Episode 121: How Well Does the Constitution Protect Liberty? (with Sheldon Richman)
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Episode 121: How Well Does the Constitution Protect Liberty? (with Sheldon Richman)

August 27, 2019

Aaron Ross Powell: Welcome to Free Thoughts
from Libertarianism.org and the Cato Institute. I’m Aaron Powell. Trevor Burrus: I’m Trevor Burrus. Aaron Ross Powell: And our guest today is
Sheldon Richman. He’s the keeper of the blog Free Association at SheldonRichman.com,
Senior Fellow at the Center for a Stateless Society and Contributing Editor at Antiwar.com.
He’s also the author of three books – Separating School and State, Your Money or Your Life
and Tethered Citizens and the forthcoming volume The Constitution Revisited. Today we’re going to be talking about a
couple of posts that you had up at your Free Association blog on – one is called The
Constitution Revisited. The other is called The Bill of Rights Revisited. So maybe let’s – I will start by just
reading the opening of The Constitution Revisited post and you can then expand on it a bit for
us. So you say, “I am mystified that so many libertarians still see the US constitution
as a landmark achievement in the struggle for liberty. On principle alone, they should
have become wary in time. A document that is adored at virtually every position in the
political firmament should arouse suspicion among libertarians.” Sheldon Richman: Well, thank you. Nice to
be here. Yes, I’ve been in the libertarian movement for quite a long time. I won’t
utter the number. It’s a big number and I am surprised that there is this reverence
and adoration for not just the constitution itself but the Philadelphia Convention of
1787 and the – what we call the founding fathers. They were treated sort of as demigods
fairly uniformly. There is some exception made for Alexander Hamilton, which maybe we
can mention later on. But there’s this idea that this was a libertarian moment, that it
was a major landmark in the long struggle for liberty. I will confess that I shared that earlier
on but as time went by – and I won’t say that I was suddenly struck by lightning or
had some Napoleon conversion on the road to – well, I guess I shouldn’t say Damascus
these days, should I? That I didn’t have this moment where I realized
what was wrong with that view. It takes time but I’m just surprised that after all these
years, I still see a huge amount of libertarian sentimentalism about the constitution or what
Jeffrey Rogers Hummel calls a constitutional fetish … Trevor Burrus: Should we at least be appreciative
or maybe amazed at the fact that to create the United States government or at least the
second version of the United States government, we did have a bunch of pretty smart people
get into a room for four months and debate at least sometimes basic questions about the
role of government, the proper use of government, the interests involved in government in a
way that had not really been done before. So at least we would be appreciative that
our country began or the second government began with a philosophical debate which – I
mean libertarians are pretty into philosophy and most countries have not begun with a philosophical
debate. Sheldon Richman: Well, England underwent a
pretty explicit debate. Maybe not at one place in one whole – in one city, in one year
or less than one year but there were some pretty explicit discussion about the limitations
on the monarchy and government in general. I don’t know that the US is unique. I don’t
think it was a really fair debate. I mean that’s part of what I’m trying to point
out here and I’m drawing on historians who are eminent in their field. I’m thinking
particularly of – well, the articles that you mentioned explicitly quote Gordon Wood
who is an eminent historian of this period but also Merrill Jensen who did a huge amount
of work on The Articles of Confederation and the first years of the United States under
The Articles of Confederation and the move toward the constitutional convention. You could argue that it wasn’t a fair debate.
