Such accounts do not have to be and usually aren’t downright false. The writers need only select the “right” facts to create the desired impression.

The task of historians who understand that the pro-State accounts are misleading is difficult, requiring not just that they write differing, corrective narratives, but also that they fend off the inevitable reaction that they are doing something “unpatriotic” in undermining belief in the saintliness of our government.

In this book Jeff Riggenbach introduces his readers to revisionist historians who have sought to change the way Americans understand their history. If you have never heard of Charles Beard, Harry Elmer Barnes, James Martin, William Appleman Williams, or other revisionists, the book will inform you how they came to reject the conventional view of our history and the impact of their work.

Consider first the Constitution. Most Americans believe that the nation was facing a crisis under the Articles of Confederation, so a group of wise and public-spirited men assembled to draft a much better and indeed nearly ideal plan of government. Revisionists have punctured both of those notions. There was no crisis under the Articles, and as for the Constitution, its somewhat vague language did not—and perhaps was not meant to—prevent the reemergence of a government that could assist favored commercial interests. History professor Arthur Ekirch wrote that the Constitution provided “a skeleton for the further development of a strong paternalistic state.”

What about the Civil War? The standard view is that the states of the Confederacy acted illegally in seceding from the Union and did so to preserve slavery. If you accept that, the war looks justified. Beard and Williams, however, saw things differently. Williams argued that “the cause of the Civil War was the refusal of Lincoln and other northerners to honor the revolutionary right of self-determination—the touchstone of the American Revolution.” Regarding slavery, Beard observed that abolition had never appeared in the platform of any major political party and few northern citizens cared about it, much less wanted war over it.

American involvement in World War I has also come in for a great deal of criticism from revisionists. The pro-State line is that President Woodrow Wilson had to bring the United States into the war to keep the vicious Germans and Austrians from crushing the peaceful, democratic Allies, and that mission was brilliantly accomplished. Harry Elmer Barnes, among others, thought the prowar, pro-Wilson adulation was absurd. Moreover, it took Americans’ attention away from the fact that the war had caused a shocking deterioration of liberties we had always taken for granted.

Okay, but World War II (“the good war”) is certainly above question—right? No. A number of revisionists maintain that the Roosevelt administration contrived to put the Pacific Fleet in Hawaii as bait for the Japanese (a top-ranking admiral was sacked when he complained about moving it from San Diego to Pearl Harbor), made diplomatic moves in November 1941 intended to provoke the Japanese, and gave the commanders in Hawaii no warning of the likelihood of an attack.

Revisionists have similarly taken a skeptical view of the Cold War, Vietnam, and Iraq. Nor have their efforts been limited to challenging pro-State justifications for war. Some have worked to correct conventional beliefs about our economic history, especially the Depression and the New Deal.

A remarkable fact about the revisionists is that although they come from different political philosophies (Riggenbach groups them as “Progressive,” “New Left,” and “Libertarian”), they have come to conclusions that are quite consistent. State power is predatory and harmful, except to some special interests. No, the Progressives, new leftists, and libertarians don’t agree on everything, but there’s more commonality than you might expect, particularly when it comes to war.

Riggenbach argues that the terms “left,” “right,” “liberal,” and “conservative” themselves need revision. Those terms arose from the French national assembly following the overthrow of Louis XVI, where deputies who wanted to conserve the old order of strong governmental control mostly sat on the right side, while those who advocated more individual liberty sat on the left. Therefore, he argues, we currently have two “conservative” parties since both Democrats and Republicans mostly want to maintain the statist, corporatist status quo.

An enlightening and provocative book.

The answer to the question “Is freedom a radical idea” is:  no and yes. Let me explain.

Starting with the “no”:  Most children grow up learning the libertarian, or nonaggression, ethic. Parents say: “Don’t hit, don’t take other kids’ stuff without asking, and don’t break your promises.” Nothing radical – in the sense of out of the mainstream — there. It neatly translates into: Respect life, liberty, and property, and honor your contracts.

Most people carry these principles with them into adulthood. They avoid common-law crimes against persons and property, not because they are afraid of the cops but because criminal behavior conflicts with living the life they want to live.

Libertarianism can be seen therefore as merely a plea for the consistent application of these rules to and for everyone. It’s Spencer’s Law of Equal Liberty.

Now let’s move on to the “yes.” In the political realm, freedom has been a radical idea indeed, the exception. There the rules are different. The State — that is, certain special individuals — may “legitimately” do what you and I can’t do. If you or I kill when our lives are not in mortal danger, it is called murder. When the State does it, it is called war, or counterinsurgency, or capital punishment. If you or I, threatening force, demand money from our neighbors for their protection or to do good works, it is called robbery. When the State does it, it’s called taxation. If you or I impress someone into service against his or her will, it’s called slavery. If the State does it, it’s called conscription or national service. Etc. Etc. Etc.

Why these differences? Many reasons have been offered throughout the millennia. The State was said to be the deity’s agent on earth. It was said to embody the general will. And it was said to operate by the consent of the governed.

Regardless of the rationalization, the State, by a process of moral alchemy, or moral laundering, claims to turn bad things into good. By this ideology, rulers have kept the idea of freedom tightly contained, when it is in effect at all.

Freedom Far Removed

Thus throughout history, and with only the rarest of exceptions, freedom has been far removed from the center of political events — even during that ostensibly exceptional period, say, 1776-1901. This is not to say the idea of freedom played no role whatever (the Declaration of Independence was a gleaming embodiment of the idea), but most of the time, it did not play the fundamental role that we tend to believe.

Contrary to popular sentiment, for example, freedom was not the driving force along the road to the Constitution (pdf), which has been fairly called a counterrevolution. We need only remind ourselves that the Constitution came after the Articles of Confederation, which (for all its faults) had deprived the national quasigovernment of both the power to tax and the power to regulate trade. (Can you imagine?) Those omissions, which Madison, Hamilton, and other leading founders regretted so badly, were “corrected” in Philadelphia in 1787. (Albert Jay Nock called it a coup d’état.) The warnings of the prophetic Antifederalists were ignored, and except for Jeffersonian respites now and again, we’ve lived with the predictable consequences ever since. John Taylor of Caroline and others were complaining about big government in the early 1800s!

Well, as historian Merrill Jensen put it, the “founding fathers who wrote the Constitution of 1787 were quite a different set of men from those who signed the Declaration of Independence in 1776.”

Violations of Freedom

The U.S. government of course sanctioned chattel slavery for Africans until 1865 (with lesser oppressions later), the Indians were brutalized, and the rights of women were not recognized. These things and substantial economic intervention by the states kept freedom from its rightful place. And the period from 1870 to whenever the Progressive Era started? War is the health of the State, Randolph Bourne wisely wrote. That would cover Civil Wars too. Lincoln came to power filled with enthusiasm for the Whig Henry Clay’s American System: internal improvements, protective tariffs, and central banking. Intellectual monopoly (patents and copyrights), business subsidies, and land grants to cronies were cut from the same cloth. Add the war, the income tax (which later expired), the veterans pension program, and you have the makings of one big government. The benefits of a big business-big government relationship were not lost on those with power and influence. (“The tariff is the mother of trusts.”)

Here’s how Arthur A. Ekirch Jr. summed up the touted golden age of freedom in his not-to-be-missed classic, The Decline of American Liberalism (newly reissued):

[I]n the America of the [eighteen] eighties and nineties, doctrines of laissez faire and of the limited state were being twisted and distorted from their original meaning. Businessmen and judges took up the individualism of Jefferson and [Herbert] Spencer and converted it into a rationale for materialist exploitation. Resisting public intervention or government regulation when it confined or restrained special interests, the business community, however, could see no inconsistency in an acceptance of the stream of subsidies and tariffs, of which Henry George and other individualists complained.

