This proposal was not really all that shocking: Such a program would have been consistent enough with the advertised purpose of certain phases of American land policy from 1776 on. American governments handed out land (however acquired) for over a century to veterans, settlers, land speculators, railroads, timber corporations, mining companies, and other parties. (I’ll give you three guesses which groups made out the best). Governments did so as a source of revenue, for geostrategic reasons, to win favor with voters, or to reward a small class of typically American operators who flat-out deserved to be rich.

In a new, revolutionary, and republican society, there was of course much talk about widespread property as the bulwark of republican freedom. But the talk was so general that Federalists and Republicans could share it, while leaving themselves plenty of room in which to create a small class of owners of a disproportionate amount of the public domain. Overall—from the founding land speculators down to 1893, when the frontier allegedly ran out—American land policy resembled in both theory and practice the kind of “privatization” we see under mercantilist Republican administrations. One landmark in the process was Johnson and Graham’s Lessee v. William M’Intosh (1823). Here, Chief Justice John Marshall undertook to write a long essay on the received theory of how property previously stolen by European kings or their agents is best conveyed. As was his wont, Marshall proved entirely too much, in as clear a case of Albert Jay Nock’s “copper riveting” of narrowly focused property rights as we could want. (See my “Albert Jay Nock and Alternative History,” The Freeman, November 2008.)

Southern agrarian Andrew Lytle noted that from the settler’s point of view the whole frontier process represented an attempt to get away from would-be aristocrats and other aspiring land monopolists. Consistent republican ideologists like Thomas Skidmore and George H. Evans agitated from the 1820s into the 1840s in favor of giving homesteaders first claim on the territories. Generally speaking, other claimants prevailed, while the politics of slavery and antislavery further complicated the matter. In the bigger picture, the Homestead Act of 1862 was the exception rather than the rule, as Paul W. Gates showed in a noteworthy 1936 paper (“The Homestead Law in an Incongruous Land System,” American Historical Review).

I cannot discuss here what an ideal policy based on “mixing one’s labor” with resources might have looked like. Suffice it to say that sales of thousands and tens of thousands of acres to individuals, land companies, and corporations were not especially consistent with any genuine republican ideal. The disappearance of most of the best land in California into the hands of a half-dozen individuals in a few decades comes to mind. But large-scale buyers had mixed their money with federal land officers, and that no doubt counts for something.

Meanwhile, the judiciary—state and federal—busily remodeled the common law and shifted the burdens of industrialization onto third parties, extensively modifying the older law of nuisance. Harry Scheiber finds that “law was often, if not to say usually, mobilized to provide effective subsidies and immunities to heavily-capitalized special interests [under] either ‘instrumentalist’ or ‘formalist’ doctrine.” Even existing doctrines of “public rights” and eminent domain came to serve business interests. Finally, federal judges’ discovery in the 1880s of corporate “personhood” in the Fourteenth Amendment perfected the Federalist Party’s original mercantilist program. All these changes importantly influenced just who would benefit from the American State-system of land tenure (to use Nock’s phrase) and its attendant modes of preemption and exploitation.

Land and Independence

Many writers have seen a special relationship between landownership and personal independence. And here we hit on what is perhaps the truest insight of republican theory—one taken up by many classical liberals. Briefly, this holds that a broad “middle class” of property owners is essential to the maintenance of free societies. The point is as old as Aristotle. On the negative side, in decrying the social effects of England’s fabled land monopoly, radical liberals like Percy Bysshe Shelley, Thomas Paine, Thomas Hodgskin, and John Bright implicitly affirmed the republican axiom.

A typical nineteenth-century American “self-help” book aimed at young men did not say, “Get a job working for wages within an increasingly intricate division of labor so as to enjoy a greater variety of consumer goods.” Instead, it said, “Get yourself a competency”—a vision fraught with republican implications suitably modernized. Working for wages, if one did it at all, was a temporary stage—to be endured while learning a skill or trade and abandoned later in favor of real or potential independence. This independence, derided in our time as “illusory,” left one free (within limits) not just from state interference but also from nineteenth-century employers. And if independence is illusory in our time, it is at least partly because the political activities of well-connected elites long since removed the preconditions of independence deliberately and systematically.