It doesn’t really live up to the focal work and that’s what – one of the things I
tried to point out in these two pieces. Trevor Burrus: Is the constitution – I mean
I guess we can sort of get to the heart of it. You write that the constitution – we
should view the constitution not as a landmark in the struggle for liberty but rather as
a move to introduce elements of monarchy and aristocracy into an American political system
that had become too democratic for America’s upper crust. Now, on one level, it seems like you’re
kind of doing the Charles Beard economic interpretation of the constitution-ish kind of thing and
saying it’s not even a limited government document at all. Would you say – is that
what you’re saying? It’s not a limited government document? Sheldon Richman: No. I would not say it’s
not a limited government document. I don’t want to embrace – certainly not fully the
Beard the thesis. I think Beard’s thesis is too – too much – economic determinism. Trevor Burrus: Yeah. Sheldon Richman: His story is – and it’s
somewhat picked up by Albert Jay Nock whose work I like on the constitution but he’s
a little too much of Beardian in Our Enemy, the State. He’s the one who called the Philadelphia
Convention a coup d’état, which I think is not far off the mark. I think the problem with Beard is that he
has these men who assembled in Philadelphia in 1787, who were all creditors or they held
government credit and wanted to make sure they get the full – their full amount. That’s
not totally wrong but I don’t think that was the – if that was a motivating factor,
it was not the only one and it may well not have been the major one. I think there was a bigger view in the minds
of these guys, particularly Madison and Hamilton. They had a larger view which is – you will
notice I don’t talk about that in the two pieces. I don’t talk about the Beardian
thesis at all. I think they went to Philadelphia for what you just said. The revolution was truly radical in this – and
I’m using that in the sense that Gordon Wood uses it in his really good book, his
excellent book The Radicalism of the American Revolution. The radicalism for Wood is that
it was an egalitarian – political and socially egalitarian revolution and what was going
on at the state level before the constitution, during the period of the articles, is that
common people were men, white men – of course we have to say but still commoners, not gentlemen
as the term was used. Plebeians were getting in the government and using the government
for their particular economic interest and people generally were interested in their
particular economic interests. They weren’t living up to the classical republican model
that both the Hamiltonians and the Jeffersonians saw as the proper vision for the new country. They turn to the constitutional convention
to – as you quoted me, to introduce elements of aristocracy, hierarchy and even monarchy
and this even goes to Madison as I spell out. Monarchy back into the American system. Take
power away from the states and put it into the national government and make sure the
right kind of people would get – be elected. In other words, they wanted the system to
weed out the plebeians and weed in the patricians because the patricians, the gentlemen were
seen as people who were above the fray. They didn’t have to make a living. They weren’t
in the day to day hubbub of the marketplace and therefore they could mediate among the
contending individual interests. That’s what they saw. They believed in personal
liberty and as I say in the second piece, when I talk about the Bill of Rights, I’m
not saying they wanted a dictatorship of arbitrary government as long as they were in charge.
I don’t think they did. I mean they learned lessons from the British monarchy as the monarchy
– not in the theory of the monarchy but as the monarchy was operating day to day. They didn’t want arbitrary government. But
they didn’t see the government that they were setting up in Philadelphia as the ultimate
protector of liberty. The purpose of that machinery was to make sure the right people
got in power and those people would be the protectors of individual freedom. Aaron Ross Powell: It might be helpful here
to give a bit of background or context to this because this is all in either establishing
– with the new constitution, they’re establishing a different set of rules for the structure
of government and governing, which is a reaction to the rules that were in place at the time,
The Articles of Confederation. So could you give us a bit of info on The Articles of Confederation
and specifically the kinds of rules that they had in place that were contributing to or
enabling these issues that they – that the people drafting the new constitution saw and
wanted to fix or address? Sheldon Richman: Yes, that’s very important
because I don’t see how you can judge the constitution outside of this historical context.
I would go so far to say if the US constitution were the first constitution, you might say,
“OK, nice try. They made a mistake but nice try.” But you need to look at what came
before and then it seems to me you don’t say, “Nice try.” A libertarian shouldn’t
say, “Nice try.” What came before with The Articles of Confederation
which are – you can easily find them online and read them. They were adopted during the
second constitutional – second Continental Congress in Philadelphia. What they did was they set up what I would
call a quasi-essential government, quasi-national government. The reason I say quasi is because
– and this is very important for libertarians. This government had no power to tax, to lay
taxes of any kind or to regulate trade. Now I call it a quasi government because it did
ultimately get funded by tax revenues. But they had to go to the states with hat in hand
and of course the problem for the Madisonians and the Hamiltonians was that the states weren’t
– sometimes withheld the money or they say the check is in the mail or something to the
equivalent of it. So there was trouble raising money and there
were a couple of proposals during the years of The Articles of Confederation which was
in effect a year. It’s not an insignificant amount of time where they tried to get a tariff,
like a five percent tariff for the national government. So it would have some independent
source of revenue. But this would get vetoed by one state or another. Rhode Island I think,
New York. Under the rules, any amending of The Articles of Confederation had to be unanimously
approved by the 13 states, now states. It was called the United States of America
by the way by then and it had essentially only one branch of government, namely the
congress. The congress elected the executive and he was known as the president of the United
States. So actually George Washington was not the
president for about what? Some point – like 10 previous presidents. I think John Hanson
is usually regarded as the first because I think he served his full term. It was during
the period of the articles. I think the very first president. He straddled. He was president
right before the articles took effect and then right after, so it’s sometimes not
counted. But anyway, be that as it may. We had several
people who were known as presidents of the United States, but they were members of congress,
sort of like a prime minister. So there was not a separate branch. Now, the story we’re
all taught is that there were severe problems during these eight years. One of the great myths of this period is that
states were erecting trade barriers against one another, tariffs against one another and
this is a great myth as Jeffrey Hummel shows. It’s not the case that New Jersey would
put up trade barriers against New York, et cetera. All that happened really was that on a couple
of occasions, a state would say – let’s say New Jersey would say that European goods
that come through New York will have to pay a duty. In other words, it was aimed at European
goods, not aimed at New York goods or other American goods. In other words, the United States was already
a free trade zone, which bashes one of the great myths about the constitution, that the
constitution was needed to create a free trade zone. Now, here’s another bit of proof for
this. Alexander Hamilton argues in The Federalist Papers – and I forget what number. It may
be 73. He says if we would adopt this constitution, we could treble the tariff. That’s a pretty
big admission. See, I think what he was saying was as long as the states were more or less
independent, there would be competition toward economic freedom, toward free trade. States would be lowering any tariffs that
they had in competition. He was calling for a cartelization of the states in order to
get the tariff three times as high. I think that’s – we can look at the constitution
as a move toward cartelizing the states but not in the interest of people in the states.
