Constitution as Will and Representation, to Which Is Added a Summary
View of the Present Rights, If Any, of British North America, Excluding
Canada Not Taxed
Trouble With the Constitution
across the American political spectrum, politicians and would-be
opinion-molders clutch the United States Constitution to their bosoms
and proclaim their unswerving loyalty to it and the vision of society,
which they find therein. Left-liberals love the old parchment for
the penumbras, emanations, and constructible silences and absences
they espy in it. Oddly, for them the Constitution always seems
to require that we immediately implement advanced social democracy
and radical egalitarianism, lest Little Jamie Madison should start
spinning in his grave.
the right, one finds vastly different readings of the Constitution,
but just as much professed loyalty to the old grocery list – a loyalty
often resting on premises almost as dubious as those of the left-liberals.
Here I have in mind Straussians, Neo-Conservatives, and all their
heirs and assigns. Only on the hard left and hard right, do we
fight what might be called realistic assessments of the Constitution’s
original bearing and meaning. Of course, that said, the hard right
and left hardly draw the same conclusions from their respective
I hasten to own up that if the Constitution were actually read and
followed in any way remotely close to its letter – I leave the “spirit”
to the Nine Delphic Oracles we would be better off in many fundamental
respects. No longer could “Congress shall make no law” be finessed
into meaning that Congress can make such a law, if Congress
should have a good reason. Nor could an Amendment stating that
some right “shall not be infringed” be taken as evidence than Congress
can infringe that right. Infringing would be left to the states,
where it belongs, depending on the states’s bills of rights.
other words, I have nothing but admiration for Joe Sobran’s campaign
to force people to come to grips with the neglected but interesting
fact that we once had a Constitution, whose meaning was not all
that mysterious, whereas we now have a “living Constitution,”
whose meaning resides in the latest mood-swings of the Washington
Nine together with whatever usurpations by Congress and the President
the general public may have “ratified” through absent-minded acquiescence
and bovine conformity. But sure, if constitutional exegesis ever
got within 20 feet of original intentions, just about every law
passed since 1933 would go by the board, along with many others,
some of them dating from as far back as George Washington’s first
administration - and all this on a fairly generous construction
of disputed clauses.
may be forgiven for thinking that I just expounded the hard right
position on these matters. No indeed: loveable as Joe Sobran’s
constitutionalism is, there remains a harder-core view, which takes
into account the original infelicities, mistakes, and bad original
intentions of the Constitution’s framers.
Church of the Constitution?
all this matters because, as William Appleman Williams long ago
noted, in the absence of an established church, Americans have made
a cult of the Constitution to provide “secular cement” for their
geographically extended and mobile society. Hannah Arendt made
a similar point. Americans may argue morality and policy, but in
the end, they try to show that a preferred view is “in” the Constitution.
This has required much legerdemain down the years.
shall not hide my real view here, which is that in a very broad
way the “right-wing” or states-rights view of the Constitution comes
closer to the truth than do various competing centralist, liberal
corporatist, and social democratic views. Knowing that is not much
real help, however. I am on record as criticizing libertarian opportunism
and libertarian centralism in these matters, so perhaps I should
I reject, is the posture of those libertarians who deny the systematic
logic of a federal system, or who see no value in acknowledging
the rules of the game. Such libertarians break into pragmatic applause
every time some organ of central power appears to expand liberty
at the expense of states and localities. The under-ratified Fourteenth
Amendment is central to their undertaking. Hooray! – they cry,
the Supremes have given us pornography. Hooray for centrally sanctioned
abortion, and so on. They fail to see the structural problem.
If all power devolves on Washington, what happens when the Prez,
the Nine, or the five hundred some scam artists decide to eliminate
the new liberties along with the old ones?
come to the point, then, I am in favor of taking the Constitution
as establishing a division of power between the states and their
common agent, even if that common agent is now their boss and aspires
to rule the world. It is important for our intellectual honesty
to keep alive a genuinely federal model of the federation.
Since virtually all power has devolved on the Great Agent, taking
this position serves us merely as a heuristic device, a standard
of measurement, or a rallying point. Still, in the old days when
Strom Thurmond sometimes asked proponents of new legislation for
an enumerated power authorizing their proposed good deeds, he at
least annoyed or embarrassed them. We can do no less.