It turns out that most business people in that period were like most in any period. If you can gain some shelter from competition through the State, why not? Rent-seekers exist at all times, and rulers happily oblige them. (Jonathan R. T. Hughes’s The Governmental Habit Redux is instructive. See also this perceptive 1984 Freeman article by Edmund Opitz, “The Robber Barons and the Real Gilded Age.”)

Undeniably, material conditions improved for most Americans throughout this time. A degree of economic freedom goes a long way, and entrepreneurship found ways around the powers that be. But in a fully competitive economy, living standards would have risen — but without the distortions of monopoly (as identified by Benjamin Tucker), protection, and subsidies (most egregiously and consequentially in transportation) — and with more opportunity, later on, to make a living independent of any corporate hierarchy. (Yet who would not accept a slower acceleration in living standards as the price for a greater degree of freedom and independence?)

What does this tell us about freedom? It tells us that the good old days still lie ahead.

What DiLorenzo offers is not a biography of Hamilton, but instead a critical examination of his ideas and a historical exploration of how they have shaped American history. DiLorenzo contrasts the statist, mercantilist, and nationalist philosophy of Hamilton with the strict constitutionalism of Jefferson. He portrays Hamilton as a schemer, quoting contemporaries who felt that he was intentionally confusing in his economic proposals as a means of hoodwinking the uninitiated. Above all, DiLorenzo shows how Hamilton’s interventionist ideas have had disastrous consequences for America up to the present.

Hamilton’s vision for the nation included a strong sense of nationalism, zealous protectionism, enthusiasm for central banking, and methods of constitutional interpretation like the doctrine of “implied powers” that essentially stripped away the Constitution’s restraints on the central government. DiLorenzo depicts Hamilton and his intellectual followers as technocrats who view society as a lump of clay for them to fashion with their expert hands. They couldn’t grasp the spontaneous order of the free market.

To borrow a phrase from Adam Smith, Hamilton was the quintessential “man of system.” In his ideal society he and others who were blessed with inside knowledge of “the common good” would arrange things just so, thereby creating the ideal society. DiLorenzo points out explicit parallels between Hamilton’s thinking and Rousseau’s idea of “the general will,” under which government officials would “force people to be free.” Individual liberty holds no importance for such people.

DiLorenzo employs Austrian and Public Choice insights to expose the lasting harm we have suffered owing to Hamilton’s assortment of big-government ideas. Those ideas later metastasized into the “American System” of Henry Clay (the term was Hamilton’s) and the wide-ranging interventionism of Abraham Lincoln. They reached their nadir in the disastrous year 1913, with the adoption of the Seventeenth Amendment (providing for direct election of U.S. senators), passage of the federal income tax, and the establishment of the Federal Reserve. DiLorenzo sees that terrible trio as destroying what was left of Jeffersonianism and shackling the nation, perhaps permanently, with Hamilton’s ruinous vision.

The book makes a persuasive case about the harm we endure because of “the curse,” but DiLorenzo left me wondering about the relative fragility and robustness of different institutional arrangements. He discusses how constitutional words and phrases like “necessary” and “general welfare” were either grossly misinterpreted or used to usher in all sorts of state interventions, and he refers to the Confederate States of America’s attempts to remedy some of these problems in their own Constitution. But the kind of restraint that would have satisfied Jeffersonian strict construction begs to be explored in greater detail.

Only a few years elapsed between the ratification of the Constitution and the violent suppression of Pennsylvania tax rebels (which Hamilton himself led), and not too many years later the United States were (yes, the plural was once used) experimenting with central banking. How did we get so far from Jefferson’s vision so quickly?

DiLorenzo blames “Hamilton’s Disciple,” Chief Justice John Marshall, for misreading the Constitution, but I have to wonder if his famous decisions were so obviously a misreading and misapplication. Some libertarians like to believe the Jeffersonian minimalist interpretation is the “real” Constitution while the expansive Hamiltonian view is indefensible, and DiLorenzo seems to accept that view without questioning it.

The exact, intended meaning of the Constitution—if that can even be discerned—is not the focus of DiLorenzo’s book, however. Hamilton’s Curse explores the intellectual history of some of the ideas that helped transform the United States from a country where the government mostly left people alone into one where the government interferes in their affairs constantly. DiLorenzo reminds us of Richard Weaver’s famous quotation that “ideas have consequences” and proceeds to show the terrible consequences of Hamilton’s ideas.

Allow me to advise you, however, not to let 2008 end without taking note of “the holiday that isn’t.” It’s not recognized officially, and few Americans really know of it. I had to be reminded of it by a friend from Arizona, Roy Miller, one of the founders of the Goldwater Institute.

The day is December 15. It was on that date in 1791 that the fledgling United States of America formally adopted what we know as the Bill of Rights, the first ten amendments to the Constitution. Miller says, “Few days in American history were more critical to securing or proclaiming the principles behind the nation’s founding.”

A “Bill of Rights Day” is not on the calendar, but a free people don’t have to wait for Congress to declare a holiday to celebrate one. On December 15, take a moment to reread the Bill of Rights and reflect on its importance. Call it to the attention of friends and family. Without an agreement that a Bill of Rights would be added or without a consensus of what they would do, the Constitution itself would probably not have been accepted. The ten amendments ultimately adopted guarantee freedoms of religion, speech, the press, peaceful assembly and petition; the rights of the people to keep and bear arms, and to hold private property; rights to fair treatment for people accused of crimes, protection from unreasonable search and seizure and self-incrimination; and rights to a speedy and impartial jury trial and representation by counsel.

In this modern and supposedly enlightened age, not many people among the world’s 6.6 billion can honestly say they enjoy many of these rights to their fullest—or at all. Even in America we have to work hard to educate fellow citizens about the liberties the Bill of Rights is meant to protect. There are plenty in our midst who would sacrifice one or more liberties for the temporary and dubious security of a government program. This past June the Supreme Court affirmed the right to keep and bear arms but only by a 5–4 vote. No wonder Benjamin Franklin said the Constitution gave us “a republic, madam, if you can keep it.”

In the grand scheme of American liberty, how important is the Bill of Rights? It’s fundamental and foundational, and about as bedrock as it gets. In fewer than 500 words, many of our most cherished liberties are expressed as rights and unequivocally protected. It’s a roster of instructions to government to keep out of where it doesn’t belong. It bears the heavy imprint of a giant of republican government, James Madison.

Why did such critical protections end up as amendments instead of as core elements of the primary document? Here’s the background:

The Second Continental Congress, originally convened in 1775 at the outbreak of hostilities with the mother country, adopted the Articles of Confederation as the new nation’s first formal, national government. Some Americans came to believe by the late 1780s, however, that the Articles were weak and inadequate. The Constitutional Convention of 1787 produced a draft Constitution to replace them, subject to ratification by the states. A great debate ensued and people lined up in one camp or the other—the Federalists or the Antifederalists. The former favored the Constitution and in most cases, at least at first, without any amendments. The latter either opposed it altogether or conditioned their approval on adoption of stronger protections for individual liberties.

Keep in mind that virtually all the leading figures in this great debate were libertarians by today’s standards. They believed in liberty and limited government. Even the least libertarian among them would be horrified if he could see how later generations have ballooned the size and intrusiveness of the federal establishment. It never occurred to the most ardent Federalist that government should rob Peter to pay Paul for his health care, art work, alternative energy, prescription drugs, hurricane relief, or his notions of regime change in Somalia.

The Constitution and Centralization

So even without the Bill of Rights, the Constitution represented a huge advance for civilization. But during the ratification debate, enough citizens were wary of any centralization of power that they wanted to go further. I think they instinctively understood something that Thomas Jefferson once so aptly expressed, “The natural progress of things is for liberty to yield and government to gain ground.” When the Massachusetts legislature made it clear it would not ratify the Constitution unless language was added to strengthen individual rights, it triggered a movement among the states to do just that.