Rather this national – like I said, this national government that would hover above
the great fray and mediate all these contending interests. Trevor Burrus: Now you mentioned – because
you mentioned Hamilton and you do – you mentioned previously that he might be a little
bit of an outlier. But when we’re talking about interpreting what the constitution sort
of became, I think there is no reasonable argument that the constitution was written
to increase the powers of the national government. That’s I think beyond dispute. The question is how much sort of a runaway
or the intent behind some of these framers or the body of them as a whole wanted it to
be substantially larger than maybe people think or our current story? So Hamilton is
a bad example as you kind of alluded to previously. It’s kind of weird to put into the constitutional
mix at all because in mid-June of the convention, he gave essentially a speech saying he wanted
a monarchy that was very similar to England and no one seconded his speech. Then he left the convention for almost the
entire convention and didn’t come back until September. New York didn’t actually even
have a delegation there for most of the time. He agreed to sign the constitution but it
was clearly not what he wanted out of the mix. So is using Hamilton’s desires for trebling
the terror for something like this a really good use of trying to figure out what the
document means or what the intent behind it was? Sheldon Richman: Well, of course Hamilton
is a major contributor to The Federalist Papers. He and Madison. Jay only contributes a relative
few. So he’s a huge campaigner for the constitution. I think that somewhat offsets your point about
his having left – no, did he want a stronger executive than say Madison did or like – you
know, Madison is not totally innocent in this regard and I guess we will get into that. Sure, he’s further out on the spectrum if
you want to call it to the right side of the spectrum than Madison. Madison is – Jefferson
has Madison’s ear to a large extent so Madison is sort of in between. He’s trying to find
some balance I think between Jefferson and Hamilton. But it’s his plan. The Virginia
plan is his blueprint and that’s what they work from when they got to Philadelphia. I
should mention when they got to – they got to Philadelphia on the – their mandate was
to amend The Articles of Confederation. As I said, that requires a unanimous consent
of the states. When they got there, they locked the doors.
The public was not allowed in and they tore up The Articles of Confederation. They hardly
transferred anything from it and then they changed the rules of ratification where you
only needed nine states, not the unanimous. So I should – we should say that as far
as the historical background goes. I think it’s important to realize what they were
doing there. I think that helps Nock’s theory that this was a coup d’état. Trevor Burrus: Yes. But counter to that is
they knew that they were doing this to some extent. You look at the mandate from the Continental
Congress which was issued in the fall of 1786 after the previous collapse. No one showed
up at the convention to amend the articles in the early fall of 1786. So it does say for the purposes amending the
articles but the way they tried to cure this defect of amending the articles was to create
a ratification that was going to be more populous because the articles were ratified by the
people in the way that the constitution was. So does the ratification system cure the defect
of what you’re – the sort of coup d’état theory? Sheldon Richman: Well, maybe informally it
might. However, looking back with public choice lenses, I think we can say that it wouldn’t
do that entirely. Pauline Maier in her book Ratification says there was some hanky-panky
on the part of the federalists. They tended to control the mail. They tended to – they
were more concentrated in the cities, the urban areas. They controlled newspapers and
they had some advantages in stifling the debate of the so-called anti-federalists. I mean
the very terms “federalist” and “anti-federalist” are – I think go to show what was going
on there. I mean the true federalists you can say were the anti-federalists. Aaron Ross Powell: Can you unpack that a bit
for us? Sheldon Richman: Well, the Hamiltonians and
the Madisonians and I will combine them here because I think for – you know, given The
Federalist Papers, I think we can combine them. They were proponents of what came out
of Philadelphia. They called themselves federalists. Federalism was a popular idea. One thing I
wanted to mention and I think helps shed light on this, one thing that Madison did not get
that he wanted was a federal congressional veto over state laws. So when we’re looking at the differences
between Hamilton and Madison, let’s be careful not to overstate them. Sure, they had differences
on what the executive should be. Hamilton, yeah, seemed to have his taste in monarchy
but as my article points out, as time – part of Madison’s. He says this privately to
people. Part of Madison’s motive is to bring some anarchical elements back into the system
because they felt they had thrown the baby out with the bathwater. The monarchian theory was supposed to be this
impartial arbiter of interests and even though it didn’t work out that way in practice
with the British king, he still hoped to have that element there. So that’s part of his
motive. So he’s not as different from Hamilton as you may think. He’s different but let’s
not exaggerate. Aaron Ross Powell: Is that what we ended up
getting though a bit with – it didn’t work out to have a congress have a veto but
judicial review functions in a similar way. Sheldon Richman: Well, I don’t know how
much you foresaw that. That didn’t happen immediately, the judicial review. There was
debate over that. There was concern in the states on the part of the small-d democrats
that the judicial – the courts were beginning to be those – the mediator that originally
the state legislators were and people didn’t like that because judges weren’t elected.
