Annihilation Of Our Freedom
As national police power grows, American liberty declines.
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With an impending nearly fourfold increase to the budget of the Immigration and Customs Enforcement agency (ICE) and 10,000 new agents on the way, we have now reached a precipice in the evolution of the American republic. Perhaps more than any development in our history, the “Big Beautiful Bill” recently passed by Congress creates what both the Federalists and the Anti-Federalists at the time of the Constitution’s ratification would have considered something of an oxymoron: a national police force.
“Annihilation” was a favorite word of the Anti-Federalists as they launched their critique of the Constitution of 1787. The minority of the Pennsylvania ratifying convention published a newspaper editorial using the verb “annihilate” six times, broadcasting its fear that the national constitution would “annihilate the constitution of Pennsylvania,” that the powers given to Congress in Article I would “annihilate and absorb the powers” of the state governments, and that, ultimately, “its establishment will annihilate the state governments, and produce one consolidated government that will eventually and speedily issue in the supremacy of despotism.” While many Anti-Federalist writings trained their fire on the Necessary and Proper Clause and Congress’ powers under the new constitution, Robert Yates, writing famously as Brutus, made it clear that the eventual execution of these powers is what would snap the necessary tripwire to tyranny.
James Madison took the Anti-Federalists’ concerns seriously, and in Federalist essays 45 and 46, he sought to assuage (and occasionally insult) the Constitution’s skeptics. In Federalist 10 and Federalist 51 he pointed to the separation of powers and the benefits of what he called the “extended republic” as bulwarks against tyranny; but in essays 45 and 46 he made two particular arguments. First, he claimed that the national government could never be very strong because it would remain small in the number of its functionaries. “The number of individuals employed under the Constitution of the United States,” he boldly predicted, “will be much smaller than the number employed under the particular States.” They would also be employed near the seacoast, collecting duties and involved in international affairs, and so in the “interior” of the country their presence would be little felt.
Second, the real coercive authority within the space of the new nation would be exercised by the states, not the general government. As Madison wrote,
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.
The states had little to fear from the national government because they would retain basic police powers over “internal order,” and the collective force of state power would overwhelm any centralizing tyrannical force from the federal government.
Madison’s reassurances are becoming cold comfort in light of the One Big Beautiful Bill Act (yes, that is its statutory title). ICE will soon have a larger budget and more personnel than the Federal Bureau of Investigation (FBI). And more than the FBI, the inflated ICE apparatus will be stuffed with new hires who, precisely because of their novelty and mass, are far less likely to be schooled in norms about the rule of law and proper law enforcement procedure. The specter that these 10,000 new hires may be vetted for personal loyalty to President Trump and not an official loyalty to the Constitution is even more troubling.
As my Harvard colleague Theda Skocpol has written, a loyalist national police force has structural features that could accelerate America’s slide toward Hungarian-style autocracy. One of the principal hurdles to a Hungarian or 1930s fascist equilibrium in the United States would have been our federalist structure, the inability of the national government to project its power into the states, particularly in the maintenance of what Madison called “internal order.” As Skocpol has recognized, the massive expansion of ICE severely weakens an important historical-institutional constraint upon national-level authoritarian designs.
Nor is this particular expansion of ICE plausibly necessary for the larger aim of stemming the flow of illegal immigration. Months before the Big Beautiful Bill’s passage, the number of southern border crossings had fallen to near zero. They had already declined precipitously by July 2024. To be clear, there has been broad consensus among a majority of Americans (as well as across many industrialized democracies) that illegal immigration should be limited. Whether that consensus is changing now, as some predict, does not change the fact that it was an important factor in the recent national election. The Biden administration was late to the game of governing the border in line with his administration’s promises and the majority of Americans’ wishes, and the administration’s failure to regulate border flows contributed to widespread public dissatisfaction with his presidency. Gone, too, is the facile argument that somehow large flows of migrants across the southern border were a fact of life that could not be stemmed.
Still, the factors reducing border crossings from Mexico appear to be the reduced granting of asylum, an increase in Mexican immigration enforcement, and enforcement at the border. This fact has led Skocpol and others to suggest that it is the coercive force of the massive ICE expansion that is of greatest interest to the Trump administration.