Madison is regarded as the “Father of the Constitution” because he was its primary author and, along with Alexander Hamilton and John Jay, part of the trio that wrote the Federalist Papers in its defense. On the matter of amending it with a Bill of Rights, he was at first opposed, being of the view that enumerating some rights in the form of amendments would open the door to government violations of any that were not listed. He eventually met that very objection by devising what became the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Madison became one of the most eloquent defenders of the Bill of Rights, and it is unlikely the Constitution would have been ratified without him or them.

In 1789 New Jersey was the first state to adopt the ten amendments that would become the Bill of Rights and when Virginia did so on December 15, 1791, they became part of the supreme law of the land. (Actually, 12 amendments were sent to the states, but two failed to win enough states to be ratified. The unratified amendments, originally numbers 1 and 2, set the ratio of House representative to population and forbade congressional pay raises to take effect “until an election of Representatives shall have intervened.” The latter was ratified as the 27th amendment in 1992.)

If you want to bone up on the Bill of Rights before December 15, check out the website of the Bill of Rights Institute (www.billofrightsinstitute.org), which produces instructional materials and sponsors seminars about America’s foundational documents. Some excellent books to consult on the subject include We the People by Forrest McDonald, Fighting for Liberty and Virtue by Marvin Olasky, Simple Rules for a Complex World by Richard Epstein, and Restoring the Lost Constitution: The Presumption of Liberty by Randy Barnett.

If originalism entails the problem Davies raises, it also has at least one more. Original intent, meaning, or understanding is inevitably multiple. John L. O’Sullivan, former editor of the Democratic Review, noticed this in 1862. The Constitution, he wrote, was America’s “ark of the covenant,” but “no man could ever exactly say what the Constitution was.” Its “elastic generalities of phrase” hid the deep divide “between the ‘Consolidation’ and the ‘State Rights’ parties in the Convention.. . .” Constitutional interpretation had been “twofold from the outset . . . Hamiltonian and Jeffersonian, or indeed Northern and Southern.” There was “not one . . . universally recognised Constitution, but two, widely different, and indeed conflicting” (my italics).

But what of our first constitution, the Articles of Confederation? For a time, they suited most of the people and the states. On the other hand, a vocal group in Congress was violently unhappy over the Articles’ failure to establish effective federal (national) power. Joseph Jones of Virginia, newly arrived in mid-1780, complained, “This Body never had or at least in few instances have exercised powers adequate to the purposes of war. . . .” Charles Thomson lamented in 1784, “A government without a visible head must appear a strange phenomenon to European politicians. . . .”

With new members, a dangerous optical malady often set in—“Continental Vision.” Writing to James Madison on February 20, 1784, Thomas Jefferson described the process: “[Young statesmen learn to] see the affairs of the Confederacy from a high ground; they learn the importance of the Union & befriend federal measures when they return.” Continental vision and “insufficient” power: Here was a dilemma, one that American nationalists—James Wilson, Madison, Alexander Hamilton, Robert Morris, and many others—determined to resolve. In their view, the country needed a mercantilist political economy, a standing army, public debt, and effective central taxation—things structurally and systematically interrelated. Nationalists wanted central power, as much of it as possible. Under the Confederation they made some interesting attempts to get it. We may begin with war powers.

Invoking vague war powers, early American nationalists urged that Congress ought to have certain powers and, therefore, did or “must” have them, neatly getting an “is” from an “ought.” Big on assertion, Congress spent the war complaining of its lack of real power, including power to tax. Yet mysteriously, Americans defeated Britain without anyone’s giving Congress many powers it craved or claimed. What actually happened?

Acting Without Authority

In practice, Congress coordinated revolutionary activity in the 13 incipient states and conducted diplomatic activity in their (plural) name. In so doing, Congress constantly recommended specific actions to the states, relying on them to carry the measures out. Before ratification of the Articles (1781), Congress often undertook measures for which it could show no obvious authority whatsoever, including the debt it created, its adoption of a European-style code of military “justice” for the Continental Army, and its creation of that army itself. Congress could only appeal to the wartime emergency, iron necessity, “public safety,” and the like. Under the Articles, nationalists complained endlessly of the powers Congress had “lost” with ratification. They referred of course to earlier congressional claims of inherent power—those being “proven” by the fact that Americans in their states had been good enough to cooperate. The price of following Congress’s advice and recommendations was to be told later that one had followed orders and obeyed commands.

American historians largely agree with the original claimants. Legal historian Edward S. Corwin was a case in point. Congress had, he admits, “no real governing power.” The states, on Congress’s recommendations, seized property, repressed Tories, suspended habeas corpus, and undertook “measure after measure that entrenched upon the normal life of the community drastically.” Regrouping, he concludes: “The fact, however, that this legislation came from the state legislatures whereas the war power was attributed to the United States in the Continental Congress served to obscure the fact that the former was really an outgrowth of the latter.”

This calls to mind the paradox, which I have noted previously (“On Misplaced Concreteness in Social Theory,” The Freeman, May 2006), whereby actual successful social action tends to be denounced as a dreadful evil or social problem. In the case at hand, cooperation serves to allocate authority away from those who acted. Whether that authority really entailed a spectral “war power” need not detain us. Whatever that last abstraction did for Congress from 1776 to 1781, and even under the Articles, 1781–1783, it did very little for it after 1783 without the war. Nationalists saw this problem coming. Late in the war, Gouverneur Morris hoped for “a Continuance of the War, which will convince people of the necessity of Obedience to common Counsels. . . .”

In the hunt for added congressional powers, nationalists employed deductions from International Law and pleaded Machiavellian necessities and moments. According to Merrill Jensen, they sought “to establish precedents [from which] they could argue the sovereignty of Congress.” Jensen stresses the interest of certain land companies in having their titles confirmed by the higher “government,” as well as the public creditors’ desire to have depreciated paper claims redeemed at somewhere near face value.

Hamilton hoped Congress would simply assert “undefined Powers” and see what they got away with. They should “assume Congress had once had such powers.” Boldness was needed to build a governing coalition of army, public creditors, and other nationalists. Madison was more indirect. In a Report to Congress in March 1781, he, James Duane, and James Varnum asserted a “general and implied power. . . to carry into effect all the Articles of the said Confederation against any of the States” but could find “no determinate and particular provision.” They therefore urged amendment of the Articles so that Congress could “employ the force of the United States” against states failing to meet funding requisitions.

After Rhode Island rejected an amendment to create a federal impost, Hamilton, Madison, and Thomas FitzSimons drew up a lengthy Congressional Reply in December 1782, calling the impost “a measure of necessity.” Congress, they urged, had “an indefinite power of prescribing the quantity of money to be raised.” This brought the impost “within the spirit of the Confederation.” Further, Congress, “empowered to borrow money,” had power “by implication, to concert the means necessary to accomplish that end.” Arguing against Rhode Island’s position, Robert Morris—federal financial czar—wrote on October 24, 1782, “[I]f a thing be neither wrong nor forbidden it must be admissible [and] if complied with, will by that very compliance become constitutional.” Now, mere acquiescence was “consent,” and consent bred legality. Meanwhile, having thought the thing over, other states had “rescinded” their earlier approval of the impost amendment.

Nationalist aspirations for revenue did not lessen with time. In a speech on January 28, 1783, Madison found “general revenue” to be “within the spirit of the Confederation.” Hamilton agreed, but un-bagged the cat by saying, “[I]t was expedient to introduce the influence of officers deriving their emolument from . . . Congress.” Madison often suggested naval blockades of offending states. He seems also to have spotted an implied power to coerce the states, even without an amendment. (Thirty years later, as president, Madison tried to coerce Britain and France with an embargo, but got the War of 1812 instead.) Even Governor George Clinton of New York spied an implied “Power of compelling the several States to their Duty and thereby enabling the Confederacy to expel the common Enemy.”

