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From a Confederation to a National Government: Rothbard on the Early Republic

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[Adapted from the foreword to Conceived in Liberty, Volume 5: The New Republic: 1784–1791.]

What aroused the fears of those who sought through the Constitution to establish a strong national government? In part, the nationalists were afraid of tax resistance. Rothbard details the key libertarian uprising in Massachusetts, Shays’ Rebellion, a revolt against excessive burdens on the taxpayer for the benefit of public creditors, mainly eastern merchant-speculators who had purchased the state’s debt at a great discount. Oppressed by taxes and frustrated by the imprisonment of those who could not pay them, mobs throughout western Massachusetts and their supporters seized courthouses and closed the courts until a redress of the people’s grievances was achieved. Why the courthouses? Because that’s where creditors went to find friendly judges and secure orders to seize debtors’ properties and imprison the debtors themselves; and that’s where the state government pursued those who could not pay their taxes.

But this outburst of anarchist freedom had a counterreaction. Shays’ Rebellion conservatized many state leaders who felt that the state governments and the Confederation were too weak to prevent such tax uprisings from recurring. Rothbard expertly demonstrates that such events served to spur nationalist sentiment by providing fuel for demagogic attacks about the dangers of weak government under the Confederation.

True, democracy may be turbulent, as presumably in the Shays episode, “But weigh this against the oppression of monarchy, and it becomes nothing…[and] even this evil is productive of good. It prevents the degeneracy of government and nourishes a general attention to the public affairs….It is a medicine necessary for the sound health of government.” 

Urban merchants and artisans, as well as many slaveholding planters, came together in support of a strong nation-state that would use the coercive power of a distant central government to grant them privileges and subsidies. With such a backing, nationalist forces were able to execute a political coup d’état which illegally liquidated the Articles of Confederation and replaced it with the Constitution.

James Madison of all people—the scrivener of the Constitution and, later, the author of the Bill of Rights, the Federalist Framer who would become an Antifederalist president—began this coup when he pushed through the Virginia legislature a “proposal for a convention of commissioners from all states to provide for uniform commercial regulations and for ‘the requisite augmentation of the power of Congress over trade.’” Madison was so cautious about what he was really planning for Philadelphia in the summer of 1787 that he revealed his true objectives only to his close personal friends. What were those plans? Not enhanced commercial arrangements, but instead the beginning of radical political reform. Rothbard explains that Madison called for an all-state convention in Philadelphia to propose a comprehensive revision of the Articles of Confederation so as “to render the Constitution of the Federal Government adequate to the exigencies of the Union.” He sounded here more like his successor Woodrow Wilson than his one day predecessor Thomas Jefferson.

The Constitutional Convention opened on May 25, 1787, in Philadelphia, and Rothbard methodically traces each topic of discussion and breaks down the debates between the major players, recounting their impassioned speeches and fascinating back-and-forth. He focuses on the recommendations from each of the state delegations regarding all the basic attributes of the Constitution that would form the basis of the nascent central government.

In particular, Madison and the Virginians meant political revolution rather than reform of the Articles of Confederation. They had wanted “not a ‘merely federal’ union, but a ‘national government…consisting of a supreme judicial, legislative, and executive.’” We learn that these revelations, to many, like Charles Cotesworth Pinckney of South Carolina and Elbridge Gerry of Massachusetts, were “illegal, revolutionary, and violated the express instructions of Congress.” But nevertheless, eventually, those delegates who attended the Convention agreed on certain broad objectives, crucial for a new government, and designed to remodel the United States into a country with the British political structure; albeit, contrary to Alexander Hamilton’s wishes, without a monarchy.

Yet another crucially important point to settle was the procedure for ratification of the Constitution—submit the new Constitution to the state legislatures or to ad hoc popular state conventions? Not only does Rothbard detail the debate over the procedure, he then goes into detail about the negotiations and compromises that occurred behind the scenes to get the deal done—by bypassing the state legislatures.

Ultimately, we see that the nationalists, though forced to make a few concessions, carried the substance of their program: the creation of a supreme national government, supreme national judiciary with inferior courts established by Congress and appointed by the president all for life terms, and a bicameral Congress, with the lower house elected by those people who were permitted to vote.

The process was not, however, without its flaws. Rothbard identifies two deep failures of the Constitution from the standpoint of liberty. First, of course, “slavery was…driven into the heart of the Constitution: in the three-fifths clause, in the protection of slave importation for twenty years, in the fugitive slave clause, and even in the congressional power to suppress insurrections within the states.” Citing Luther Martin, Rothbard notes that:

the American Constitution was a grave betrayal of the idea of natural rights set forth in the Declaration of Independence. The Revolution, Martin strikingly declared, was grounded in defense of the natural, God-given rights possessed by all mankind, but the Constitution was an “insult to that God … who views with equal eye the poor African slave and his American master.”

Second, the Constitution sent to the states for ratification failed to include a bill of rights—a prohibition against governmental interference with personal liberty. Although “libertarian restraints were placed on state powers, no bill of rights existed to check the federal government.”

[Rothbard] notes that Madison would become the reluctant author of the Bill of Rights. He was a strong nationalist and didn’t want the government to be limited. But he thought that a bill of rights would head off the call of the Antifederalists for a second constitutional convention by offering concessions.

