Federal overreach has been a concern of Americans since the founding of this great country. This page discusses the birth of that fear through the abuses of the Crown, the purposeful weaknesses of Articles of Confederation to stem federal overreach, and the opposition to the Constitution of 1987 because of too much federal power.

Jefferson, one of the opponents of the Constitution said; “I consider the foundation of the Constitution as laid on this ground—that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people. To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” ( Thomas Jefferson, 1791)

Founders’ Fears of Federal Overreach

Experience with the abuses of the centralized power of the British Crown, located across the sea, conditioned colonist to believe that the greatest threat to individual liberties was a national government further removed from its citizens. So fearful were they of any federal overreach, that even while acknowledging the need to form a union to oppose the crown’s oppression, the colonies refused at first to surrender ANY state sovereignty to a national entity.

Even as tensions quickly escalated between colonists and the Crown, the colonies were slow to organize a national Congress (the First Continental Congress, followed by the Second Continental Congress—which became the Continental Congress during the Revolutionary War). Originally, these congresses existed to advocate boycotts and send representatives to petition the Crown on behalf of all 13 colonies, but as the war effort began to form, they organized colonial militias and appointed George Washington as commanding general.

The Continental Congress had no explicit legal authority to govern, but it assumed all the functions of a national government, such as appointing ambassadors, signing treaties, raising armies, appointing generals, obtaining loans from Europe, issuing paper money (called “Continentals”), and disbursing funds. This Congress also had no authority to levy taxes and was required to request money, supplies, and troops from the states to support the new war effort. Individual states frequently ignored these requests.

Articles of Confederation

In an attempt to strengthen its ability to wage a successful war with Britain, the Congress passed the Articles of Confederation. Its limited powers reflected the widespread fear of a federal overreach by the colonists—as well as their strong loyalties to their own state as opposed to any national government. As a result, the Articles essentially only established “a firm league” among the thirteen free and independent states—and it didn’t even come into “force” until ratified by the 13 states in 1781.

But in the pursuit of preserving the independence and sovereignty of each state, the central governments’ lack of power proved to be disastrous. The failure of the limits placed on the national Congress were clearest when it came to money issues.

 

Since the Revolution’s causes had centered on opposition to unfair taxes, the central government was given no power to raise its own revenues through taxation. Money needed to run the government and wage the war was still only “requested” of the states after the signing of the Articles. By 1780, with the outcome of the war still undecided, the central government had run out of money and the paper money it issued was basically worthless.

After the war, Shays’ Rebellion of 1786 occurred in western Massachusetts as a protest against rising debt and economic chaos. However, the national government was unable to gather a combined military force among the states to help put down the rebellion, making clear another serious weakness in the structure of the Articles of Confederation.

Other weaknesses of the Articles of Confederation would quickly lead to additional problems that the Founding Fathers realized would not be fixable under the current form of government. Many of these issues were brought up during the Annapolis Convention of 1786. These included the following:

Weakness #1
Each state only had one vote in Congress, regardless of size.

Weakness #2
Congress had trouble passing laws because a vote of 9 out of 13 states were needed.

Weakness #3
There was no executive branch to enforce any acts passed by Congress or to ensure that laws were carried out.

Weakness #4
There was no national court system or judicial branch to interpret laws for carrying out justice.

Weakness #5
The Articles of Confederation could not be changed without a unanimous vote from all states.

Weakness #6
Congress lacked power to collect taxes so it could not pay its debts.

Weakness #7
Congress did not have the power to regulate foreign and interstate commerce so government could not control trade between the states. States could levy tariffs on other states’ goods.

Weakness #8
Each state had its own currency so there was no stable national currency.

U.S. Constitution of 1987-Federalists vs. Anti-Federalists

Some of those who strongly advocated for the need of a constitutional convention to correct the weaknesses of the Articles of Confederation became opponents of what they saw as an over-correction of the Articles’ flaws. These opponents became known as Anti-Federalists.

Anti-Federalists argued that the Constitution centralized states’ power to the federal government, by taking too much power away from state and local governments.   Many felt that the federal government would be too far removed to represent the average citizen—quickly leading to federal overreach of each branch.

Anti-Federalists feared the nation was too large for the national government to respond to the concerns of people on a state and local basis and would result in either a tenured bureaucracy or one that shifted with each prevailing President. Both have occurred in our history and both have contributed to either federal overreach or significant inefficiency—we currently suffer with both effects.

The Anti-Federalists also shared the feeling that so large a country as the United States could not possibly be controlled by one national government. The Anti-Federalists believed that the proposed Congress would be too aristocratic in nature, with too few representatives for too many people. They also believed that the Constitution gave the president too much power, which would lead to abuses from federal overreach in place of abuses by the Crown.

The Anti-Federalists were also worried that the original text of the Constitution did not contain a bill of rights.  They wanted guaranteed protection for certain basic liberties, such as freedom of speech and trial by jury. We can thank these people for the few remaining protections we have today under the Bill of Rights drafted to win their support.

Federal Overreach by the Courts

Similar to how they felt about the rest of the proposed federal government, the Anti-Federalists believed the Constitution granted too much power to the federal courts, at the expense of the state and local courts.  They argued that the federal courts would be too far away to provide justice to the average citizen.

In one publication an anti-federalist (Judge Robert Yates) observed that, in England, judges’ determinations are subject to correction by the House Of Lords. But the American Constitution has no such provision for correcting the errors of the Judicial Branch. In fact, he said, the powers of the Judiciary under the proposed U.S. Constitution “transcends any power before given to a judicial by any free government under heaven.”

Yates further saw the unelected, virtually untouchable Judiciary, as one of the greatest enablers of federal overreach into State sovereignty. “Perhaps nothing could have been better conceived to facilitate the abolition of the State governments,” he wrote, “than the constitution of the judicial.” They will be able… “to extend the limits of the General Government gradually, and by insensible degrees.”

In another publication he predicted that… “the Judicial power of the United States will lean strongly in favor of the General Government and will give such an explanation to the Constitution as will favor an extension of its jurisdiction.”

20/20 Hindsight on Federal Overreach

Looking at our heavy handed federal government today with federal overreach in all three branches that were designed to separate powers and provide checks and balances, it is easy to see that the anti-federalists’ fears were well founded.

Of course it must be recognized that while these wise men were bound together in opposition to the Constitution, they were not in agreement on what should be used in its place. Who can say what our nation would look like under some other form? What we do know is it is better because of what these anti-federalists did to limit federal overreach into our individual liberties through the adoption of the Bill of Rights to the Constitution of 1987.