Cliven Bundy made no statement at his first court hearing in Portland, Oregon last week, but his son Ammon previewed a line of defense the other day that I expect we will hear repeatedly from the political right, if not from defense lawyers. The younger Bundy claimed at his bail hearing on January 29 that “it’s not that we don’t respect the government. In fact it is just the opposite. I’m a federalist… My only desire is to protect freedom.”
To the extent one can credit Ammon Bundy and his fellow refuge occupiers with a principled or even just an articulate political philosophy, “federalist” makes little sense in terms of its original meaning in the ratification debates of 1787-88. James Madison and Alexander Hamilton and John Jay wrote The Federalist Papers to promote a strong and vigorous central government. Yes, with limitations. But they were struggling to replace the centrifugal Articles of Confederation with a political charter for an extended and extensive republic.
Many if not most twenty-first century self-styled “federalists” would be more honest and self-aware if they flew the banner of “anti-federalist.” The anti-federalists promoted important contributions to American democracy, most importantly the Bill of Rights, which the federalists thought a superfluous addition to the original Constitution. But if the anti-federalists had carried the day we would not have had a Constitution in the first place. As it is we have a Tenth Amendment that places some limits on the national government’s power. But the Property Clause and the Necessary and Proper Clause, among others, are not nullified by any later amendments and, pretty plainly, make hash of the self-serving claims of Bundy Sr. and Jr.