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The Federalists’ Revenge

Not all the Founders were for limited government.

America’s Counter-Revolution, dedicated “To the constitutionalists of all parties,” gives new meaning to the word pithy. In 20 short chapters (most of which were previously columns in the Freeman and elsewhere) Sheldon Richman achieves a remarkable thematic coherence, giving the reader a nice window into American constitutional argument and thus into American history.

Building on Arthur E. Ekirch’s Decline of American Liberalism (1955), Richman concludes that the Federalists gave America a vague constitution having the appearance of limited powers but marred by implied ones: a “living constitution” for conservative nationalists. The Federalists, recall, set imperial greatness above liberty and thought real limits on power “impossible”; so-called Anti-Federalists opposed the rule of self-nominated aristocrats and believed in dispersed power.

Exploiting Shays’ Rebellion and damning state-issued paper money, Federalists “wanted a different nation”: a properly European state with monarchical features, unknowably large powers, and judicial ideologues. This required the overthrow of state sovereignty. The Federalists’ proposed Constitution implied a peacetime army, nationalized the states’ militias, and made official promotion of trade possible. Standing armies were no threat (Federalists said) since federal officials would coerce “only” individuals, not states. For Alexander Hamilton, military powers had no logical limit.

(As for money, Richman writes, quite sensibly, that paper money “had advantages” over taxation; it was popular and not that damaging, since many people could “avoid the money economy.” This interesting point warrants further development.)

The wise Federalists’ goodness would suffice to secure Americans’ rights. Arguing quite insincerely that the Constitution granted only limited powers to the national government, they omitted any bill of rights. Anti-Federalists “fatally” made this a key issue, leaving James Madison free to sabotage the project by substituting some watered-down “rights of Englishmen” for concrete Anti-Federalist proposals to protect the states.

Richman notes the historical erasure of the Confederation (1781-1789), which happily had “no power to tax, regulate trade (except with Indians), or raise an army directly” and had to beg money from the states. These arrangements caused no great turmoil, despite complaints from seaport merchants, who wanted “uniform national economic policy” and their own national tariff. Unhappily, nationalist agitprop about interstate tariffs and “idle ships” soon became received U.S. history. Richman praises this “confederation of sovereign states” as embodying the radicalism of the American Revolution.

James Madison, “father of the implied-powers doctrine,” resisted the word “expressly” in what became the Tenth Amendment as an existential threat to his program. The final version reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus the Tenth Amendment fell short of the old Confederation’s Article II, which had read, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

Nor was there a genuine “enumeration” of congressional powers, since the Founders intended for Congress to “legislate in all cases for the general interest of the Union” (according to the internal resolution at Philadelphia). Thus sections 2-17 of Article I merely illustrated congressional power. And thus the Constitution was never even a parchment barrier, but was (like the Pirate Code) “just a set of guidelines.” The Founders’ propaganda (e.g. The Federalist Papers) necessarily contains the same ambiguities as their proposal. Rhetorically, Madison is found on both sides of the “enumeration” issue.

Richman next deals with the Commerce Clause. Regulating commerce “among the several states” was all about subsidies and mercantilist restrictions; interstate commerce (as understood today) was not the focus. Relying on William Crosskey, Richman writes: “the word ‘state’ itself more often than not meant the people of a state.” Above all, “regulate” meant “tax.”

To grasp the scope of the taxing power itself, Richman bravely slogs through mountains of tedious case law. Conclusion: vexing and immoral as it may be, the income tax is quite constitutional. The 16th Amendment merely overrode an abstruse distinction between direct and indirect taxes. World War II turned the income tax into a “mass tax.” Our real defeat was in 1787 and, unhappily, “all economic gain” is taxable.

Discussing American empire, Richman quotes the historian Gordon Wood, who sees Jefferson as “the most expansion-minded president in American history.” As American exceptionalism yielded “aloneness and thus danger,” the national-security state emerged.

Richman notes the “enduring illiberal consequences” and “dangerous precedents” of the War of 1812. The Founders had deplored the decline of aristocratic authority in “the most thoroughly commercialized society in the world.” With similar “virtue” rhetoric in hand and foreign territory in sight, Madison’s Republicans found silver Federalist linings in the war: integral nationalism, permanent military establishments, and huge westward migration. Richman quotes the historian William Earl Weeks: “after the Treaty of Ghent the search for new markets became the explicit aim of American foreign policy.” Here began the Open Door Empire.

Where does that leave us today? Richman writes: “Constitutions can neither interpret nor apply themselves. People interpret and apply them.” Liberty flourishes best where power standoffs yield “zones of liberty” in polycentric legal systems. Richman reflects on the Magna Carta, which reduced the practical scope of the king’s feudal superiority. Having trapped themselves performatively, barons yielded similar rights to their vassals. Royal power still advanced, but ongoing standoffs between the king and nobles constrained the practical power of both. Bargaining “may be the least costly way to maintain some power” and seeking less can lead to larger results. Here Richman advises us not to “conflate philosophy and strategy” while dreaming of one-shot solutions.

Richman argues that the freest society requires constitutionalism (“real rules of society”), since the “routine conduct” of human agents maintains institutions. Incentive structures matter under anarchy and limited government alike. Constitutions and governments are “not outside society imposing rules of conduct”; ultimately, people can enjoy freedom while enacting social rules.

Richman does not demand that readers accept his libertarianism as their fighting faith. Modestly, he argues for dispersed and actually limited power as the road to a freer society. He makes an admirable case against the constitutional sentimentalism that too many libertarians and conservatives share. Appeals to “restore” an ancient Constitution through better Founderology (John Rao’s term) are futile.

Still today, few would dare challenge the flood of self-praise left behind by the Founders. Even questioning their honesty is very bad form. Here, however, we can begin to understand something left us by M.E. Bradford: “Madison, Lincoln, and Franklin Roosevelt are the obvious American counterparts of Cromwell.”

Joseph R. Stromberg, an independent historian living in northern Georgia, has published in the Freeman, Future of Freedom, Journal of Libertarian Studies, Telos, Chronicles, and Independent Review. He wrote “The Old Cause” column at antiwar.com.



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