One key (but not the only one) to this much-sought-after independence was access to land, a theme taken up by Catholic writers Hilaire Belloc and G. K. Chesterton in early twentieth-century England. Sociologist Robert Nisbet commented that never, after reading Belloc, did he “imagine that there could be genuine individual liberty apart from individual ownership of property.” In any case, as historian Christopher Lasch put it, “Americans took it as axiomatic that freedom had to rest on the broad distribution of property ownership.” Perhaps Americans were wrong to believe such a thing. But let us examine the matter a bit more.

This American axiom receives support from those political economists who believed that the land/labor ratio importantly determines social structure. Edward Gibbon Wakefield somewhat gave the game away in the 1830s by opposing easy access to land in Australia, lest potential wage-earners try for self-sufficiency before spending “enough” years working for others. Marx chided Wakefield for letting this “bourgeois secret” out and was in turn chided by Franz Oppenheimer, Achille Loria, and Nock for not learning the right lesson from Wakefield’s recommendations on rigging the market.

H. J. Nieboer argued (1900) that where resources are “open,” few will work for big enterprises, and the latter will (if they can) institute some form of slavery. Evsey Domar writes (1970) that one never finds “free land, free peasants, and non-working owners” together. Why? Because where political leverage allows, aspiring lords and (literal) rent-seekers will eliminate the free land, the free peasants, or both.

Colonial Policies

With this theorem in view, let us survey some colonial evidence. Enterprisers in colonies have always wanted regular supplies of cheap labor for their projects. Although there is no evidence in favor of a “right” to such a thing, these prospective employers were never discouraged. Aided by colonial administrators with the same assumptions, they gradually overcame native economic independence. Land was the key, and neither the colonizers nor the natives doubted it. No matter how hard natives worked on their holdings, colonialists decried their “idleness”—and their uncivilized failure to work for wages.

We may therefore give the overworked English Enclosures time off (for now) and look at some other cases. Consider the Japanese colonial administrator in Okinawa who complained in 1899 that the typical Okinawan held land and therefore had low expenses and few wants. For these reasons, the native saw “no need to undertake any other business, nor to save money.” Since native lands were held informally, they could not be capitalized. Such people and properties did little for the great cause of development and, shortly, the Japanese government (!) denounced Okinawans’ customary arrangements as “feudal” and set out to modernize the island. American occupation later perfected this anti-agrarian revolution. Doubtless, however, much “employment” was created in the post-World War II Okinawan service economy dominated by the U.S. military.

Turning to English colonies in the Caribbean and Africa, we find comparable phenomena. England abolished slavery in the colonies in the 1830s. (Never mind that, as historian Eric Foner comments, “Through a regressive tax system, the British working classes paid the bill for abolition.”) By this time, English policymakers had embraced Adam Smith’s view that positive incentives motivated labor better than fear of starvation or draconian punishments did. But an ocean made all the difference, Foner observes, and new peasantries made up of former slaves were “seen in London, as in the Caribbean, as a threat not simply to the economic well-being of the islands, but to civilization itself.” John Stuart Mill’s famous defense of peasant proprietors “did not extend to the blacks of the Caribbean; their desire to escape plantation labor and acquire land was perceived as incorrigible idleness.”

And so Britain’s former slave colonies put vagrancy and other laws to work and crafted taxes aimed at restricting “the freedmen’s access to land.” As Foner puts it, “Taxation has always been the state’s weapon of last resort in the effort to promote market relations within peasant societies”—that is, to force people into markets in which they were not eager to participate. In Kenya the problem was one of “dispossessing a peasantry with a preexisting stake in the soil,” but colonial legislation proved up to the task. Foner concludes that in “the Caribbean and southern and eastern Africa . . . the free market [was] conspicuous by its absence”—its workings restricted “as far as possible” in the interest of the well-off and powerful.