But Congress could not make the states ratify an amendment for a modest impost, much less one for their own coercion or blockade. For now, big notions drawn from Machiavelli, Vattel, and Pufendorf were of no avail. They did serve, however, in building both nationalist ideology and a theory of the union, and they yet serve historians who want philosophical foundations for the practical—even cynical—system the nationalists put over a few years later.

Another possible way out was the treaty power duly inscribed in the ninth Article of Confederation. In a centralizing mood, Jefferson himself, writing to James Monroe from Paris on June 17, 1785, advocated using the treaty power “to take the commerce of the states out of the hands of the states” and give it to Congress, which under the Articles had “no original and inherent power” over the subject. But Jefferson did not try to find implied powers in the Articles, nor did he deduce powers from some congressional sovereignty that “necessarily” arose under international law.

The treaty-power dodge reappeared much later, fueling the Old Right’s Bricker Amendment movement of the early 1950s. Senator John Bricker (R-Ohio) and his supporters wanted to keep Congress and the president from aggrandizing themselves under the vaguely worded treaty clause of the present constitution. They meant for their amendment, which failed in the Senate by one vote in February 1954, to meet the problem.

Utilizing Public Debt

Nationalists focused more and more on the public debt. Congress quit issuing credit money in late 1779. Thereafter, as Madison wrote to Jefferson on May 6, 1780, Congress became “as dependent on the States as the King of England is on the Parliament.” Nationalists saw this situation as completely improper. And so, Lance Banning observes, they “proposed to use the national debt to create a single nation—or at least an integrated national elite—where none existed in 1783.”

E. James Ferguson writes, “The Union was a league of states rather than a national system because Congress lacked the power of taxation. This was not an oversight.” Further, the federal debt itself was “inconsistent” with such a union. Jack N. Rakove adds, “Congress lacked the effective power or, once the Articles were ratified, the constitutional right either to levy taxes on its own authority, or to compel the states to obey its recommendations. It is certainly true that the states would never have ratified the Articles had they contained such provisions. . . .”

Nationalists feared the states would pay off the debt. Like the English Whigs in 1649, they needed the debt as the “cement” of union, as Hamilton called it. The debt was needed, in Rakove’s words, “to justify endowing Congress with independent revenues.” If revenue were found, public creditors and the underpaid officer class would rally to the cause of national power. All these advocates well understood the inflationary potential of consolidated public debt in the hands of fractional-reserve bankers. The economy would boom under their own profitable management.

Nationalists conducted an unrestrained campaign against the Confederation’s limits on power. “Water would not boil” due to the Articles. More important, nationalists discovered The People. Within doors, Federalists habitually denounced the people as a great rabble, the source of danger, wild enthusiasms, paper money, and attacks on property. Now they hastened to embrace John Locke’s empty marker of popular sovereignty to justify a takeover in the name of the people. Then they hustled the people off stage so the new machine “could go of itself.”

Social-Contract Theory

Anyone who reads Madison’s enormous journal of the Constitutional Convention will find the delegates arguing a mass of undigested social-contract theory big enough to sicken a hog. Here is an economical explanation: ambitious men with political, economic, and ideological motives wanted a central government with vague (therefore large) powers. They had, doubtlessly, a certain kind of public spirit. The system they created unfolded its inherent defects over time. To provide cover for their more specific goals—power, profit, prosperity, fisheries, security for slavery, land grabbing, glory, fame, good government—the framers issued great clouds of political “science” and theory that have confused Americans ever since. Madison was the outstanding mystifier, but there were others. Nationalists artfully decried the governments of the states while championing the Sovereign People, neatly dodging the question of who the people were and whether there were 13 peoples or one.

The constitutional deed and its defending rationales do not seem much grander than the origins of many other states. But as Jesse Lienesch has written, the founders succeeded in presenting themselves as demigods who saved the nation. It is a point of American orthodoxy to believe them. Charles Beard and J. Allen Smith, seconded by Albert Jay Nock, got much flak for recognizing that the Federalists had mixed motives and self-serving goals.

To win ratification, American nationalists, rechristened as “Federalists,” sold the new Constitution as a document involving “limited” and “enumerated” powers. On this reading, any power not obviously granted was not granted and the new outfit would not have it. Having cornered themselves verbally, Federalists showed their original understanding in the first Congress by enacting all manner of laws directly in conflict with their assurances to the ratifying conventions. Senator William Maclay of Pennsylvania especially noted the Judiciary Act, Hamilton’s funding system, economic coercion to force Rhode Island to ratify the Constitution, the War Department, a standing army—and federal consolidation generally. (See Maclay’s Journal at http://tinyurl.com/3ch2nm.) Seeing this, the Federalists’ opponents, with a different original understanding, argued for theirs as “Republicans” led by Jefferson, John Taylor, and others. They meant to hold the former promising parties to their pledges. Historian Garry Wills affirms that the ratifiers were somewhat swindled, but holds this to be a universal blessing that makes modern American governance possible.

And for all their high-minded talk about The People, popular consent, and so on, nationalists did not rule out violence. Benjamin Rush wrote Richard Price on June 2, 1787, that, if needed, “force will not be wanting,” since the wealthy and military classes wanted a new government. As Jensen writes, “It was power, not powers, that they wanted.”

Could the nationalizers have gotten their way by ingeniously stretching the Articles? One possible way would have been to filch the states’ powers and reassemble them into a collective power. Nationalists might have contended that a majority of congressional delegations—each delegation embodying, fully and immediately, its state’s separate sovereign powers—could, in concert, do any old thing, outside the Articles, that came to mind. Similar ideas had yielded results before the Articles came into force in 1781.

The nationalists were not the sort to be denied power. They might have made interesting inroads by discovering “indefinite” or “implied” powers, or by invoking the Articles’ “spirit.” Patiently accumulating “precedents,” they could cash them in, down the road, as grounded on powers that had always “been there.” But nationalists were not as patient as, say, the Supreme Court.

And certain structural advantages still remained to the states and the people(s). Their key advantage involved taxation. Congress had to ask the states for its money. It still seems a good arrangement.

Here our sub-theme—originalism—returns. It appears that original contestants contested many constitutional “meanings” at the very beginning. On this view, any simple originalism means clinging to original mistakes. The framers’ opinions were certainly original; how or whether they dictate to us today through the ether is another matter.

Works Used

1. Lance Banning, “James Madison and the Nationalists, 1780–1783,” William & Mary Quarterly, April 1983.
2. Edward S. Corwin, The President: Office and Powers, New York, 1957.
3. Thomas Y. Davies, “Correcting Search and Seizure History,” Mississippi Law Journal, vol. 77, 2007.
4. Jonathan Elliot, Debates in the State Conventions on the Adoption of the Federal Constitution, I, 1973 [1830]).
5. E. James Ferguson, “The Nationalists of 1781–1783 and the Economic Interpretation of the Constitution,” Journal of American History, September 1969.
6. E. James Ferguson, The Power of the Purse, Chapel Hill, N.C., 1961.
7. Paul Leicester Ford, ed., The Works of Thomas Jefferson, IV, New York, 1904.
8. Merrill Jensen, “The Idea of a National Government during the American Revolution,” Political Science Quarterly, September 1943.
9. Jesse Lienesch, “The Constitutional Tradition: History, Political Action, and Progress in American Political Thought, 1787–1793,” Journal of Politics, February 1980.
10. William Maclay, The Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791, New York, 1965.
11. Roger McBride, Treaties versus the Constitution, New York, 1955.
12. John L. O’Sullivan, Union, Disunion, and Reunion: A Letter to General Franklin Pierce, London, 1862.
13. Jack N. Rakove, The Beginnings of National Politics, New York, 1979.
14. Murray Rothbard, Conceived in Liberty, IV, New Rochelle, N.Y., 1979.