The ghosts of Anti-Federalism remind us that as national police power grows, American federalism, and with it American liberty, will fall. They remind us, too, that this will not be a linear or continuous decline; that once freedom and decentralization are eroded to a sufficient extent, they are simply gone, and state sovereignty and freedom are reduced to nothing. Neither Madison nor Brutus would have disagreed with that prediction. They had learned from Montesquieu’s insistence that in the absence of the separation of powers, a regime has not merely less liberty but “no liberty whatsoever” (il n’y a point de liberté). The 1787 disagreement was not over whether a national internal police force was a bad thing, but over whether the Constitution would permit something like it to arise. American history suggests that Anti-Federalists like Brutus had a far stronger point than was then realized.
Our Authoritarian Moments
Let’s take a look at several of the most authoritarian moments of U.S. history: (1) the Adams administration and the Alien and Sedition Acts (1798) when politicians and newspaper editors were arrested merely for opposing presidential policy; (2) the Fugitive Slave Act of 1850 when a small but vicious force of marshals, deputies, slave catcher agents and slave owners roamed the North in search of black escapees; and (3) the history of the FBI in the twentieth century. In each of these cases the federal government used not the military but marshals, bureaucrats and contractors to impose forms of tyranny on the American people. In each case, a nationalized police machinery was as much or more of a threat than the statutes themselves, as federal officials routinely ignored or violated due process and expanded their powers beyond those envisioned under the law.
The Anti-Federalists are often consigned to the trash heap of history, but they were, in an important sense, founders in their own right. It’s very plausible that we would not have a Bill of Rights without them. (Hamilton’s Federalist 84, countering Brutus, was as clear an argument about charters of liberties that the Federalists ever made.) The Constitution of 1787 differed materially from the state constitutions of the period by not including a separate list of enumerated rights, only scattered guarantees that did not include freedom of speech, religion, assembly, petition, and regulated arms-bearing, among others.
The presidency of John Adams admits of a range of readings, but there is widespread agreement that his extension of national powers was greater than that envisioned by the Constitution’s framers, especially Madison. Beyond Alexander Hamilton’s designs for executive power, it was the federal government’s power under the Alien and Sedition Acts that led Madison to break decisively with his Federalist brethren and to join Thomas Jefferson in authoring and publicizing the Kentucky and Virginia Resolves against federal authority. In a book aptly entitled Criminal Dissent, historian Wendell Bird gives the most complete account of the Adams administration’s attempts to silence opposition and interfere with national elections. Bird shows that there were three waves of criminalizing dissent, which used the Sedition Act and a weaponization of the doctrine of seditious libel under common law. The first was the attack upon opposition presses, including Benjamin Franklin Bache’s Aurora Daily Advertiser (Philadelphia) and John Daly Burk’s and James Smith’s Time Piece (New York City). As Bird summarizes, these editors were “prosecuted because they published articles critical of the president, Congress, or the federal government – in other words, articles offensive to the governing party and supportive of the opposition.” Federal marshals apprehended these editors at the order of Secretary of State Timothy Pickering.
In a second wave, the administration targeted opposition members of Congress. In the most famous case, Federal marshals arrested congressman Matthew Lyon of Vermont, several months after the Federalist majority tried to expel him (they failed to secure the two-thirds needed). Lyon’s offense? His “statement that President John Adams subordinated the public welfare to power and pomp”—in other words, the kind of critical speech that should have clearly enjoyed First Amendment protection. But the marshals did more than arrest Lyon. They exercised quasi-judicial powers by selecting the members of both the grand juries and trial juries for Lyon’s prosecution. Lyon believed (probably rightly, according to Bird) that they hand-picked Federalist stalwarts for these positions.
