How Well Does the Constitution Protect Liberty?

Transcript

Aaron Ross Powell: Welcome to Free Thoughts from Lib​er​tar​i​an​ism​.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 Shel​don​Rich​man​.com, Senior Fellow at the Center for a Stateless Society and Contributing Editor at Anti​war​.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​.Lib​er​tar​i​an​ism​.org.