Historian Colin Bundy has studied the economic rise and political-economic fall of a class of independent African farmers in the Eastern Cape Colony and other parts of South Africa. Various Cape Location Acts (1869, 1876, and 1884) sought to lessen “the numbers of ‘idle squatters’ (i.e., rent-paying tenants economically active on their own behalf) on white-owned lands.” Such peasant farming “conferred . . . a degree of economic ‘independence’: an ability to withhold, if he so preferred, his labour from white landowners or other employers.” Further: “Both the farmer and the mine-owner perceived . . . the need to apply extra-economic pressures . . . to break down the peasant’s ‘independence,’ increase his wants, and to induce him to part more abundantly with his labour, but at no increased price.” In their view, “Africans had no right to continue as self-sufficient and independent farmers if this conflicted with white interests.”

Bundy observes that “Social engineering on this scale took time and effort, but the incentives were powerful.” By way of a “one man one lot” rule under the Glenn Grey Act of 1894, legislators sought to keep African farming within “certain acceptable bounds.” (Here, finally, was a use for John Locke’s famous “proviso” about leaving enough resources for others!) Evictions increased after the Anglo-Boer War (1899-1903). Rents rose (Enclosure defenders, take note), and former tenants stayed on as laborers. Tax pressure on African farmers increased. This “employers’ offensive” from 1890 to 1913 ended successfully in the South African Natives Land Act of 1913, which effectively outlawed the practices under which a particular African peasantry had shown much success.

One supposes, in standard libertarian fashion, that agricultural employment increased thereafter along with land values. But that was the whole point: to proletarianize independent peasants by leaving them no option but to work for wages for Boers and Brits on farms, in mines, and elsewhere. Whether more “employment” was good in itself seems unclear. We can, at least, impute the outcome back to specific political intentions and levers. So much for the colonies, then—and all this without even mentioning the two greatest monuments to England’s defense of free markets: Ireland and India.

Telescopic Land Reform

Colonial bureaucrats and employers saw a definite connection between small-scale landownership and independence, and resolved to cut that independence short. By now we begin to see that “the subsidy of history”—to use Kevin Carson’s useful term—has been very large indeed. A number of libertarians have understood the problem at hand in pretty much these terms. They have tended, however, to dwell on instances far away from our own shores, writing about land reform in Latin America, South Africa, Asia, and other places. In the mid-1970s Murray Rothbard, Roy Childs, and others addressed the matter.

Rothbard wrote that “free-market economists . . . go to Asia and Latin America and urge the people to adopt the free market and private property rights” while ignoring “the suppression of the genuine private property of the peasants by the exactions of quasi-feudal landlords. . . .” In this vacuum, only the local communists appeared to support “the peasants’ struggle for their property. . . .” And so libertarians “allowed themselves to become supporters of feudal landlords and land monopolists in the name of ‘private property.’”

Decades earlier, that very conservative German liberal economist Wilhelm Röpke wrote that German history would have gone better had Prussia undergone “a radical agrarian reform breaking up the great estates and putting peasant farms in their place.” He adds: “Influential Social Democratic leaders opposed the transformation of the great estates in Prussia into peasant holdings . . . as a ‘retrograde step.’” Röpke called for freeing Germany from “agrarian and industrial feudalism” and the ills “of proletarization, of concentration and overorganization, of the agglomeration of industrial power and the destruction of the individuality of labor. . . .” In his view, the typical proletarianized worker or clerk wanted “a small house of his own with a garden and a goat shed, an undisturbed family life without training courses, mass meetings, processions, and political flag days; dignity and pleasure in his work, an independent if modest existence. . . .”

Why Go Abroad?

For Enclosure-like pressures on small-holders closer to home, we need look no farther than states like Kentucky, where courts vigorously enforced the full feudal rigor of the “broad form deed,” thereby ensuring the strip mining of many a mountaineer out of productive existence down to the early 1990s. With the system so long stacked in favor of big landholders and bankers, well subsidized by history, one begins to understand the popularity of those New Deal programs that promoted individual home ownership.