We might think those words—or words to the same effect—are in the U.S. Constitution. But they are not. They are from Article II of the Articles of Confederation, America’s first constitution. They could have been placed in the U.S. Constitution but were deliberately left out in 1787.

After the Constitution was ratified, something like Article II was added to the Constitution as the Tenth Amendment. Unfortunately it is like Article II in the same sense that a whale is like a fish—superficially.

The Tenth Amendment says: “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.”

The most significant difference is that Article II qualifies the word delegated with expressly. The Tenth Amendment does not. The difference was no oversight. This suggests that while the Articles of Confederation was a document of express, enumerated congressional powers, the Constitution, contrary to widespread belief, was not.

Professor Calvin H. Johnson of the University of Texas Law School published a paper in 2006 that sheds light on this subject. “The Dubious Enumerated Power Doctrine” presents formidable evidence that the framers had no intention of limiting the national government’s powers to the 16 items listed in Article I, Section 8, of the Constitution.

“In carrying over the Articles’ wording and structure, they removed old Article II’s limitation that Congress would have only powers ‘expressly delegated’ to it,” Johnson writes. “When challenged about the removal, the Framers explained that the expressly delegated limitation had proved ‘destructive to the Union’. . . . Proponents of the Constitution defended the deletion of ‘expressly’ through to the passage of the Tenth Amendment. That history implies that not everything about federal power needs to be written down.”

The Constitutional Convention operated on the assumption that more, not fewer, powers were needed for the national government than were allowed under the Articles. Johnson quotes some of the framers to indicate this attitude. “The evils suffered and feared from weakness in Government have turned the attention more toward the means of strengthening the [government] than of narrowing [it],” Madison said to Thomas Jefferson.

When the convention began its work the delegates passed resolutions to guide the committees that were drafting particular sections of the document. Johnson writes that one such binding resolution specified that the new government would have every power enumerated in the Articles and an additional power (quoting the resolution): “to legislate in all Cases for the general Interests of the Union.”

This is contrary to the common view that Article I, Section 8, of the Constitution necessarily exhausts the national government’s powers. That view is undermined by several inconvenient facts. For example, the first clause of Article I, Section 8, states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . . .” That’s a hefty grant of power that does not appear to be further restricted by any subsequent language. (Jefferson and Madison disagreed. See Federalist 41 by Madison, keeping in mind that the Federalist Papers were essentially ad copy for the Constitution and against the Anti-federalist opposition.) The 16 specific powers that follow don’t appear to be limits on the taxation clause but rather coequal provisions.

But then why include a list of powers? Johnson writes: “Reading the Constitution as giving a general power to provide for the general welfare means that the enumerated powers of clauses 2 through 17 are illustrative of what Congress may do within an appropriately national sphere, but are not exhaustive.”

In other words, Congress can’t do whatever it wants. It can only act on behalf of the common defense and general welfare. Thus in the eyes of the framers, the government would be limited, but not nearly as limited as today’s constitutionalists believe. The view among the framers was that Congress’s jurisdiction covered all matters national in scope, leaving local matters to the states. But, as Johnson writes, “both Madison and Hamilton argued that the division between the federal and state governments was a legislative or political question that would be set in the future by competition between those governments for the loyalty of the people.”

Implied Powers

We know that the Constitution must have contained implied powers from the beginning. Article I, Section 9, expressly prohibits Congress from doing certain things, such as passing ex post facto laws and bills of attainder, granting titles of nobility, and interfering with the slave trade until 1808. Why would such prohibitions have been thought necessary if Congress could exercise only the enumerated powers? Another example: The Fifth Amendment limits the power of eminent domain, but the Constitution itself does not enumerate any power of eminent domain. It must be implied.

Johnson’s argument would not be news to the Anti-federalists, that group of early Americans who feared the proposed Constitution would create an imperial national government with virtually unlimited power. (It should be noted that southern Anti-federalists like Patrick Henry objected to an expanded national government in part because they feared the taxing power might be used to free their slaves. Thus was a good cause, decentralization of power, perhaps permanently stained by a link to the abomination of slavery. Samuel Johnson had it right, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”) When advocates of the proposed Constitution advertised the document as containing express, enumerated powers, the Anti-federalists and fellow travelers such as Thomas Jefferson scoffed.

For example, James Wilson said: “The congressional authority is to be collected, not from tacit implication but from the positive grant expressed in the [Constitution]. . . . [E]verything which is not given [to the national government], is reserved [to the states].”

To which Jefferson replied: “To say, as Mr. Wilson does that . . . all is reserved in the case of the general government which is not given . . . might do for the Audience to whom it was addressed, but is surely gratis dictim, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation [Article II], which declared that in express terms.”

How the Constitution was intended to be interpreted and how it was in fact interpreted under the pressure of public opinion were initially two different things. As historian and economist Jeffrey Rogers Hummel explains, “To oversimplify only slightly, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted.” For a while anyway.

Calvin Johnson is happy the Constitution has implied powers. No libertarian would be. But we must separate what the Constitution appears to say and how we evaluate it, and resist the temptation to let our political-moral views warp our reading. As Lysander Spooner in 1870 wrote, the Constitution “has either authorized such a government as we have had, or has been powerless to prevent it.” Liberty’s champions have to come to terms with that logic.

Alas, it says nothing about knowing American history.

Good thing for Sen. Lindsey Graham (R-S.C.). He’d have to find honest work.

Interviewed after last January’s State of the Union address, Graham was asked about the situation in Iraq. Trying to put the difficulties in perspective, he said the United States did not get its constitution until 1789.

Buzz! Wrong answer, Sen. Graham. But as a consolation prize you get to take home a copy of Merrill Jensen’s book, The New Nation: A History of the United States During the Confederation, 1781-1789. We’ll also throw in a copy of Herbert Storing’s What the Anti-Federalists Were For. And thanks for playing our game.

Seriously, I realize that children learn virtually nothing about the eight years before 1789 during which the United States existed under the Articles of Confederation. But shouldn’t someone who holds himself qualified to be a U.S. senator know that what we call “the Constitution” was really America’s second constitution?

The Articles were adopted by the Second Continental Congress on November 15, 1777, and took effect after ratification on March 1, 1781. That was seven months before Cornwallis surrendered at Yorktown on October 19, 1781, and two and a half years before the Treaty of Paris was signed on September 3, 1783.

They remained in effect until “the Constitution” displaced them in 1789. The process by which the Articles were scrapped—rather than amended—in favor of an entirely new blueprint was dubious. As the Anti-federalist “Federal Farmer” (most likely Melancton Smith of New York) wrote in October 8, 1787, had the people known that a new constitution creating a strong central government was to be written, “no state would have appointed members to the convention.”

Eight years is a significant period for a nascent country to endure after breaking away from an empire. Sen. Graham’s remarks were meant to suggest that what took place in the United States during that time was similar to what’s taking place now in Iraq. But that is ridiculous. The 13 states did not embroil themselves in civil war or sectarian violence—neither internally nor with one another. Quite the contrary.

How was life under the Articles of Confederation? As Merrill Jensen writes, “Americans fought against and freed themselves from . . . coercive and increasingly centralized power. . . . They did not create such a government when the Articles of Confederation were written, although there were Americans who wished to do so. . . . Thus the American Revolution made possible the democratization of American society by the destruction of the coercive authority of Great Britain and the establishment of actual local self-government within the separate states under the Articles of Confederation.”