Timebombs, and Other Intended Mistakes
said, there stands, nonetheless, the need for a critical understanding
of the downside of the original plan. The Constitution Movement
was, after all, the brainchild of American nationalists – Hamilton,
Madison, and Jay, to name just three. These fellows had rather
advanced ideas, to say the least.
nationalist program emerged during the Revolutionary War. Gouverneur
(his name, not his title) Morris lamented the end of the war in
1783, because, without war, there would be less excuse for energetic,
central government. Even before the Articles of Confederation were
ratified, some nationalists already claimed implied or inherent
powers for the Continental Congress. Under the Articles, which they
hated, they tried to find penumbras, emanations, and inherent powers
lurking in the text. This did not get them very far; but such far-seeing
men could not long be denied.
they wanted was an American mercantilism, with themselves taking
the role of the displaced British bureaucrats, manipulators, and
fixers. The nationalists were mainly public creditors, commercial
capitalists (especially from the Middle States), and regular army
officers. The “crisis” of not getting their way was apparently
not a crisis to most of their contemporaries. For many Americans,
the loose structure embodied in the much-vilified
Articles was precisely what the Revolution was all about.
the name of preserving property, the nationalists worked for a central
authority with ample taxing power, control of the money supply,
and power to regulate foreign trade and interstate commerce. In
his classic essay on Madison’s misadventures at the Constitutional
Convention “as comic action,” M. E. Bradford showed how Madison
retreated, time and again, from his advanced nationalist positions.
While the Constitutional did represent a sort of peaceful coup
d’état, it was hardly what the nationalists actually wanted.
Struggle, and Compromise: Who Won?
only did the constitutional text fall short of what nationalists
wanted, but in selling the document the nationalists, now misleadingly
called Federalists, pitched their arguments to answer “Anti-Federalist”
objections. The Federalist Papers overflow with claims that
the rights of the people and the states would be secure, that no
powers existed but those enumerated, and so on. Even here, Anti-Federalists,
unconvinced, forced the adoption of ten amendments to clarify things.
This made for extra work for the Federalists when they reappeared
in the new government and set about creating American mercantilism.
E. Bradford made the excellent point that where original intent
is at issue, the intentions of the ratifiers are more important
than Mr. James Madison’s. If Madison, Hamilton, and Jay had various
secret opinions, they are nonetheless logically bound by what they
said while merchandizing the new charter. This at least gives us
a coherent beginning for the discussion, unless one wishes to accept
Mr. Gary Wills’s posthumous swindle theory of the Constitution (i.e.,
that Madison’s secret views are legally controlling).
of the Constitution
ratifiers thought they were getting a general government with a
few additional powers (enumerated) and sundry guarantees of their
local self-government. The nationalists hoped they had gotten enough
to fudge their way to a genuinely national government, which could
feather their nests and create an American empire. It was not long
before the pious assurances made in the ratification campaign gave
way to new discoveries of inherent, implied powers.
specific items are worth a look here. “We, the People” is the first
bit of confusion. With Patrick Henry, one stumbles at the threshold.
This vague language was inserted because no one could predict which
of the thirteen peoples would ratify. But there it stands, waiting
for Daniel Webster and other great minds to torture national sovereignty
out of three words.
in this survey, come those ominous words “Congress shall have power.”
At this late date, the whole notion doesn’t seem to have worked
out very well. Of course, there follows the list of “enumerated
powers” beyond which our ancestors were assured than none existed.
Having sold their bill of goods, the Federalists shortly announced
that “necessary and proper” (bringing up the rear, as if an afterthought)
rendered the whole list unneeded. Perhaps the text should have been
“Congress shall have power so indefinite as to astound Djezzar Pasha
and Jenghiz Khan.” But could anyone have sold that version?
a nod toward Joe Sobran, I grant that if the General Government
were held to the shortlist in Article One, things would be different.
On the other hand, some of the enumerated powers are already troubling.
There is first, a taxing power so general as to defy confinement
to its supposed ends.
of those ends, “the general welfare,” is a bit open-ended, too;
although an 18th-century understanding of that does have
some built-in limits. This cosmic grant of power was a radical departure
from the revolutionary republican distinction between external and
internal taxes, a departure with Inevitable Abuse written all over
it. John Randolph of Roanoke once remarked that if the states had
given the Confederation Congress the power to levy a 5% ad valorem
tax on imports (that is, an external tax), there would have been
no excuse for a new constitution. Here, the Federalists really
overreached and, remarkably, got what they wanted.
powers “to borrow money,” “to regulate commerce,” to “establish”
[not build!] “post-roads,” and “to coin money” were essential to
any American mercantilism, even if they amounted to granting to
an even less accountable government the very powers whose abuse
by the several states was a staple item of Federalist propaganda.
Note to any future Constitutional Convention: consider leaving these
power to “raise and support armies” meant, in practice, the creation
of standing armies in time of peace, the beginning of the West Point
syndrome, and other problematic practices. This brings us, in quickstep,
to one of the biggest screw-ups in the whole document: the presidency
(and see the new book, Reassessing the Presidency, ed. John
V. Denson, Mises Institute, 2001). Talk about your mistakes with
entirely foreseeable outcomes!