Economist Michael Perelman has confirmed a direct relationship between rural labor without independent means of support and the applied politics of English classical economists. The latter preached a great gospel of “work,” mainly for others, who ought to be doing this work. Except for a narrow class of Dissenting Protestant factory owners, those most vigorously espousing this gospel were not themselves noted for doing a lot of work. Together, however, owners and economists said in effect, “Work for us, join the armed forces, or emigrate, ye doughty Angles, Saxons, Jutes, and Scots.” And emigrate they did, leaving us with an American folk wisdom in which old times in England, Scotland, and Ireland were not that great. (This folk memory may have at least as much heuristic value as latter-day econometric claims that everyone became better off in the new division of labor.)

And so we return to Henry George’s problem: How did Americans manage as a society to seize so much land, incur whatever moral guilt goes with the seizures, and then not bloody have any of it? The chief mechanism was precisely the political means to wealth that Oppenheimer and Nock analyzed. The reason Brisco County Jr.’s “Robber Barons” struck the right note is that there were such individuals. California was a laboratory case, as George well knew, of the successful primitive accumulation of land by a microscopically small class of state-made men. As with ontogeny and phylogeny, Western accumulation recapitulated Eastern accumulation. From such causes arose the famous “end” of the frontier circa 1893. But open land did not so much disappear naturally as succumb to preemption. And then, with perfect timing, the conservation movement put enormous quantities of land beyond the reach of actual settlers.

As for those Americans who currently own property, they typically own it after 20 or more years of bank payments. Is land so genuinely scarce that a bank must always be in the middle? This remains our central question. Certainly, nineteenth-century allocations played a lasting role, and later political interventions added to concentrated property ownership.

And what of the promotion of “easy” home ownership in recent years? It is a product of 1) the widespread delusion, in the wake of Lyndon Johnson’s and Richard Nixon’s inflationary financing of the Vietnam War, that real estate constitutes the ultimate inflation hedge, and 2) the specific dynamics of the expansionist fractional-reserve banking under new rules (“deregulation”) increasing moral hazards for bankers.

There is also the unhappy fact of property taxes—our chief surviving feudal due. Fail to pay those, and the state enrolls a new owner on your former property. This reduces somewhat the fact of private property in land.

Independence, Republicanism, and Liberty

Some classical liberals and libertarians downgrade personal independence. Better to participate in the going order and enjoy a wider array of comforts, they say. But socialists and corporate liberals can play the same game—and have for over a century. It seems to me that those libertarians who join in this refrain rather willfully misconstrue a very simple point: They hail the joys of the division of labor, the higher degree of civilization (that is, more stuff) to be gained from dependence, interdependence, and sundry trickles of income and utility down and up. But already in 1936, Southern agrarian John Crowe Ransom noticed a flaw in this reasoning, writing, “[I]ncome is not enough, and the distribution of income is not enough. If those blessings sufficed, we might as well come to collectivism at once; for that is probably the quickest way to get them.” If greater choice among consumer goods makes up for lost independence, then the case for socialism (or X) would be clinched, provided socialism (or X) could deliver the economic goods (where “X” stands for any political ideology offering us the same stuff/independence tradeoff.)

I doubt we are necessarily “better off” merely because of employment. We need to know more, including why particular sets of choices exist in the first place. Back in the ’60s, Selective Service used to “channel” us into the “right” occupations by threatening to draft us. Given the parameters, our choices were “free.” If it’s that easy, then we are always free, no matter the historical and institutional constraints. Similarly, “To Hell or Connaught” was a choice, and never mind that Oliver Cromwell and his army arbitrarily created this particular prisoner’s dilemma. But perhaps I have leapt from choices among goods to choices between ways of life. Why? Let us look into this.