Under the Articles, Congress had no power to tax or to erect trade barriers. If it needed revenue it had to petition the states. There was no separate executive branch.

People in the new states, Jensen writes, were full of optimism about the possibilities ahead. Criminal codes were made more humane, with the death penalty removed for all crimes but murder and, in some cases, treason. Property qualifications for voting were abolished over time. Charities and mutual-aid societies were formed, along with library, scientific, and medical associations. Schools were founded. The union of church and state was increasingly opposed.

Of course there was slavery, which contradicted the philosophy espoused in the Declaration of Independence. But “[w]ithin a few years after 1775, either in constitutions or in legislation, the new states acted against slavery. Within a decade all the states except Georgia and South Carolina had passed some form of legislation to stop the slave trade,” Jensen writes. New England states and Pennsylvania took steps toward abolition, and anti-slavery societies flourished.

What about the economies of the states? We can infer much from the fact that those who wanted to overthrow the Articles for a new constitution warned of coming economic turmoil if the central government were not fortified. Hence turmoil was a prediction not a description. Although individuals (white males) were free to a hitherto unknown extent, the states were no models of laissez faire.

Rent-seeking (political entrepreneurship) was rampant in the states, as it has been in every real-world system. Subsidies, loans, trade restrictions, and land giveaways were common. In this largely agrarian society, Jensen writes, “the dominant note was sounded by American merchants and business men who lived mostly in the seaport towns. . . . Their power was born of place, position, and fortune. They were located at or near the seats of government and they were in direct contact with legislatures and government officers. They influenced and often dominated the local newspapers which voiced the ideas and interests of commerce and identified them with the good of the whole people, the state, and the nation.”

Merchants and manufacturers disagreed on what kind of government intervention should exist, but not on whether it should exist. That’s because they had different competitors. Merchants liked imports but wanted barriers to foreign (especially British) shipping, while manufacturers wanted barriers to foreign goods and didn’t care about shipping. Part of the impetus to a strong central government was business’s desire for a uniform national economic policy, since individual states, acting alone, could hurt themselves by having more stringent restrictions than their neighbors and one state could capture the lion’s share of trade by competitively lowering its barriers. In other words, the consolidation of 1789 was part regulatory cartel.

Regional Differences

There were also regional differences. Most manufacturing was in the North, so protectionist sentiment was concentrated there. The South had little manufacturing and wanted access to cheap foreign goods. Thus high protective tariffs found little support. Northerners who coveted the southern market realized that only a nationwide trade policy would serve their interests. On the other hand, southern farmers wanted as many shipping options as possible and had little interest in restrictions on foreign carriers.

State economies suffered booms and busts—and a depression in 1784–85—thanks to paper money, government banking policies, and other intervention. But the crises were not extraordinary. As Jensen summarizes, “There is nothing in the knowable facts to support the ancient myth of idle ships, stagnant commerce, and bankrupt merchants in the new nation. As long ago as 1912, Edward Channing demonstrated with adequate evidence that despite the commercial depression, American commerce expanded rapidly after 1783, and that by 1790 the United States had far outstripped the colonies of a few short years before.”

Despite the heavy intervention, the states still had virtually an unprecedented degree of economic freedom. A person could easily get a plot of land and take care of his family by farming. There was no distant overbearing central bureaucracy to worry about. Contact with government was minimal. Imagine what the economic growth and the justice of income patterns would have been had the states practiced laissez faire!

Thus contrary to Sen. Graham, pre-1789 America had a constitution, almost no central government, prosperity, and peace. Not too shabby.

The reasons for junking the Articles of Confederation for the Constitution are worthy of study but too big a topic for this column. Suffice it to say, as Jensen did, that “the founding fathers who wrote the Constitution of 1787 were quite a different set of men from those who signed the Declaration of Independence in 1776.”

Alas, it says nothing about knowing American history.

Good thing for Sen. Lindsey Graham (R-S.C.). He’d have to find honest work.

Interviewed after Tuesday night’s State of the Union address, Graham was asked about the situation in Iraq. Trying to put the difficulties in perspective, he said the United States did not get its constitution until 1789.

Buzz! Wrong answer, Sen. Graham. But as a consolation prize you get to take home a copy of Merrill Jensen’s book The New Nation: A History of the United States During the Confederation, 1781-1789 . We’ll also throw in a copy of Herbert Storing’s What the Anti-Federalists Were For. And thanks for playing our game.

Seriously, I realize that children learn virtually nothing about the eight years before 1789 during which the United States existed under the Articles of Confederation. But shouldn’t someone who holds himself qualified to be a U.S. senator know that what we call the Constitution was really America’s second constitution?*

The Articles were adopted by the Second Continental Congress on November 15, 1777, and took effect after ratification on March 1, 1781. That was seven months before Cornwallis surrendered at Yorktown on October 19, 1781, and two and a half years before the Treaty of Paris was signed on September 3, 1783.

The Articles remained in effect until the Constitution displaced them in 1789. The process by which the Articles were scrapped — rather than amended — in favor of an entirely new blueprint was dubious. As the Anti-federalist Federal Farmer (most likely Melancton Smith of New York) wrote in October 8, 1787,

A general convention for mere commercial purposes was moved for — the authors of this measure saw that the people’s attention was turned solely to the amendment of the federal system; and that, had the idea of a total change been started [sic], probably no state would have appointed members to the convention. The idea of destroying, ultimately, the state government, and forming one consolidated system, could not have been admitted — a convention, therefore, merely for vesting in congress power to regulate trade was proposed. [Emphasis added.]

Eight years is a significant period for a nascent country to endure after breaking away from an empire. Sen. Graham’s remarks were meant to suggest that what took place in the United States during that time was similar to what’s taking place now on in Iraq. But that is ridiculous. The 13 states did not embroil themselves in civil war or sectarian violence — neither internally nor with one another. Quite the contrary.

Freed from Central Coercion

How was life under the Articles of Confederation? As Merrill Jensen writes, Americans fought against and freed themselves from . . . coercive and increasingly centralized power . . . . They did not create such a government when the Articles of Confederation were written, although there were Americans who wished to do so. . . . Thus the American Revolution made possible the democratization of American society by the destruction of the coercive authority of Great Britain and the establishment of actual local self-government within the separate states under the Articles of Confederation.

Under the Articles, Congress had no power to tax or to erect trade barriers. If it needed revenue it had to petition the states. There was no separate executive branch, with all its potential for de facto quasi-monarchization.

People in the new states, Jensen writes, were full of optimism about the possibilities ahead. Criminal codes were made more humane, with the death penalty removed for all crimes but murder and, in some cases, treason. Property qualifications for voting were abolished over time. Charities and mutual-aid societies were formed, along with library, scientific, and medical associations. Schools were founded. The union of church and state was increasingly opposed. The steps in the direction of religious freedom and the complete separation of church and state were thus halting, but the direction was sure and the purpose was clear, Jensen writes.

Of course there was slavery, which contradicted the philosophy espoused in the Declaration of Independence. But some states moved against it. Within a few years after 1775, either in constitutions or in legislation, the new states acted against slavery. Within a decade all the states except Georgia and South Carolina had passed some form of legislation to stop the slave trade, Jensen writes. New England states and Pennsylvania took steps toward abolition, and anti-slavery societies flourished.

What about the economies of the states? We can infer much from the fact that those who wanted to overthrow the Articles for a new constitution warned of coming economic turmoil if the central government were not fortified. Hence turmoil was a prediction not a description. Although individuals (white males) were free to a hitherto unknown extent, the states were no models of laissez faire. (But then neither was the consolidated national system after 1789. The first economic action of the first Congress under the Constitution was imposition of a protective tariff.)

