeed, the federal Constitution's rhetorical dominance extends to some degree even to other parts of the world, when foreign citizens look to it for guidance about their own governmental 3 structures. What, then, might be left over for the defeated Anti-Federalists? This Article is an effort to reconsider the degree to which the Anti-Feder- alist road may still be trod after all, and in particular to reconstruct some * Professor of Law, Yale University. A.B., Antioch College (1962); M.A., University of Chi- cago (1963); Ph.D., Cornell University (1969); J.D., University of Chicago (1977). The author wishes to thank Bruce Ackerman, Greg Alexander, Frank Michelman, William W. Fisher and the members of the Harvard Seminar on Law and Governance for helpful comments on earlier drafts. I Cf. M. KAMMEN, A MACHINE THAT WOULD Go OF ITSELF 3-5 (1986) (popular adulation of the Constitution). 2 See., e.g., Waggoner, Log-Rolling andJudicial Review, 52 U. COLO. L. REv. 33, 42-43 (1980); Note, City Government in the State Courts, 78 HARV. L. REV. 1596, 1597-99 (1965) (comparing local governmental institutions unfavorably to federal ones with respect to protection of individual rights). 3 M. KAMMEN, supra note 1, at 93 (19th century Russian and Latin American governments looked to U.S. federal constitutional model, along with those from France and Spain). HeinOnline -- 84 Nw. U. L. Rev. 74 1989-1990 84:74 (1989) Anti-Federalism: "'Monarchism"to Modern Localism elements of Anti-Federalism that have been incorporated into a tradition of local autonomy. This Article will argue, among other things, that Americans do have a tradition of localism, and that this tradition rests on a rather different, and indeed much older, version of constitutionalism than the one that is often associated with the Federalists' plain vanilla Constitution. I will try, first of all, to get at that older tradition by illustrating the ways in which the Federalist version of constitutionalism clashed with it; in that connection I will try to locate Federalist constitutionalism histori- cally and theoretically in the eighteenth century Western political topog- raphy. Here I will consider most particularly the Anti-Federalist claim that the proposed Federalist Constitution was "monarchical," and will point out the parallels between European monarchic projects and the centralizing and commercializing aspects of Federalism. Next, I will dis- cuss the ways in which the Anti-Federalists elaborated at least some ele- ments of the older version of constitutionalism. I will then argue that this older version of constitutionalism has continued to survive locally, despite an intellectual environment that is dominated by Federalist rhet- oric to this day. Finally, however, I will argue that the localist tradition has also been affected by its complex symbiosis with the centralizing and commercializing Federalist program. I. THE "PLAIN VANILLA CONSTITUTION" AND THE "ANCIENT CONSTITUTION" Without question, the Federalists' "plain vanilla" constitutional model contains innumerable ambiguities, and always has.4 Without question too, there have been quite far-ranging attacks on the original plain vanilla model, and departures from it as well. Several legal scholars have argued recently that these departures have occurred particularly in this century, as the national governing scheme incorporated New Deal concepts. 5 Still, that plain vanilla Federalist model has a set of elements that are widely understood, and widely thought to structure the actions of our national government. Theoretically (if somewhat imperfectly in practice), our government is supposed to function through a series of familiar mechanics: there are divisions of branches and checks and balances among the branches; there are equal and uniform laws, operating directly on the people; there is a popular representation, constructed in such a way that many interests appear in the representative body and that no one interest can dominate 6 the others. 4 Id. at 5-7; cf id. at 30-35 (disagreements and conflicts are in context of larger consensus). 5 See Sunstein, ConstitutionalismAfter the New Deal, 101 HARV. L. REV. 421, 422-25 (1987); see also Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1052-56, 1069 (1984) (sees New Deal as example of constitutional change). 6 Sunstein, supranote 5, at 430-37 (setting out traditional mechanics of Federalist government). HeinOnline -- 84 Nw. U. L. Rev. 75 1989-1990 NORTHWESTERN UNIVERSITY LAW REVIEW One underlying theme of these structural features is the protection of rights, since the mechanical playing-out of the whole structure works to impede incursions on individual entitlements. 7 Historically, the right that was thought to need greatest protection was the right to acquire and hold property.8 Today, of course, that emphasis on protecting property engenders much more debate,9 but it is still fair to say that the plain vanilla model of a constitution, with its attention to individual entitle- ments, is one that the Marxists might dub bourgeois democratic. Like most of the other constitutions in the modern western democracies, the Federalist Constitution has strong connections with entitlements-con- scious capitalist economic processes. There are indeed other constitutions, but in our own time, their op- erations are often explained by reference and comparison to this plain vanilla model, and critiques of the actual operations of our government often refer to the plain vanilla model that we are perhaps erroneously thought to have.10 But when we think back to the time of the adoption of the Constitution, and to the debates over its ratification, the provincial- ism of our view comes into relief. The debates of that time show how mistaken it would be to suppose that the Federalists' Constitution has always represented the basic model of a constitution, on which all others are more or less mere variants. Years before we adopted our plain va- 7 See id. at 433-37 (pointing out relationship between traditional constitutional structure and protection of rights, including private property). 8 See id.; see also THE FEDERALIST No. 10 (J. Madison); cf Sunstein, supra note 5, at 439-40, 443 (contrasting Madisonian association of separation of powers and protection of property, with New Deal rejection both of separation of powers and property rights); id. at 452 (summarizing modem criticism of New Deal's abandonment of separation of powers). 9 One signal of this point is the heated controversy raised by Richard Epstein's book TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985), which attempts to place prop- erty in the position of a centrally located constitutional right, and argues against a trend of the last several decades that has downgraded property and economic rights and has focused on political rights such as voting, speech and assembly, as well as religion and equal treatment. For some of the quite sharp criticisms of Epstein's book, see Grey, The Malthusian Constitution, 41 U. MIAMI L. REv. 21 (1986); Kelman, Taking Takings Seriously: An Essay for Centrists, 74 CAL. L. REV. 1829 (1986); Sax, Takings, 53 U. CHI. L. REV. 279 (1986); see also Proceedings of the Conference on Takings of Property and the Constitution, 41 U. MIAMI L. REV. 49 (1986). More sympathetic is Merrill, Rent Seeking and the Compensation Principle, 80 Nw. U.L. REV. 1561 (1986). 10 For example, Cass Sunstein and Bruce Ackerman both compare the post-New Deal constitu- tionalism to what I am calling the "plain vanilla" model, arguing that the New Deal effected a de facto constitutional change of great magnitude, and that the federal Constitution isn't plain vanilla any more. See Sunstein, supra note 5, at 437-43; Ackerman, supra note 5, at 1053-55. Sunstein, however, would like to reform the New Deal model by reinstating some major elements of the plain vanilla model. See, e.g., Sunstein, supra note 5, at 483 (New Deal critique of three-part government "far too crude"; checks and balances can assist accountability). Some authors also compare state or local governmental structures to the larger federal Constitution's plain vanilla checks-and-balances, extended representation and so on. See, ag., D. MANDELKER & D. NETSCH, STATE AND LOCAL GOVERNMENT IN A FEDERAL SYSTEM 8-9 (1983) (comparing state constitutional powers to fed- eral); see also Waggoner, supra note 2, at 42-43; Note, supra note 2, at 1597-99 (comparing local governmental structure unfavorably to national). HeinOnline -- 84 Nw. U. L. Rev. 76 1989-1990 84:74 (1989) Anti-Federalism: "Monarchism" to Modern Localism nilla model, there was a very different vision of constitutionalism, a vi- sion captured in the phrase of J.G.A.