What if proletarianization is not the ideal form of human life? What if a complex division of labor is merely useful or convenient, but not a moral imperative? What if most of us are hirelings, well paid or otherwise, and then we learn what that status amounts to? The post-Marxist socialist André Gorz writes, “Capitalism owes its political stability to the fact that, in return for the dispossession and growing constraints experienced at work, individuals enjoy the possibility of building an apparently growing sphere of individual autonomy outside of work.” Our interest here is the “autonomy” mentioned, which sounds like a near cousin of “independence.” The sentiment seems sound enough, and the partial convergence of Röpke and Gorz is eye-opening.

Now in the view of Quentin Skinner (a modern republican theorist of note), unfreedom arises both from direct, forcible coercion and from institutional arrangements that make people dependent, since the latter always contain the possibility (realized or not) of arbitrary interference and coercion. Such discussions usually center on the form of state. Utilitarian liberals like Henry Sidgwick did not care about forms. If the Sublime Porte, Tsar, or King of England leaves us substantially alone, we are “free,” and that is that. In Skinner’s view, if those worthies can on their own motion change their policy of leaving us alone, we are not free, no matter what they are doing right now. Freedom requires that we not be menaced by latent unknown powers.

Freedom in this sense is liberty—a shared civic or public good. Like many real public goods it is not provided by the state, indeed the state may be its chief enemy. Law and settled custom may provide this public good, and consumer goods—the people’s pottage—do not compensate for abandoning such an order, where it exists. Today, people often work long hours to buy some independence. In another time, they began with some independence, and then chose how hard to work. Now we see, perhaps, the difference between choices among economic goods and past choices between systems structuring our choices.

Widespread landownership long supported a kind of liberal-republican independence. Perhaps we should reexamine the nexus and ask ourselves how, in Donald Davidson’s words, we “let the freehold pass,” and whether that was really for the best.

by Kevin R. C. Gutzman

Regnery • 2007 • 258 pages • $19.95 paperback

Reviewed by J. H. Huebert

Conservative commentators often tell us that if only we would get back to the Constitution as it was understood, say, 100 years ago, all would be well with our Republic again.

The reality, however, is not so simple. It’s true that government was smaller before the New Deal, when presidents, Congress, and judges sometimes considered themselves more constrained by the Constitution than they do now.

The problem is that, apart from a few amendments, we had the same Constitution then as now. Our supposedly sacrosanct Constitution created a government that became our government. Whatever nominal restraints the Constitution contains weren’t enough to stop this from happening, as Lysander Spooner noted in “The Constitution of No Authority.”

Kevin Gutzman tries to show where things really went wrong in his new book, The Politically Incorrect Guide to the Constitution—and to his credit, he at least goes back further than the New Deal.

Gutzman shows how the Constitutional Convention had three factions, rather than the usual two that are taught in civics classes: the monarchists (who were extreme nationalists), the nationalists (a.k.a. the Federalists), and the true federalists (a.k.a. the Anti-federalists). In Gutzman’s unorthodox account, the Anti-federalists actually won at the time of ratification. Despite remaining skepticism among many Anti-federalists, the states signed on to the Constitution only because they had been assured that it would respect federalism. Since that interpretation was an implicit condition of their ratification, Gutzman says that is the correct interpretation; the Constitution cannot be read to give the federal government any more power than the states agreed to.

Whatever the states may have understood, and however “correct” their interpretation may have been, the key people in all three branches of the national government soon showed that they did not consider themselves so constrained.

An early offender against federalism was not an FDR appointee, but Chief Justice John Marshall, who among other things defined the Constitution’s “Necessary and Proper” clause as allowing Congress to use any means “convenient” to exercising its power; he began the abuse of the Commerce Clause that today allows Congress to do almost anything it likes.

Whatever the states may have declared or understood in ratifying the Constitution, its language was highly susceptible to a nationalist interpretation like Marshall’s, as the Anti-federalists pointed out. Over the years, federal courts have gone much further in that direction, putting ever more power in the hands of the federal government and the courts in particular, as Gutzman documents well. Of course that’s what the Constitution’s authors—monarchists like Hamilton and nationalists like Madison—wanted in the first place.

How could things have ended otherwise?

