Brutus No. 1 Predicted the Necessary and Proper Clause Would Swallow the States

An anonymous New York pamphleteer who lost his argument in 1788 has a better forecasting record than most of the economists on television. He looked at a charter written on four sheets of parchment, picked out two clauses, and told his readers exactly how a limited government would one day become an unlimited one. The winners of the debate called him an alarmist. Two centuries of federal spending later, the alarm looks more like a weather report.

His pen name was Brutus. His first essay appeared in the New York Journal on October 18, 1787, barely a month after the Convention adjourned. If you care about the states, about the Tenth Amendment, or about why Washington seems to have an opinion on everything from your wheat field to your child's lunch tray, you should read him. And then you should read Madison's answer, because the honest verdict is a split decision.

Who Brutus was and why he mattered

The author never signed his name. The traditional attribution is to Robert Yates, a New York judge who attended the Philadelphia Convention and walked out of it, though scholars have also proposed other New York Anti-Federalists, and the question is not settled. What matters more is the quality of the work. Brutus wrote sixteen essays, and they are among the most careful the Anti-Federalists produced. He was not a crank shouting about conspiracies. He was a lawyer reading a legal text and asking what it would mean in the hands of ambitious men.

That is the conservative method, by the way. Read the words. Ask what power they confer. Assume that power will eventually be used to its limit, because it always is.

The question he put to the country

Brutus opens by insisting that his readers understand what kind of decision they face. The question, he says, is whether the thirteen states should be "reduced to one great republic, governed by one legislature, and under the direction of one executive and judicial," or should continue as confederated republics joined for defined national purposes only.

That framing is the whole essay. Brutus did not oppose union. He opposed consolidation, the absorption of the states into a single national government. And he set out to prove that the Constitution, whatever its friends said, was built to consolidate.

Exhibit one: the elastic clause

Here is the text Brutus worried about most. Article I, Section 8, after listing the powers of Congress, ends with this:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Brutus read that clause together with the Supremacy Clause of Article VI, which makes the Constitution and federal laws made "in Pursuance thereof" the supreme law of the land, binding on state judges notwithstanding anything in state constitutions or laws. Put the two together, he argued, and you have a government whose power over its objects is complete. He wrote that the new government would possess "absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends."

Then the line that should be printed on every federal building:

How far the clause in the 8th section of the 1st article may operate to do away all idea of confederated states, and to effect an entire consolidation of the whole into one general government, it is impossible to say.

Notice what he does not say. He does not claim to know the end point. He says the clause has no visible end point, and that is the problem. Who decides what is "necessary"? Congress. Who decides what is "proper"? Congress. Brutus understood that a power whose limits are judged by the one who holds it is not much of a limit. (We take apart the modern reading of the clause in The Necessary and Proper Clause Was Never Meant to Be a Blank Check.)

Exhibit two: the taxing power

Brutus's second target was money. Congress could lay and collect taxes, duties, imposts and excises. The states also needed revenue. Under the Supremacy Clause, if the two collided, federal law would win.

Follow his logic step by step, because it is careful.

1. Both governments draw on the same pocketbooks.
2. The national government's claim is supreme.
3. The national government can tax nearly every object a state might tax.
4. So the states keep only the revenue the national government chooses to leave them.
5. A government that depends on another government's forbearance for its money is not independent. It is a branch office.

The Framers' defenders replied that the states would keep their own concurrent power to tax, and they did. But Brutus was pointing at something deeper than a clash over a whiskey excise. He was describing dependence. And here, readers, I need you to hold that word in your mind, because it is going to come back in the twentieth century wearing a nicer suit.

Exhibit three: no free republic can be this big

The third part of the essay is the one Brutus is most famous for, and it is the part where he was wrong. Drawing on Montesquieu, he argued that a free republic could not govern a territory as large and varied as the United States. He put it this way: "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."

From that premise he drew grim conclusions. A large republic would have too few representatives to know the people. The people would not know or trust a distant government. Laws would have to be enforced by force, which meant a standing army. And a government ruling by army is not a republic at all.

This is a serious argument, and in 1787 it was the conventional wisdom of political science. Hold on to it; it is where Madison wins.

Madison's answer in Federalist 45 and 46

The Federalists did not ignore Brutus. Madison's reply is spread across several papers, but two are central.

In Federalist 45 Madison offered the most quoted promise in the whole ratification debate:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

In plain English: the national government handles war, diplomacy and trade. Everything touching ordinary life, from property to crime to schooling, stays home. (The promise is examined in Few and Defined, the Promise About Federal Power in Madison's Federalist 45.)

In Federalist 46 Madison went further. He argued that the states would win any contest of loyalty. The federal and state governments, he wrote, "are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes." The people's first and most natural attachment, he predicted, would be to their states, because the states would do the things people noticed. Any federal grab would meet resistance from state officials, state legislatures and the citizens themselves.

And on the size of the republic, Madison had already answered in Federalist 10 and 14: representation, not direct assembly, lets a republic extend over a large region, and a large republic contains so many interests that no single faction can easily dominate.

The strongest case for the Federalists

Let me put the Federalist side at its best before I score the contest.