State legislators were. So the radical democrats didn’t like that the judiciary was emerging
as that. Hamilton I suppose are – Madison I suppose would have preferred that but I
don’t know how soon that takes effect once the constitution has been ratified. Trevor Burrus: We do get the supremacy clause
but the – which is a little bit of a concession that Madison gives that says that the constitution
and the laws and treaties of the past there under shall be the supreme law of the land.
But that only was in – when they had concurrent jurisdiction over matters with – which is
this big sort of preemption question in modern American law. But yes, it is true that Madison wanted to
be able to veto state laws because as you kind of pointed out previously, he thought
that states were prone to craziness the way he would describe it as something like a fervor
of interests and faction taking over states in order to take say debt relief. Print paper
money to take – to alleviate debts and all these things. That’s something that libertarians
should be against. I mean like if the – within the state of say Massachusetts or when we
had Shays’ Rebellion but also all throughout New England, we did have a constant debtor-creditor
struggle. It was whoever was kind of controlling the legislator at different times. It’s
going to basically suck the other side dry in different ways. That’s something we should
be against too, correct? Sheldon Richman: That’s a good point. By
the way, on Shays’ Rebellion just as on the side, I think that was more of a tax strike
than an … Trevor Burrus: Yes, yeah. But they were definitely
debtors. Sheldon Richman: Right. They were losing the
forms because they weren’t – they couldn’t pay the taxes. But leaving that aside, no,
you make a very good point. I say something – I only had a chance to say it in a sentence
or two in this piece, The Constitution Revisited. I agree with you. I am not approving of the
idea that the state legislators should be an auction house where you’re able to go
and get what you can’t get in the marketplace, like relief from debt and things of that sort. But I’m equally opposed to what Madison
and Hamilton wanted in place of that, which was they’re allegedly – I stress this
word “allegedly” – impartial ruling elite. I mean Madison – Hamilton makes the
argument that even – he was a working lawyer. So he was not well-born and he was not a gentleman,
meaning he just could live a life of leisure. Trevor Burrus: Right. He was an illegitimate
kid. Yeah. Sheldon Richman: He was a lawyer. So he had
to make a living. When he was arguing that, we need people who are not stuck in the mud
of the marketplace every day and therefore having their interests skewed to their own
particular circumstances. People would say, “Wait a second. You’re a lawyer. You make
your living at law.” He says, “Oh, no. That’s different.” The learned professions
are not self-interested. We’re like the gentlemen. We can hover above the fray and
be impartial. Now, the anti-federalists scoffed at this.
They were early public choice types and they said, “No. No way is the ruling elite impartial.
That’s a joke,” and they argued that against the – when the Bank of the United States
was being debated and Robert Morris was talking about how the wise men were impartial. The
anti-federalists laughed at them or the Jeffersonian types laughed at them. So I’m saying it’s a false alternative,
this hyper-democracy where you can use the legislature to get what you can’t get honestly
in the marketplace. That’s – we don’t like that. But we also don’t like what – the
alternative being proposed by Madison and Hamilton, which was this elite, this patrician
elite that is thought to be impartial. Trevor Burrus: Yeah, the patrician elite thing
is – that definitely occurred, those debates, and that was a big part of just theories of
what representatives and people in the government are supposed to be – with the amount of
leisure that was needed to study Greek systems and Plato’s Republic and things like this. But they did have a large debate or eventually
they came down – on whether or not to pay the members of the government. They came down
on the idea that they would pay the members of the government. So it was not only the
case that people with enough money in reserve would serve in the government. So they did try to actually counter that a
little bit and that other debate was whether or not the states or the federal government
would pay them and it ended up being the federal government because they didn’t want them
to be too dependent upon the states. But that – therefore individual normal people to
some extent could serve in the government without having a reserve of cash. Sheldon Richman: Right. Look, the Jeffersonians
didn’t mind that regular people were getting into the government. They just wanted them
to be more civic-minded than they were. So you do have a divide over whether the common
people should be in the government to be elected to the legislature. You have a division between
Madison, Hamiltonians and – Madisonians and Hamiltonians on the one side and Jeffersonians
on the other. But they still thought people were not sufficiently
civic-minded or they weren’t classical republicans. One thing that Wood points out is that in
the dying days, every founding father was upset with the country. They all thought that
the revolution was – had been squandered, that it wasn’t what they wanted because
people were too concerned with their own commercial affairs and they weren’t in their view civic-minded.