Gutzman doesn’t say so, but these problems will be inherent in any constitution. A legal document will always be open to multiple interpretations (some more strained than others), and when the government gets to interpret its own rules, it will of course choose an interpretation that gives itself more power in the long run. Without the people’s eternal vigilance, the nationalists will prevail.

Gutzman thinks strong legislatures, especially at the state level, are preferable to our powerful federal judiciary because voters can at least hold legislators accountable to some extent. But the Congress’s actions, with and without judges’ help, and its high reelection rate show that this option is hardly more appealing than the status quo.

Gutzman admits in his final chapter that federal courts will not soon adopt his judicial philosophy, so the whole issue is rather academic. Nonetheless, he offers much more than the usual conservative clichés and provides a history of the Constitution’s creation and ratification that is worth knowing, if only to see how the Constitution’s creators pulled the wool over so many people’s eyes—and continue to do so today.

J. H. Huebert, an award-winning attorney, is an adjunct professor of law at Ohio Northern University College of Law, a former FEE intern, a former law clerk for a judge of the U.S. Court of Appeals, and an adjunct faculty member of the Ludwig von Mises Institute.

The Pearl Harbor Myth: Rethinking the Unthinkable

by George Victor

Potomac Books • 2007 • 365 pages • $27.50 hardcover; $18.95 paperback

Reviewed by Robert Higgs

Almost from the moment the Japanese bombs began falling on the U.S. fleet at Pearl Harbor, the prime question has been, “What did President Franklin D. Roosevelt and his subordinates know about the impending attack, and when did they know it?” A series of official investigations during and immediately after the war failed to silence the president’s critics or to satisfy those who were skeptical about the official explanations. Even now, the debate continues. George Victor’s Pearl Harbor Myth is the latest substantial contribution to this controversy.

Although Victor, a retired psychologist, might seem an unlikely candidate to make an important contribution, and presents no new evidence, he adeptly exploits the relevant official reports and historical literature. He expresses his account in clear, fact-filled prose, highlighting the inconsistencies in various testimonies.

He finds that the Roosevelt administration deliberately provoked the attack, knew it was coming, and did not attempt to stop it. Yet Victor describes himself as an admirer of Roosevelt and declares that “moral and legal judgments are outside the purpose here.” If the president and his lieutenants conspired to bring the United States into the war in Europe through the Pacific “back door,” he concludes, they did only what all governments sometimes do—conspire, blame scapegoats, and then cover up their conspiracies by destroying evidence, coercing witnesses, and lying—and they did it for an excellent reason, to save the world from conquest by Hitler.

The government conducted this Machiavellian maneuvering because the great majority of the populace opposed entry into the war unless the United States were attacked. Hence Roosevelt, who ardently desired (and worked relentlessly) to take the country into the war, needed to incite such an attack to unify the people in support of U.S. entry. “Establishing a record in which the enemy fired the first shot was a theme that ran through Roosevelt’s tactics.” Despite hostile but clandestine U.S. naval actions against German ships and submarines in the North Atlantic in 1941, the Germans refused to take the bait.

On the other side of the world, more than two years of U.S. economic warfare against Japan had placed the Japanese economy in a tightening stranglehold. War was almost inevitable, yet for Roosevelt’s political purposes it remained imperative “that Japan commit the first overt [military] act,” as a dispatch from Washington cautioned General Walter Short, the Army commander in Hawaii. Short and the Navy commander, Admiral Husband Kimmel, were set up as the fall guys to be blamed for lack of preparation when the U.S. forces at Pearl Harbor were caught “by surprise” in a “sneak attack”—such surprise and sneakiness being key elements of the enduring myth that Victor aims to explode.

As Secretary of War Henry L. Stimson wrote two weeks before the Japanese attack, “the question was how we should maneuver them into the position of firing the first shot without allowing too much danger to ourselves.” The attack “was expected to get Congress to declare war on Japan. The crucial needs were to save the Soviet Union [from a Japanese invasion] and have Japan attack in circumstances that would move Congress to declare war on Germany.”