Madison’s deft maneuvering succeeded in securing the ratification of the Constitution in Virginia, a matter Rothbard obviously regrets. Nevertheless, he praises the Bill of Rights:

Of the twelve amendments submitted to the states, the first two were not ratified; these were minor provisions dealing with the organization of Congress. The remaining ten amendments composed nine highly significant articles guaranteeing various personal liberties against the federal government, as well as one complementary structural amendment. None of the political and economic liberties desired by the Antifederalists (prohibition of direct taxes, standing army, two-thirds requirement for laws regulating commerce, etc.) were included, but the adopted bill of rights was significant enough, and all of their provisions were intensely libertarian.

Rothbard goes on to summarize the Bill of Rights, but he does more than this. He makes insightful remarks about each of the amendments. For example, he comments on the Second Amendment:

The Second Amendment guaranteed that “the right of the people to keep and bear Arms, shall not be infringed.” While the courts have enumerated the clause to apply only to Congress, leaving the states free to invade this right, the wording makes it clear that the right “shall not be infringed,” period. Since states are mentioned in the body of the Constitution and restrictions placed upon them there as well, this clause evidently also applies to the states. Indeed, the subsequent amendments (three to nine) apply to the states as well as to the federal government; only the First Amendment specifically restricts Congress alone. And yet the courts have emasculated the amendments in the same way, counting them as not applying to the invasions of personal liberty by the states.

No reader of Conceived in Liberty could miss the fact that Rothbard usually supported the states over the central government and personal liberty over all government. To me, the highlight of the entire volume was what Rothbard says about the Ninth Amendment. He first recognizes how nationalist judges derailed the Tenth Amendment’s limits on the power of the central government:

This amendment did in truth transform the Constitution from one of supreme national power to a partially mixed polity where the liberal anti-nationalists had a constitutional argument with at least a fighting chance of acceptance. However, Madison had cunningly left out the word “expressly” before the word “delegated,” so the nationalist judges were able to claim that because the word “expressly” was not there, the “delegated” can vaguely accrue through judges’ elastic interpretation of the Constitution. This loophole for vague “delegated” power allowed the national courts to use such open-ended claims as general welfare, commerce, national supremacy, and necessary and proper to argue for almost any delegation of power that is not specifically prohibited to the federal government—in short, to return the Constitution basically to what it was before the Tenth Amendment was passed. The Tenth Amendment has been intensely reduced, by conventional judiciary construction, to a meaningless tautology.

Rothbard goes on to highlight what I regard as the decisive point in the entire Bill of Rights:

Ironically, the most potentially explosive weapon of the anti-nationalists was ignored then and for the next 175 years by the public and the courts. This was the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” With its stress on the rights of the people, rather than on state or federal power as in the Tenth Amendment, the Ninth Amendment is even more acutely the answer to the [James] Wilson argument than the Tenth. The enumeration of rights may not be so construed as to deny other unenumerated rights retained by the people.

The Ninth Amendment has unfortunately (a) erroneously been held to apply only to the federal government and not also to the states, and (b) has been reduced to a simple paraphrase of the Tenth Amendment by the courts. But then why have a Ninth Amendment that simply repeats the Tenth? In truth, the Ninth Amendment is very different, and no construction can reduce it to a tautology; unlike the formulaic Tenth Amendment, the Ninth emphatically asserts that there are rights which are retained by the people and therefore may not be infringed upon by any area of government. But if there are unenumerated rights, this means that it is the constitutional obligation of the courts to find, proclaim, and protect them. Moreover, it means that it is unconstitutional for the courts to allow a government infringement on any right of the individual on the grounds that no express prohibition of that act can be found in the Constitution.

In response to the famous dictum of Justice Holmes, dissenting in Lochner v. New York (1905), that “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” Rothbard says:

The Ninth Amendment is an open invitation—nay, a command—to the people to discover and protect the unenumerated rights and never to allow governmental invasion of rights on the ground that no express prohibition can be found….Moreover, if it is asked what “other rights” were intended, the context of the time dictates but one answer: they meant the “natural rights” held by every human being. But a commandment that the courts are duty-bound to protect all of man’s natural rights, enumerated or retained, would reduce the powerful scope of government action to such a degree as to give the last laugh to Herbert Spencer over Justice Oliver Wendell Holmes.

Toward the end of this work, Murray Rothbard wrote that the spirit of “the American Revolution was liberal, democratic, and quasi-anarchistic; for decentralization, free markets, and individual liberty; for natural rights of life, liberty, and property; against monarchy, mercantilism, and especially against strong central government.”

In a myriad of ways, many seemingly irreversible without bloodshed, and all in the name of the Constitution, that spirit has been negated.

Author:

Contact Judge Andrew P. Napolitano

Judge Andrew P. Napolitano serves on the Board of Directors of the Mises Institute, and is the Institute's Distinguished Scholar in Law and Jurisprudence. He is Senior Judicial Analyst at Fox News, former Judge of the Superior Court of New Jersey, and is a graduate of Princeton University and the University of Notre Dame Law School. He has been published in The New York Times, The Wall Street Journal, The Los Angeles Times, and numerous other publications

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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