They weren’t living the lives of classical republicans. Aaron Ross Powell: Isn’t that what every
generation thinks? I mean you could find similar stuff like that from the Romans talking about
the kids these days and I mean … Trevor Burrus: They’re not … [Crosstalk] Aaron Ross Powell: So is that specifically
a critique of anything going on then or just – I mean that’s what older people always
think. Sheldon Richman: Well, but I think in a way
they were right. I don’t think – I think they misjudged human nature. I mean people
are – I don’t say this as a criticism. People are interested in raising their families
and improving their material condition. What is this idea of the general welfare? If we’re
not going to talk about it in terms of sum – I use the word “sum” here metaphorically.
The sum of the individual welfares. The classical republicans of early America
seem to think it was something separate and so from their point of view, maybe their complaint
was valid. It wasn’t just the old geezer saying what they always say. Trevor Burrus: Is it really a big criticism
though if they did – I agree that they did have an idea of the civically-minded person
who was qualified to hold office in different ways. But if we’re going to have a government,
do we want to have people like that in government more than people with very localized interests
who aren’t civically-minded? I mean we can talk about whether or not we’re going to
have government at all. But if we’re going to have a government, will we want better
people of some sort in that government than otherwise? Sheldon Richman: Well, I think this gets to
whether you can actually have a government worth having because where do – who are
these people? Who gets to define what the better type is? I don’t – what are people
supposed to do – what were the civic-minded people supposed to do that the other people
weren’t doing when they got into all this? What is this unique insight that certain people
are going to have in terms of ascertaining the public interest, number one? So it’s
an epistemological issue. Number two, what incentive do they have to achieve it? Even
if you assume the first part that they know what it is. I mean this is a public choice issue, right?
That somehow there are people – we just got to find the right people who have this
unique insight into what the public interest is and number two, they will be uniquely dedicated,
single-mindedly dedicated to achieving it. They will have no interest of their own. They
will never use power for their own glorification or profit or when – other objective that
they might use it for … Aaron Ross Powell: Well, could we make an
argument say that – OK, so these elites aren’t necessarily going to be less self-interested
than anyone else, that attorneys are just as interested in advancing the interest of
attorneys as bricklayers are in advancing the interest of bricklayers. But that at least these people are more educated,
have more historical knowledge say or in a modern context, you could look at it and like
Bryan Caplan’s work The Myth of the Rational Voter, that if you have – you might get
better policies if everyone has a deep understanding of economics at least because the – their
motives may still be the same but they’re going to at least have a better sense of like
how policies might play out in the real world. So it might not be perfect but it would be
marginally better to have people with this body of governing and civic knowledge governing
than populism. Sheldon Richman: But I feel like we’re venturing
into the nirvana fallacy here because the question is, “How do you do that?” Maybe
that sounds really good. Does that mean only PhDs in economics ought to be in congress?
But we know that’s no guarantee. Gosh, Paul Krugman has a PhD in economics. So how do you actually put flesh on those
bones? I don’t see it. I mean you can talk in really abstract terms about yeah, the only
people who understood economics were voting on these bills. We would be better off. OK,
I can agree with that. Who really understood economics. Does that mean Austrian? Does that
mean the Friedman – I mean how do you do that? Trevor Burrus: I wanted to go back to the
federalists and the anti-federalists because you talked about this in your piece. So the
anti-federalists, which I completely agree, had very – many of them – there’s a
lot of anti-federalist papers but many of them had very poignant things to say about
the constitution that ended up being correct. What were some of those things that the anti-federalists
said about the constitution? Sheldon Richman: Yeah, this is good because
it takes us into the Bill of Rights which I hope we will get some time to talk about
a little bit. One of the big complaints was there was no Bill of Rights. So this is very
interesting. A bill of rights was not discussed at the constitutional convention, the federal
convention until the closing days when George Mason who would go on to become an anti-federalist
raised the issue and every state voted down I guess a resolution to consider a Bill of
Rights. Every state, unanimously, their delegations
vote – in the convention though, voted down a proposal that they had a Bill of Rights.
But people were surprised that there was no Bill of Rights according to Wood and the people
at the convention were surprised that the people outside the convention were surprised.
They were surprised that they were being surprised. They didn’t seem to think that was a big
issue. It reminds me as I say in the piece a little bit of Alexander Hamilton’s explanation
for why God is never mentioned in the constitution. Somebody asked them and there was no reference
to God. He said, “We forgot.” Now with the Bill of Rights, apparently he didn’t
forget. They just said, “No, we don’t need it.” Now there were Bills of Rights
in some of the state constitutions. So it wasn’t some kind of revolutionary idea.