Why didn’t the President instead make a frank, straightforward request that Congress declare war, explaining why he considered U.S. entry into the war to be desirable? Because he thought that approach would fail.

On December 2, 1941, Roosevelt “told a subordinate that he expected to be at war with Japan within a few days. On December 4 [Secretary of the Navy Frank] Knox told a subordinate the same [thing].” Yet Short and Kimmel were not alerted to the attack that high officials in Washington expected to occur shortly. Mid-level army and navy officers had urgently recommended that the commanders in Hawaii be warned, but their superiors had rejected those pleas.

After news of the attack reached Washington, Roosevelt convened his War Council. According to Harry Hopkins, “[T]he conference met in not too tense an atmosphere because . . . all of us believed that . . . the enemy was Hitler and that he could never be defeated without force of arms; that sooner or later we were bound to be in the war and that Japan had given us an opportunity.”

Although Victor’s apology for the Roosevelt administration’s aggressive, devious actions during the years preceding the attack on Pearl Harbor strikes me as highly problematical, I recommend The Pearl Harbor Myth as a thorough, clearly written, and generally even-handed account of the events that led to U.S. engagement in World War II. For the typical American, still clinging to the myth, the book will be a revelation.

Robert Higgs is Senior Fellow in Political Economy for the Independent Institute (www.independent.org), editor of The Independent Review, and author of Depression, War, and Cold War (Independent Institute/Oxford University Press).

Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case

by Stuart Taylor Jr. and KC Johnson

Thomas Dunne Books • 2007 • 405 pages • $26.95

Reviewed by George C. Leef

In an infamous 1931 case, several black youths were arrested in Alabama and charged with raping two white women. Those young men—eventually called the Scottsboro Boys—could have been executed for the crime. Newspapers throughout the south wrote about the case as if the defendants’ innocence was inconceivable. It perfectly fit the reigning stereotypes—white women were virtuous and black men were vicious sexual predators.

As it turned out, the accusers had lied. The women were sure they could play on the prejudices of law-enforcement officials to cover up their own indiscretions, so they made up a story. Good work by dedicated defense attorneys ripped apart the prosecution’s case and the defendants were freed.

The Duke lacrosse case of 2006–07 mirrored the Scottsboro incident. A black woman, Crystal Mangum, hired as a stripper (almost always referred to in the media as an “exotic dancer”) at a party thrown by the captains of the Duke University lacrosse team, showed up so drunk that she passed out after just a few minutes. Later, to avoid possible legal consequences from her drunkenness—she had two young children—she told a nurse that she had been raped at the party. The nurse, eager to credit the story, said that some of Crystal’s injuries were consistent with rape.

After that, the case grew like a wildly malignant cancer. A police official with an animosity toward Duke students got his hooks into the case and drove it relentlessly, but never with any interest in finding out what actually occurred. Then the district attorney, Mike Nifong, a white man who desperately wanted to win favor with the predominantly black electorate in Durham, seized on the case as his salvation. He never bothered to investigate the accuser’s veracity—she told several different and inconsistent versions of the alleged crime—but instead took to calling her “my victim.” Flagrantly violating prosecutorial rules, he rushed to indict three Duke lacrosse players.

The media had a field day with the case. Story after story in papers ranging from the New York Times to the Durham Herald-Sun excoriated the accused players with ideologically tendentious pieces that presumed not just guilt but racism. Yet that was nothing compared to the academic left on campus—Duke’s and many others. To leftist professors, the case seemed to be the perfect validation of their worldview that America’s evils stem from oppression on the basis of race, gender, and class. Their speeches and articles seethed with righteous indignation over the alleged crime.

Until Proven Innocent is a thorough recounting of the case by veteran political columnist Stuart Taylor and Brooklyn College history professor KC (Robert) Johnson. In exasperating detail we learn about the shoddy police work and abuses of prosecutorial power by DA Nifong. By the time Taylor and Johnson reach the climax of the story—Nifong’s disbarment and removal from office—readers will yearn for condign justice to be meted out to the many villains of the piece.