In a third and final wave of prosecutions and trials, the Adams administration (again, with Pickering in the lead) targeted Republican opponents in the months before the 1800 elections. One of the most famous cases was that of Jedediah Peck, “taken from his bed at midnight, manacled and dragged from his home” in September 1799. Peck’s principal offense was circulating petitions against the Alien and Sedition Act. A Federalist judge issued an order threatening “two years imprisonment and a fine of two thousand dollars” for circulating Peck’s petitions and warning that “no author dare sign his name to them.” The federal marshal transported Peck over a five-day, 200-mile trip to New York City for arraignment. Another newspaper editor, Anthony Haswell, editor of the Vermont Gazette, was prosecuted for criticizing a federal marshal in an advertisement.
The 1850s saw democratic regression in the American South, witnessed partially in a sustained decline in popular petitioning to Southern state legislatures. Yet slaveholder interests cast their aspirations upon national politics and, with control of the federal government, wanted to harness national power to reduce losses from the flight of the enslaved. As documented in Stanley Campbell’s classic The Slave Catchers, the Fugitive Slave Act of 1850 built a new administrative apparatus, headed by a set of commissioners appointed by the U.S. Circuit Courts to oversee enforcement of the law. The ground-level enforcement occurred, again, through federal marshals and deputy marshals, and through “special officers” appointed by the commissioners acting under the powers of the posse comitatus doctrine. Following a more general pattern in early American administration richly studied by the Yale Law scholar Nicholas Parrillo, marshals and agents were paid fees that increased with the number of slaves apprehended and returned to slaveholders. An even more insidious incentive appeared in the form of a penalty. If a captured slave escaped from the marshal’s custody, the marshal was liable for the slave’s full value to the slaveholder.
The apprehension and incarceration system under the Fugitive Slave Act worked both quietly and loudly, depending in part upon abolitionist opposition and the degree of fanfare. Like the enforcement of the Sedition Act, there was little to no observance of due process in arrests and renditions. In some cases, their powers were expanded by administrative order, with one marshal receiving authority “to summon the entire able-bodied force of his precinct, as a posse comitatus.”
In a development that anticipates President Trump’s use of the California National Guard and the Marines to assist with ICE enforcement, partisan federal judges petitioned President Millard Fillmore for authority to use federal troops in cases of emergency—namely any resistance to the apprehension of escapees. Fillmore hesitated but agreed to provide troops only as a last resort. Later presidents (Franklin Pierce and James Buchanan) were more direct in their expressed willingness to use federal troops to establish administrative order in escaped slave capture.
The other parallel to the present was the extremist ideology harnessed, and perhaps produced, by the rapid scaling-up of the Fugitive Slave Act apparatus. The rendition machine of the Fugitive Slave Act was built rather quickly, and embodied something of the ethic of the time: what the historian Robert Churchill has called “the violence of mastery.” The slaveholders, their “slave catcher” agents, and the marshals and judges of the period who were active in enforcement of the 1850 Act demonstrated an “arrogance” founded in an “exaggerated display of hypermasculine domination with which Southerners performed their pretensions of mastery over other human beings during slave-catching forays into the North.” The 1850s serves as a warning that those called into the service of a national police force during a period of rapid organizational growth and political polarization are potentially more likely to display zealotry and animosity toward perceived political enemies, well beyond the official targets of law enforcement. What has become known as “performative cruelty” may, in other words, find fertile soil in an emerging organization that mushrooms in the midst of stark polarization.
With the rise of the FBI, the United States has had something of a national internal police force for roughly a century now, one that was shaped by J. Edgar Hoover as much as any other person. Historian Beverly Gage’s remarkable biography of Hoover shows that much of what the Bureau did remained secret until after Hoover’s death and the Watergate scandal. The American public was generally unaware at the time of the surveillance and harassment of Martin Luther King and allied civil rights organizations, a series of covert action programs against the Black Panthers, or the investigation of one of the nation’s first gay rights organizations, the Mattachine Society.
A critical feature of Hoover’s years at the FBI is that the enemies he combatted were often of his own making, or even imagination. Hoover was eagerly and constantly conceiving and reconceiving of enemies, from enemy aliens during the Second World War to communist organizations in the 1950s and 1960s. “As [Hoover] conceived it,” Gage writes, “the great enemy of 1957 was not so much the [Communist] party itself. It was the public apathy that might allow the communists time to rest and regroup.”