They were certainly aware of that. But their view was, well, the constitution
is a Bill of Rights in itself. Number one it’s a Bill of Rights against state – the
state power, the state legislature’s power. That’s how Madison saw it and Hamilton argued,
“Well, why do you need a Bill of Rights?” If the federal government, national government
can only do what is explicitly – expressly authorized to do and can do nothing else,
then that’s a Bill of Rights, right? How can it regulate the press if there’s no
power for it to regulate the press? Now I believe this was sophistry. I don’t
think Hamilton actually believed it and it’s certainly not true. There are un-enumerated
powers in the constitution and I don’t care how many times Madison and his followers today
say he set up a government of few and defined powers. That is nonsense and I will give you
one knockdown proof as I say in the piece. Eminent domain. There’s no express power
of eminent domain in the constitution. How do we know the government had it? Because
when they added the Fifth Amendment, there’s the takings clause, which puts some limits
on eminent domain, right? It says it has got to be for public use and there has got to
be just compensation. You know how well that has held up. Go ask Mrs. Kelo. But that point aside, obviously there is – take
away the Fifth Amendment, there’s still the power of eminent domain. It didn’t grant
the power of eminent domain. It simply put some limits on an unstated presumed power
and if it had that power, it could certainly have other powers that are un-enumerated. So this is nonsense that this was a power
– this was a document of expressed enumerated powers. In fact when we get to the Bill of
Rights, I guess I’m just jumping ahead here. So lack of Bill of Rights was one thing. The
anti-federalists, that wasn’t even their most significant complaint. They picked up
on it because people in the ratifying conventions said, “Hey, why isn’t there a Bill of
Rights?” and they recommended – the conventions actually recommended a total of 200 amendments. Some of them were Bill of Rights kind of – the
kind of material you would put into the Bill of Rights but the anti-federalists had other
and I think far deeper, more serious complaints about the very structure of the government
being set up. They thought the taxing power was wide open and comprehensive and they got
their way, the Supreme Court later on agreed that it’s an all-embracing power, all-encompassing
power. In the later income tax cases, they say the
government has the perfect power basically to tax anything. There are exceptions on it.
I think you can’t tax exports or states can’t tax exports. There are exports and
a couple of exceptions. They complained about the supremacy clause. They complained about
the general welfare clause. They complained about the necessary and proper clause. They
had many, many complaints and they got – in a way, they got bought off. They put all their eggs unfortunately – not
all their eggs but when it came to arguing with the public, they put an awful lot of
weight on the Bill of Rights. So eventually said, OK, we will add a Bill of Rights to
shut you people up. That’s what Madison had in mind and what the other federalists
had in mind when they agreed to go along with having a Bill of Rights and the Bill of Rights
did not address any of the deeper concerns of the anti-federalists. This goes to my mystification about – you
know, how I’m being mystified by libertarians. Libertarians who are committed to the constitution
have to act like the anti-federalists didn’t even exist. They hardly ever talk about them.
They were the most libertarian people of the day. Some of them certainly were close to
being – people we’ve called libertarians. Yet if you’re committed to the constitution,
you have to pretend they don’t even exist and I can’t understand that. Trevor Burrus: Well, it’s true to some extent
but the anti-federalists had a massive influence on the nature or course of government over
the next 30 years from 1789 going forward. I mean the anti-federalists had a bigger – they
punched above their weight going forward. I agree with you. They deserve a lot more
respect. I’m going to push back on your eminent domain
point though because – so there are implied powers and there are – you can call them
un-enumerated powers of the federal government because the eminent domain clause is “nor
shall private property be taken for public use without the payment of just compensation”. So it implies that you can do that. But one
way of looking at that is to look at that as a corollary of something like the post-roads
clause in article 1, section 3 which gives the federal government the power to make post
roads and also to do things necessary and proper to making post roads, which could include
eminent domain. So it’s actually not implied totally that
some of the powers of the enumeration of the powers in the constitution might include eminent
domain as a thing. So when there is eminent domain as an implied power, as a corollary
to an enumerated power, then when they do it, they have to pay just compensation. I’m
not sure if it’s much of a knockdown point as you make it. But you are correct that there
are implied powers of the constitution and that the anti-federalists were very, very
correct to say that the necessary and proper clause would be abused to say the least. Sheldon Richman: Yeah. Like I said, they were
early public choice thinkers and I think they made a big mistake strategically in putting
too much weight on the Bill of Right because once the Bill of Rights came out, then they
looked at it and said, “This is like whipped cream. It’s air and some sugar to distract
us but it doesn’t address our concerns.” By that point, it looked – so it looked
like they couldn’t take yes for an answer, right? They said, “We want a Bill of Rights.