Rent-seeking (political entrepreneurship) was rampant in the states, as it has been in every real-world system. Subsidies, loans, trade restrictions, and land giveaways were common. In this largely agrarian society, Jensen writes, the dominant note was sounded by American merchants and business men who lived mostly in the seaport towns. . . . Their power was born of place, position, and fortune. They were located at or near the seats of government and they were in direct contact with legislatures and government officers. They influenced and often dominated the local newspapers which voiced the ideas and interests of commerce and identified them with the good of the whole people, the state, and the nation. (Hence, the bad name capitalism has for many people.)

Merchants and manufacturers disagreed on what kind of government intervention should exist, but not on whether it should exist. That’s because they had different competitors. Merchants liked imports but wanted barriers to foreign (especially British) shipping, while manufacturers wanted barriers to foreign goods and didn’t care about shipping. Part of the impetus toward a strong central government was business’s desire for a uniform national economic policy, since individual states, acting alone, could hurt themselves by having more stringent restrictions than their neighbors and one state could capture the lion’s share of trade by competitively lowering its barriers. In other words, the consolidation of 1789 was part regulatory cartel.

Regional Differences

There were also regional differences. Most manufacturing was in the North, so protectionist sentiment was concentrated there. The South had little manufacturing and wanted access to cheap foreign goods. Thus high protective tariffs found little support. Northerners who coveted the southern market realized that only a nationwide trade policy would serve their interests. On the other hand, southern farmers wanted as many shipping options as possible and had little interest in restrictions on foreign carriers.

State economies suffered booms and busts — and a depression in 1784-85 — thanks to paper money, government banking policies, and other intervention. But the crises were not extraordinary. As Jensen summarizes, There is nothing in the knowable facts to support the ancient myth of idle ships, stagnant commerce, and bankrupt merchants in the new nation. As long as ago as 1912, Edward Channing demonstrated with adequate evidence that despite the commercial depression, American commerce expanded rapidly after 1783, and that by 1790 the United States had far outstripped the colonies of a few short years before.

Despite the heavy intervention, the states still had virtually an unprecedented degree of economic freedom. A person could easily get a plot of land and take care of his family by farming. There was no distant overbearing central bureaucracy to worry about. Contact with government was minimal. Imagine what the economic growth and the justice of income patterns would have been had the states practiced laissez faire!

Thus contrary to Sen. Graham, pre-1789 America had a constitution, almost no central government, prosperity, and peace. Not too shabby.

The reasons for junking the Articles of Confederation for the Constitution are worthy of study but too big a topic for today. Suffice it say, as Jensen did, that the founding fathers who wrote the Constitution of 1787 were quite a different set of men from those who signed the Declaration of Independence in 1776.

* * *

That means George Washington wasn’t really the first president of the United States. He was the 11th. Ten men served as president of the United States under the Articles. Samuel Huntington was first. Some people erroneously regard John Hanson as first. Huntington’s tenure, September 28, 1779,to July 9, 1781, was transitional; he was elected by the Continental Congress, but by the time ill health forced him to resign, the Articles were in effect. The first president elected under the Articles was Thomas McKean, July 10, 1781, to November 4, 1781. Hanson, November 5, 1781, until November 3, 1782, was the first to serve the full term, of which only one was allowed. President meant president of the Congress. There was no executive branch.

It would be nice if their wish came true. But it’s not going to happen, for reasons I will discuss here. This is another example of Richman’s Maxim: There’s no shortcut to a free society. Since there will be no magic bullet, we will have to advance freedom the old-fashioned FEE way, by becoming as knowledgeable and articulate in our advocacy as possible in order to attract those who hunger to understand freedom. Nothing less will do.

So what about the income tax? There is no shortage of arguments that the income tax is illegal, even unconstitutional. It’s been said to violate the Fifth Amendment guarantee against self-incrimination, that it’s really voluntary, that Federal Reserve Notes aren’t money, and on and on. Most curious is the argument that the income-tax law was never intended to tax wages and salaries earned in the private sector because the lawmakers knew such a tax would be unconstitutional. There are several variations on this theme, and here I can discuss only the broad issues. (Admittedly this leaves me open to the charge that I have not addressed a particular variation. But they all suffer from a similar flaw.)

Let there be no misunderstanding over what I am about to say: The income tax is immoral on many levels. It permits the government nearly unlimited access to the people’s wealth. It opens the door to inquisitorial intrusion into their private affairs. And it introduces such complexity into the law that everyone is a potential criminal.

Three strikes—why isn’t it out?

Alas, something can be immoral and yet legal and constitutional. That’s the fix we’re in.

Some people argue that the Sixteenth Amendment to the Constitution is unconstitutional. But the Constitution sets up a virtually open-ended, if onerous, amendment process. The framers excluded only three subjects from amendment (the importation of slaves and apportionment of direct taxes, which expired in 1808, and equal state representation in the Senate). An amendment to the Constitution therefore cannot logically be unconstitutional. (An unrelated argument is that the Amendment was not properly ratified by the states. Needless to say, the courts established by the Constitution disagree.)

Some legal critics of the tax accept the Amendment, but argue that it is misunderstood and therefore the 1913 income-tax law has been wrongly applied to private-sector wages and salaries. But the misunderstanding is in the people who make this argument. Let’s get straight why the Amendment was proposed. It is widely believed that the U.S. Supreme Court in 1895 declared income taxation in itself unconstitutional, making the Amendment necessary if the feds were to grab part of our paychecks. This is wrong. The Supreme Court’s 1895 Pollock ruling did not strike down the principle of income taxation. All it did was declare taxation of income from real and personal property unconstitutional when it is not apportioned among the states. Taxing wages and salaries was fine as far as the Court was concerned. The only reason it struck down the entire law was that the justices assumed that Congress did not intend that only wages and salaries be taxed.

To understand the Court’s reasoning we have to take up the distinction between direct and indirect taxation. The Constitution requires that direct taxes be apportioned according to the populations of the states, while indirect taxes must be uniform throughout the states. This seems straightforward, until you appreciate that the framers had no clear idea what’s a direct tax and what’s an indirect tax. Such heavyweights as James Madison, Alexander Hamilton, and Fisher Ames couldn’t agree. In America income taxation has long been regarded as indirect, a kind of excise. But in England it has always been regarded as direct.

The Court in 1895 confirmed that income taxation usually is indirect and therefore does not require apportionment, only uniformity. But it found an exception. Taxing income from real and personal property, the Court said (dubiously), is like taxing the property itself, and so, in effect, is direct taxation—thus requiring apportionment. Since the law passed by Congress in 1894 did not contain an apportionment clause, that part was held unconstitutional, and so the whole thing fell.

The Sixteenth Amendment had one purpose: to eliminate the apportionment rule when the source of the income being taxed turns what looks like an indirect tax into a direct tax. That’s why the Amendment says: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” (Emphasis added.)

Ever since, the courts have emphasized that the Amendment gave the federal government no new power to tax. All it did was remove from consideration the source of income being taxed and thereby eliminate a restriction on Congress’s taxing power.

The income-tax law passed in 1913 under the newly ratified Amendment was upheld by the Supreme Court in 1916 in the Brushaber case. Here the Court embraced the broadest possible interpretation of the federal taxing power—a power that, the Court said, predates the Sixteenth Amendment. The Court said: “That the authority conferred upon Congress by 8 of article 1 ‘to lay and collect taxes, duties, imposts and excises’ is exhaustive and embraces every conceivable power of taxation has never been questioned. . . . And it has also never been questioned from the foundation . . . that there was authority given, as the part was included in the whole, to lay and collect income taxes. . . .” The Court went on to acknowledge: “the conceded complete and all-embracing taxing power”; “the complete and perfect delegation of the power to tax”; “the complete and all-embracing authority to tax”; and “the plenary power [to tax].” That was just in one paragraph. Later in the opinion we find this: “[T]he all-embracing taxing authority possessed by Congress, including necessarily therein the power to impose income taxes. . . .”