No. At a time when many Americans still identified executive power
with despotic, unaccountable royal Governors, the nationalists knew
better. Hamilton famously cried for more “energy in the executive,”
at all times and places. Today there is no problem at all with energy
in the executive. There is so much energy there, in fact, that
sometimes the kept media get their shorts in a twist over stories
that the Great Man has been separated by some few yards or minutes
from his childishly named “nuclear football.” For those who have
missed such reports, the atomic pigskin is actually a briefcase
of sorts, carried about by a couple of serioso, robotic officers
(marines?) and chock full of nuclear codes and commands. It must
always accompany the Great Personage, in case he needs to incinerate
half the world-ball between his appetizer and main course. But the
inherent criminality of the whole concept never occurs to the gentlemen
of the press, suggesting that the fourth estate is something of
a fifth column.
expect that even Alexander Hamilton might blanch at having that
much energy in the presidency; but contemporary Americans find
little odd about it. I think we could do with a whole lot less energy
in the executive. To be very brief about it, the Founders knowingly
created an institution so central to their vision of government
that, even if there were no inherent executive powers (as Raoul
Berger rightly maintains) in the text, institutional drift could
easily present us with an elective Caesar, but Caesar nonetheless.
This is pretty good for an office, which, on paper, has all the
powers of a subaltern clerk. Better King Log than King Stork.
major infelicity lay in the federal court system. This, too, took
some time to work itself out, but enough leeway existed in the original
plan to make the courts’ claims mildly plausible. John Marshall,
one of the friendliest reassurers of critics in the Virginia ratification
convention, wrote himself all sorts of blank checks as Chief Justice.
And now millions of educated people believe that the Constitution
is what the Court says it is. That is, pragmatically, true enough,
but it dodges all the real questions of whether co-ordinate branches
– and the states as well – have any say in the great hermeneutic
might think that a plan of government with so many black holes,
so many interesting lab experiments and the like, might have met
with some criticism from the prospective white mice. It did indeed.
Virtually every dire prediction made by the misnamed Anti-Federalists
has come true, but like Rodney Dangerfield, they get no respect.
Some of their predictions took decades to come about, giving people
time enough to forget they had been warned, although the dark side
of the executive branch showed itself very early.
the Antis, where mentioned at all, get treated as the Typhoid Marys
and Cassandras of the piece – a sad object lesson in what happens
to men of little vision, liberals of too much fear, and so forth.
It is precisely the essential correctness of the Anti-Federalist
critique, which recommends it to us, today. It was the Constitution
which was utopian, in the bad sense; utopian because it called on
central government to remained “limited” while it provided a set
of incentives and moral hazards all pointing the other way. The
Anti-Federalist vision entailed protecting the rights of the people
and the states by not creating institutions which would, in a long
enough run, undermine those rights. Negative, to be sure,
but also more likely to have worked out the way the gang of three
said, in The Federalist, that their plan would work.
is where the hard left critique overlaps our own. Mr. Michael Lind
likes to say that we have really had three Republics – almost as
many as France! –
one founded in 1788, the one founded by father Abraham, and the
one founded by Roosevelt II in 1933. This is rather realistic.
All three Republics have pointed to the same Constitution as their
Daniel Lazarre is impatient with all this flummery. He is unhappy
that the persistence of reactionary constitutional forms, even as
an elaborate game of make-believe, blocks his vision of a happy
socialist America. Away with the 18th-century checklist!
Let us have a sovereign national Parliament, ruling in the name
of the egalitarian toiling masses, to bring us up to the level of
Britain and Sweden.
program is not very appealing, quite frankly. But his and Lind’s
realism is very bracing. Certainly a Constitution which has allegedly
withstood Abe, Woodrow Wilson, FDR, and Billy C, cannot mean very
much at all in a practical sense.
Appleman Williams, a very different sort of leftist from Messrs.
Lind and Lazarre, wrote in 1965 that "If one feels the need
ancestor-diving in the American past and spear a tradition that
to our contemporary predicament, then the prize trophy is the Articles
Confederation." Murray Rothbard, who was equally favorable
to the Articles as against the Constitution, cited Williams's views
on the Articles and
decentralization in Left and Right (II, 1 [Winter 1966],
Constitution as a General Strike
think it behooves us to make constitutional arguments, as needed,
especially as regards states' rights, enumerated powers, and the
rights of Englishmen (so to speak). A reading of the Constitution
in the tradition of John Taylor of Caroline provides a very useful
reference point and instrument for deconstruction of the constitutive
lies on which the US Third Republic rests. Of course the ruling
elites are moving on toward a Fourth Republic and we must understand
that, just as we might defend a nation-state against the Empire
without taking up nation-statism as principle, the Constitution,
even rightly understood, is only relatively good.
Sorelian deployment of the Constitution as “myth” has its uses,
provided we acknowledge, in the end, that we are, and must be,
Joseph R. Stromberg [send him
mail] is the JoAnn B. Rothbard Historian in Residence at the
Ludwig von Mises Institute and
a columnist for Antiwar.com.
© 2001 LewRockwell.com