We want a Bill of Rights.” OK, here’s the Bill of Rights. Oh, wait a second. That’s
no good. We want these other things. They just blew the strategy but as far as implied
powers, I mean another telling episode is when they’re debating what would become
the 10th Amendment. Constitutionalists love to put a lot of weight on the 10th Amendment. Trevor Burrus: Well, some of them do. I don’t. Sheldon Richman: OK. So basically, it says
powers not delegated to the national government, y’know, are reserved to the people under
the states but there is a representative from South Carolina, Thomas Tudor Tucker, who made
an amendment to the amendment. He said, “I want to insert the word ‘expressly’. Power
is not expressly delegated.” Who started to speak against it? Madison. He knocks it
down in the committee. He knocks it down in the committee as a whole, in the congress
and he argues there has to be power by implication. That’s his term. Any constitution must have powers by implication.
Now here’s the irony of that. You may say, well, of course it does. He said otherwise
you would have this infinite list and he’s right about that. But I’ve always learned
that Madison was the man who argued against implied powers. When I listened to libertarian type constitutionalists,
they love to talk about there are no implied powers. They will cite Madison saying the
powers are few and defined. But here’s – Madison is the father of the implied powers doctrine
and yet why don’t libertarians know that? Trevor Burrus: I think that Madison’s view
of implied power is a little bit different. If you read some of his writings where you
basically – it can’t be a great and independent power. It has to be incidental to the carrying
out of something else and the words “necessary and power” come from old agency law. So
if I went to you and I said, hey, Sheldon, I’m going to let you run my store for a
while, you can do all things necessary and proper to running my store. That implies certain
things that I don’t have to state that you’re allowed to do pursuant to running my store. But they can’t be bigger than running my
store. That’s like the – it can’t be a great and independent power. So this is
one reason why say like – saying that you can set up a single payer healthcare system
pursuant to the commerce clause is ridiculous because you wouldn’t embed a single payer
healthcare system in the commerce clause. It’s not incidental to running commerce. But on the other side, you can look at a case
like United States versus Ferger from 1919 where in the rule that – this is a really
clever case actually and I think Madison would agree with this but this is an applied power.
So a man was counterfeiting bills of lading to extract loans from banks to say I have
shipments of goods. He counterfeited those bills of lading and then he got – then he
was defrauding people and then they brought – the federal government brought charges
against him and he said – under the commerce clause, he said, “No, you can’t get me
under the commerce clause because there was no commerce involved. I made up the commerce.
The commerce clause cannot reach made-up commerce.” The court said, “Ha! Clever.” I mean it
was too clever by half but they went to the supreme court and they said this is clever
but clearly article 1, section 3, clause 18, the necessary and proper clause, oh, this
is the kind of implied power you get. So they basically say you’re right. This is not
under the commerce clause but it is under the power that’s a necessary – to do things
necessary and proper to regulate the interstate commerce. I think that’s what Madison would have thought
the commerce clause meant. So he is the father of implied powers but not to the extent that
we can set up – you know, no child left behind and all these. He probably should have
been wiser to realize that that would have happened inevitably. Sheldon Richman: Yes. What I was going to
say was that – in response to that is that – that Madison and at best is revealed as
highly naïve, which is not his reputation and the anti-federalists on the other hand
are revealed as highly sophisticated. I mean anticipating … Trevor Burrus: Prophetic. Sheldon Richman: Buchanan and Tullock. Yeah,
prophetic. I mean they said you’re going to hand these kinds of powers to the people
that are going to gravitate toward government? I mean that’s effectively what they were
saying and Madison was able to get away with saying, “Oh no. In the great republic, ambition
counters ambition and it’s going to be fine.” Never thinking that maybe ambitions will get
together and conspire together, right? They will cartelize. So again, why does he have this reputation
among libertarians? I can understand conservatives liking him. But why do libertarians think
that he’s some sort of demigod? Trevor Burrus: Well, shall we – I mean should
we at least say – I mean I guess – we shouldn’t think he’s a demigod but at
the very least, on the size and scope of the federal government, aside from the slavery
issue which – I mean it’s a very big aside but in terms of how big the federal government
itself was. It did a pretty good job for about 120, 130 years which is hard to say has ever
happened much in human history of like a government on a federal level that was as small and relatively
contained as the federal government was under the constitution before the progressives and
the new dealers got their hands on it. Sheldon Richman: Yeah. You know, as Hummel
likes to put it, the federalists got their constitution but the anti-federalists got
the interpretation for one. I guess we can attribute that maybe to the – just the general
tenor of the population that people were distrustful. I mean they went with the constitution – don’t
forget a lot of it had to do with the fact that Washington was the president of the convention
and then he was going to be the first president. Everybody knew he was going to be the first
president. They tailored article 1 – article 2 to the – you know, to the expectation
that Washington was going to be president. I think they let a lot go. I mean this is
naivety also because he’s not going to live forever even he can hold the office forever,