The argument. Brutus was a catastrophist. He predicted that a large republic would need a standing army to enforce its laws against a resentful people, and that never happened in the way he described; Americans obeyed federal law through courts and elections, not bayonets. He predicted consolidation, yet more than two centuries later the states still write nearly all criminal law, run elections, license professions, govern marriage and family, and operate the schools. The Necessary and Proper Clause was read in McCulloch v. Maryland (1819) to allow a national bank, hardly tyranny. Chief Justice Marshall said the means must be legitimate and consistent with "the letter and spirit of the constitution," which is a limit, not a blank check. The union Brutus feared made Americans the freest and most prosperous people in history.

That is a strong case. Here is the answer.

1. On the size of the republic, the Federalists win outright. Brutus was wrong that a free republic could not govern a continent. Representation, federalism and a written constitution proved Montesquieu's rule too narrow. Give Madison this point without reservation.
2. On consolidation, Brutus wins on the mechanism even if he overstated the speed. The clause he flagged became the hinge of federal expansion. In Wickard v. Filburn (1942) the Supreme Court held that Congress could penalize an Ohio farmer for growing wheat beyond his allotment even when he fed it to his own animals, because his wheat, added to everyone else's, affected interstate commerce. The power to regulate commerce "among the several States," joined to the power to make laws necessary and proper for it, reached a man's own field. Gonzales v. Raich (2005) applied the same reasoning to plants grown at home for personal use. Brutus could not have named those cases, but he described them. (The original meaning of the commerce power is in What Commerce Among the Several States Meant to the Men Who Wrote It.)
3. On taxing and dependence, Brutus was prophetic. The modern federal government shapes state policy chiefly through money. In South Dakota v. Dole (1987) the Court upheld a law withholding five percent of certain highway funds from states that did not raise their drinking age to twenty-one. Congress had no enumerated power to set a drinking age; it bought one. In NFIB v. Sebelius (2012) the Court finally drew a line, holding that threatening a state's entire existing Medicaid funding to force an expansion was coercion, "a gun to the head" in the Chief Justice's words. That the Court needed to draw that line at all is the vindication of Brutus. The states had become, in the money sense, branch offices.
4. Madison's structural safeguard was weakened by amendment. Federalist 46 counted on state governments defending their turf. One of their best weapons was the Senate, chosen by state legislatures under the original Article I. The Seventeenth Amendment (1913) moved the election of senators to the people. Whatever its merits, it removed the state governments' direct seat in the national legislature, and with it much of the resistance Madison promised.

So who did history favor? On geography and liberty, Madison. On the drift of federal power, Brutus. Madison described how the system should work; Brutus described how it would work if the people stopped watching.

What the states can still do

The good news, and there is good news, is that Madison's design still has teeth when someone bites with it.

In United States v. Lopez (1995) the Court held that Congress could not use the commerce power to ban guns near schools, because carrying a gun near a school is not economic activity. In Printz v. United States (1997) it held that Congress cannot commandeer state officers to carry out federal programs. In Murphy v. NCAA (2018) it held that Congress cannot simply order state legislatures not to legislate. NFIB itself protected the states from coercive funding conditions. And in West Virginia v. EPA (2022) and Loper Bright Enterprises v. Raimondo (2024), the Court pulled major questions back toward Congress and ended Chevron deference, which matters because federal agencies have been the most aggressive consolidators of all.

Each of those decisions is Madison's Federalist 46 coming back to life, usually because a state attorney general or a single citizen refused to accept that the federal government's reach is boundless. Federalism is not self-executing. It works when states use it, a theme we develop in Federalism Lets Fifty States Experiment, and the Constitution Planned It.

And Brutus wrote a later essay that is just as relevant: he warned that unelected federal judges would expand federal power by construction. That one is covered in Brutus Warned in 1788 That Unelected Judges Would Swallow the States. Put the two essays together and you have the Anti-Federalist forecast in full: the money, the elastic clause, and the courts.

The lesson for conservatives

Here is the point to take home. The Anti-Federalists lost the vote and won a lasting role as the Constitution's conscience. Brutus told the country that a grant of power must be read for its outer limit, not its friendliest use. The Federalists told the country that structure and the people's attachment to their states would hold the line.

Both were right, and the second is conditional on the first. The structure holds when citizens read the clauses as Brutus did and insist on the limits Madison promised. It fails when we accept that "necessary and proper" means "whatever Congress wants this year," and when states trade their authority for a highway check.

The Tenth Amendment says the powers not delegated "are reserved to the States respectively, or to the people." (Why it omits the word "expressly" is the subject of The Tenth Amendment Left Out One Word, Expressly, and the Omission Mattered.) Reserved powers are only reserved if somebody reserves them.

The case in brief

1. Brutus No. 1, published October 18, 1787, argued that the Necessary and Proper Clause, the taxing power and the Supremacy Clause would consolidate the states into one national government.
2. Madison answered in Federalist 45 and 46 that federal powers were few and defined and that the states would resist encroachment.
3. Brutus was wrong that a free republic could not govern a large country; representation and federalism proved him wrong.
4. He was right about the mechanism: Wickard, conditional spending and the Seventeenth Amendment carried federal power far past "few and defined."
5. Federalism survives where states and citizens enforce it, as Lopez, Printz, NFIB and Loper Bright show.

What you can do: look up how much of your state's budget comes from federal funds on your state legislature's website, and ask your state legislator which federal conditions came attached to the biggest grant.