To be clear, there were important reasons—and there remain important reasons—for a national bureau of intelligence, particularly with the extensive threat of the Soviet Union in the twentieth century and the complicated geopolitical world we inhabit now. The point is not to denigrate many fine federal servants and the security work they do. It is to point to the danger that an apparatus constructed for one purpose becomes harnessed and repurposed for another, without public knowledge, without the accountability and statutory mechanisms of a democratic republic guiding the transition, and without the legal protections of due process.
The Future
Madison’s reassurance to the people of New York was that the state governments would be too powerful, and the people too forceful and numerous, to allow “a regular army, fully equal to the resources of the country” and “entirely at the devotion of the federal government” to bring the states under its control. Sheer government force is now, shall we say, far more capital-intensive than it was when Madison wrote, and with the centralization of the U.S. armed forces under the Root reforms of the Progressive Era and then two World Wars, one might argue that Madison’s line has long been crossed. Federal troops have been deployed, famously, to quell labor unrest and to regulate urban populations.
I’m still inclined to see the threat as one of who gets to maintain Madison’s “internal order,” or who gets to exercise the police powers that have long characterized state and local governments. Many other advanced industrialized democracies have national law enforcement agencies; you will see them in France, Italy, Germany, Canada. The threat that always attends these is that of conjuncture. A sufficiently extremist national leader, enabled by legislators and judges of their own choosing or merely allied with them, can turn the national security apparatus upon political opposition. Such a centralization of internal order paved the way for the kind of centralized rule that the National Socialists imposed in the 1930s through the assassination of Hitler’s political rivals in what is known as the Röhm Purge or the “Night of the Long Knives” (a series of extrajudicial killings) and, later, the work of the Ordnungspolizei.
I recognize the limits of historical analysis at a moment like this. It is one thing to say that something lies outside the constitutional imagination of the founding generation, both Federalists and Anti-Federalists. It is another thing altogether to say that such unimagined realities are unconstitutional, either because they lay outside that vision or for other reasons. But there is little question that at the moment of the founding of the United States—and for at least a century thereafter—the idea of a national police force was and remained distinctly un-American.
The bulwark against authoritarianism in the United States is not merely “federalism” in a general sense, but the critical fact that the Constitution empowers states and not the national government to administer elections. Which brings us to Madison’s other reassurance (conveyed in derisive tones in Federalist 46) against federal takeover: the people would not have it. They would resist, not in their military refusal to bow to a tyrannical national force, but in their unwillingness to vote repeatedly for its architects and enablers:
That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, … until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.
Set aside the prospect that political extremism and the viewing of political opposition as evil enemies would induce Americans to do just what Madison thought impossible. A national police force larger than the militaries of some countries is the kind of machine that could interfere in elections in a range of ways. The Adams administration provided one model: the arrest of opposition candidates (including incumbent members of Congress) as the election approaches. Or the arrest of voters of a certain race, ethnicity, gender, appearance, or other characteristic, done in such a way as to scare voters from the polls in just the sort of places where election results could be tilted. The appearance of either tactic—whether on a large scale or even via the specter of tyranny that would ensue from piecemeal election disruption—would quiet the voice of the people and annihilate the American republic.
Daniel Carpenter is Allie S. Freed Professor of Government and Chair, Department of Government, in the Faculty of Arts and Sciences at Harvard University.
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Mr. Carpenter, The fears of the anti-federalist that the national government would “annihilate and absorb the powers” of the state governments, and that, ultimately, “its establishment will annihilate the state governments, and produce one consolidated government that will eventually and speedily issue in the supremacy of despotism," was proven prophetic. In Trump 1 the despots and their media sycophants used all their possible powers of conspiracy and lawfare to stop him. But "We the people" re-elected Trump 2 because of the obvious visceral need, to attack the consolidated government and return powers and prerogatives to the state governments. After Trump 1 and in between he learned of the need to be ruthless. The Liberal Left should work with Trump 2 to return the illegal aliens and dismantle much of the Federal bureaucratic despotism return diversity to our Republic.