which he couldn’t. Well, he might have had I guess until he died but he didn’t. But there was naivety there thinking, OK,
we will let it slide because it’s going to be Washington. I think there was some of
that. But I think – you know, people were distrustful and the federalists did not get
their way on a lot of things. But that wore down. Eventually it wears down. A new generation
comes along and they see government differently because they’re further from the revolutionary
generation. I think that’s a little to be expected. Doesn’t Jefferson famously say
that the natural order of things is for government to gain and liberty to yield? To gain ground
and liberty to yield and they set up a system that made it easy. I think it also set up a – the constitution
set up a system that made empire inevitable. They couldn’t have built an international
empire under The Articles of Confederation and I think – and they had empire on their
minds. Now maybe it’s not exactly the empire we have today. But in an earlier article called
it an empire on their minds and they had a very expansive view of what the government’s
role should be in trade. For them free trade meant the government goes out and opens markets
with gunboats if necessary. I mean we get the War of 1812 under Madison
who said all these great things about how bad war is and then the war happened – he
then goes to war. So I think they had a much more expansive view of government than libertarians
seem to – most libertarians seem to understand. This is why I’m trying to bring attention
to this. Aaron Ross Powell: How much of this decline
of liberty or growth of the state over time is the fault of the specific drafting of this
constitution and the rules that they set up and how much of it is just inevitable with
any text? Because I mean – so the constitution is just words on paper. It doesn’t mean
much on its own. It certainly doesn’t have any powers on its own. It’s always just
a piece of text that men and women are going to read and pay attention to or not pay attention
to or interpret in different ways. I mean if there’s one thing I learned, it’s
an English major taking lit theory courses, that the meaning of a text is rather malleable.
It’s hard to nail down. The text doesn’t assert its own meaning easily. So is there
– I mean could they have done – so you talked about – I mean they had the empire
mind. But outside that, like could they have reasonably done a better job? Is it possible
to construct a constitution that is actually going to keep government in check, knowing
that government is made up of people who have their own interests and their own desires
for power or is that to some extent just a fool’s game? Sheldon Richman: Well, yeah, great point.
I think it’s largely a fool’s game. I think we can distinguish, we can say better
and worse. Look at The Articles of Confederation. No power to direct taxation. I mean it was
really truly in direct taxation, right? They had to go to the states and say, “Give us
money.” It would be hard to do what they wanted to
do without the power of taxation or the power to regulate trade. Madison, according to his
biographer, Ralph Ketcham, 12 days into the period of the articles, when Madison was a
member of the Continental Congress, he’s looking to expand the powers of the government.
There wasn’t much to work with, with the articles and he never made any headway because
there just wasn’t a lot to work with. Now maybe they would have figured – with
time, maybe they would have figured it out. You know, things to do. But you’re right.
No constitution, no law can interpret itself. I think as constitutionalists – and libertarians
I think to some – the ones that are still stuck on the constitution I think fall prey
to this. They act like you could sort of program a computer with the interpretation whether
they were originalists of whatever strand or whatever their philosophy is. Somehow you
could put that into a computer and then anytime a dispute comes up, you feed it in and it’s
going to give you the infallible, proper interpretation. Well, we know there’s no such thing. First
of all, who programs the computer? What’s that person’s interpretation? I mean how
do we – do we vote? I mean how do we know – you know, that’s ridiculous. So I’m a Wittgensteinian on this, right?
Rules don’t interpret themselves. Even in a – if you offer an interpretation, that’s
subject to interpretation. Now, we have to not forget public choice. I think any good
libertarian is going to be a good public choice theorist. Who’s going to be gravitating
toward government power? It’s going to tend to be people who are going to want to give
interpretations to broaden the powers. That’s just the way to bet. So I think in the end, it is a fool’s game
and we shouldn’t be surprised by what happens and we shouldn’t be surprised even if we
amended the constitution today and put in only what we think are libertarian-sounding
clauses that 50 years from now, libertarians then will I think be making the same kinds
of complaints. Aaron Ross Powell: Free Thoughts is produced
by Evan Banks and Mark McDaniel. To learn more about libertarianism and the ideas that
influence it, visit us on the web at www.Libertarianism.org.

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  1. May Anti-Federalists were for from Libertarian too. Some arguments against Federal power was that it could prevent state governments from enacting Mercantilist policies to benefit local industries, or that the Federal government might deem it necessary and proper to forbid the states from taxing any goods also Federally taxed lest the state taxes reduce Federal revenue.

  2. Considering myself a neophyte in my understanding the foundation laws which our nation in to be governed, I am amazed and frustrated by my view that there are a precious few individuals that know or care about the rules that govern our nation. That along with the reinterpretation and bastardization of the founding documents has led to a country that the founding fathers would hardly recognise. Shame on us.

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