In the succeeding 90 years, no Supreme Court has contradicted the holding in Brushaber.

Facing the Facts

Where does this leave liberty’s advocates? First, we have to face the facts. Like it or not, the U.S. Constitution empowers the Congress to levy any tax it wants. Anyone is free to come up with a contrary interpretation, but the constitutionally endowed courts have spoken. Reading one’s libertarian values into the Constitution is futile. For better or worse, the Constitution means what the occupants of the relevant constitutional offices say it means. The battle over the taxing power occurred long ago—in 1787 between the Federalists and Antifederalists, before the Constitution was ratified. Under the Articles of Confederation, Congress had no power to tax; it could only ask the states to raise money. When the Constitutional Convention proposed to give the central government that fearsome power, the Antifederalists objected, predicting that terrible things would issue from such power. As one Antifederalist warned, “By virtue of their power of taxation, Congress may command the whole, or any part of the property of the people.” Alas, the Antifederalists lost. We will get nowhere if we pretend that this history does not exist.

Confiscatory taxation (but I repeat myself) will never be abolished through arguments that are too clever by half. When the people and their political culture (the real constitution) demand removal of this government burden, it will be removed. Therefore, if freedom is to be won, it will only be through the sort of painstaking educational activities that FEE has engaged in for 60 years.

According to Paul Greenberg, writing in the Washington Times in late January, the dreaded Antifederalists and their Articles of Confederation are making a comeback. In particular, these miscreants dare to question executive power. He writes with patriotic horror—a horror that assumes as self-evident a partisan reading of American history, a reading force-fed to most of us in public school. On that view, the Antifederalists’ return would be terrible indeed, since those gentlemen were a set of backward-looking rustics unwilling or unable to see the necessity of a strong central government to guarantee our “national” security. Their opposition to the Constitution under which we now allegedly live is all the proof needed.

In 1787 we had recently defeated the British Empire—without a strong central American government directing the struggle—but having succeeded, we are supposed to have been in greater peril than before. 

Here, as in many instances, the winners wrote the history of the conflict. The “founders” made their own propaganda for themselves as the ultimate “greatest generation.” A set of nationalist historians in New England carried this gospel into the early nineteenth century.

 The winning side even chose the parties’ labels: “Federalist” for centralizing nationalists, and the negative-sounding “Antifederalist” for defenders of genuine federalism. 

In 1983 historian Michael Lienesch noted that standard-issue historians invariably abuse the Antifederalists; fashions change, and the indictment with them, but there is always an indictment against the Antifederalists. They were “too local,” narrow of vision, afraid of the future, and unable to share the Federalists’ “continental vision.” They were “too democratic”; later, they were seen as “too undemocratic.” 

Thus Antifederalists were “men of little faith,” as historian Cecelia Kenyon put it in 1955. But now it is 2006 and the idea of having faith in this government at this time is all played out. Thomas Jefferson, out of power, would thunder about binding officeholders down with “the chains of the constitution”—and a good idea, if the Constitution were anything more than a “rope of sand.” 

Over the long haul, pretty much every dire prediction made by the Antifederalists has proven correct, although some took longer than others for their realization; and yet the Antifederalists get no credit. Among the predictions were ongoing centralization, creation of artificial monied aristocracies, long-run effacement of the states, and even a federal war made on a state or a group of states. 

The Federalists invented a structure they could dominate, pronouncing it republican, even “democratic,” since the people (one or thirteen?) were ultimately sovereign. Very comforting. 

Mr. Greenberg’s attack on the Antifederalists is a mere occasion for deploying the much-mooted Unitary Executive theory. The founders, he asserts, would be upset to learn that the president is forced to go to a quickie, drive-through court (FISA) before carrying on much-needed surveillance. What a shameful climb-down from the bold presidential assertion and usurpation “intended” by Article II. 

One need only look at the written work of recent Supreme Court nominees and the administration’s famous torture memorialists to see the grand (and central) project: sustaining the absurdist Unitary Executive theory. That doctrine credits the presidency with more unknown, “implied,” and “inherent” powers than a team of FDR, Truman, and Nixon could dream up on an especially ambitious day. And the torture memos provide an example of what all this alleged power is good for. 

Well-meaning constitutional traditionalists may argue of course that the Constitution, as written, debated, and ratified has little to do with such Bonapartist notions. When the “paper” of 1787 was under discussion, its advocates repeatedly told Americans that it secured their liberties and property through sundry interlocking protections. The president would only execute the laws passed by Congress. Congress’s acts would not be legally binding unless consistent with the Constitution. Powers were enumerated. 

These restrictions and safeguards withered away rather quickly. Congress and the Court did their part, and presidents began pretending to have found a vast treasury of power lurking, hitherto unmarked, in “The executive power”—in the phrase, that is, in the mere words that begin Article II, now revealed as mystic chords of construction, if not memory. 

In opposing the Constitution the Antifederalists were not mounting a positive defense of the Articles. The value of their critique lies precisely in the critique of the new model—advanced warnings of the many flaws in the Federalists’ product. Not the least of the flaws was the presidency itself. The office as such entails a quadrennial, circus-like disruption of American life, promotes centralization and social tinkering, and licenses irresponsible foreign policies. 

“Energy” certainly abounds in the executive, but we might have done better with a committee.

Founders as Neoconservatives 

Mr. Greenberg asks us to think of the founders as “neo-conservatives.” This is an insult that must not stand, however little one may respect the founders’ work. Mr. Greenberg is really expounding the “dare theory” of American law. He dares us to believe that, constitutionally, one man, more or less elected, can legally initiate war and do pretty much anything that pops into his head as an alleged means of defending the United States and repelling attack, even attacks that have not happened yet and probably would not ever happen until or unless a whole array of unlikely intermediate steps should fall into place. 

Thanks, but no thanks. We are not likely to believe such a proposition, in its fullness; nor need we affirm the goodness of such a system. If Greenberg persuades us that the original Constitution actually envisioned such unknowably large executive powers, we are free to conclude that it is something of a swindle and stands in need of serious retooling, revision, or replacement. 

Perhaps a convention exceeding its instructions, as in 1787, could do the trick. 

“Conservative” neo-monarchists have raised the stakes, and they may answer for any drastic conclusions drawn. Such conservatives concede the Antifederalist claim that the Constitution was already a dangerous consolidation of power. Of course we may read the Antifederalists as spelling out the tendencies that would necessarily arise under the new system, once their opponents exploited each and every constitutional ambiguity (as they ultimately did). 

Neo-federalists may say that the Constitution does not grant power to do X and Y; but once the federal government does them and the courts affirm the deed, present-day Madisonians have no argument. They may gripe about usurpations or mistakes, but since those are never reversed, what good is Mr. Madison’s creative tinkering now? The Antifederalists were far better prophets, even if they could be premature on the timing of outcomes they feared. 

The Federalists were the irrational optimists. The first Congress effectively refuted Madison’s famous argument in Federalist No. 10 about the “dilution of faction” in a larger political sphere. At this late date it is easy to resolve one’s love-hate relationship with the Federalist Papers decisively in favor of hate. As the Virginia jurist Abel P. Upshur wrote in 1840, “the Federalist is defective in some important particulars, and deficient in many more.” 

In denouncing rejection of the energetic, God-like presidency as “Antifederalism,” Greenberg has opened conceptual doors he might have left shut. Good. 

I wish there were genuine Antifederalists on the horizon today. If Democrats should really move in that direction—more power to them. If you see any Democrats embracing the Articles of Confederation, by all means welcome them aboard.