Alas, there was no justice for the Duke officials who went along with the lynch mob, nor for the professors who eagerly pronounced guilt and demanded punishment of students who had committed no crime at all. The authors make it clear that in the minds of many of those academics, the concept of guilt has little to do with individual conduct. White male students from well-to-do families are necessarily complicit in the whole oppressive, exploitative class structure of America, so punishing some of them is good, whether or not they actually committed any crime.

One big lesson from the book is how poorly our justice system works. Police and prosecutors often have their own agendas and will obliterate the truth if it suits them. Perhaps the fact that the vicious Nifong has been disbarred and branded as a criminal himself for lying in court will cause prosecutors to think twice before trying to railroad defendants into prison just to make themselves look good. But maybe they’ll think it was just a fluke that he got caught.

The other big lesson is that many university professors who incessantly proclaim their dedication to “social justice” don’t care a whit about true justice. Even after the case unraveled as a hoax, many of them continued to defend their previous statements, claiming that “the narrative” about how dominant classes oppress the subservient classes must remain vital.

What the case demonstrates, however, is that injustice doesn’t fall along the lines of race, class, and gender. It falls along different lines—those who wield coercive power and those who don’t. Thus the book not only tells a crucial story, but also supports the libertarian critique of modern society.

George Leef is book review editor of The Freeman.

Dry Manhattan: Prohibition in New York City

by Michael A. Lerner

Harvard University Press • 2007 • 351 pages • $28.95

Reviewed by Robert Batemarco

Give the Prohibitionists this much credit: they didn’t just preach to the choir. They brought their battle to its most formidable opponent—New York City. Unfortunately, their cause was misguided, providing a textbook’s worth of examples of the law of unintended consequences. In his book Dry Manhattan, Michael Lerner (associate dean at Bard High School Early College in New York City) not only portrays the impact of Prohibition on the Big Apple in fascinating detail, but also offers key insights into the political process that both made Prohibition possible and led to its demise.

While people with some knowledge of history are aware that Prohibition created opportunities for corruption, filled the coffers of organized crime, undermined respect for the law, and made drinking more dangerous but no less common, Lerner offers specifics that lend greater immediacy to those things than mere statistics can. He writes, for instance, “[M]ore new pharmacies opened in New York between 1920 and 1923 than in the ten previous years combined, undoubtedly because pharmacies, which could legally dispense prescription whiskey, offered a perfect front for bootleggers.”

The part of the book I found most enlightening was the confluence of political factors that enabled Prohibition to pass. Lerner highlights the role of the Anti-Saloon League in assembling the coalition that obtained ratification of the Eighteenth Amendment. In doing so, he makes clear that much more was at stake than simply eradicating the social consequences of alcohol abuse. The Prohibitionist movement was driven by a nativist desire to remake urban and ethnic America in the image of the Anglo-Saxon heartland, combined with a Progressive penchant for social engineering. Saloons made an obvious target. The connection between saloons and corrupt politics had given them a bad name. For instance, in New York City, saloons played a central role in Tammany Hall’s graft and vote-buying and helped launch many political careers. However, in urban immigrant communities the saloon was much more, serving a multiplicity of social functions, including providing a bridge “between the old world and the new, places where newly arrived immigrants could learn from their predecessors and begin the often painful process of adapting to a new homeland.” (Many of those functions were soon to be usurped by the welfare state.)

But the factor that served as a tipping point ensuring ratification was America’s entry into World War I. In the shadow of wartime hysteria, Prohibitionists demonized brewers and distillers for their predominantly German ancestry, then played the patriotism card to muzzle dissent. As passage of alcohol prohibition started to assume an air of inevitability, owners of motion-picture theaters and producers of such putative liquor substitutes as tea, soft drinks, and ice cream opportunistically jumped on the bandwagon, hoping to get their share of dollars that had been spent on alcohol. A bit of deceit also helped put Prohibition over the top. It was never made clear that beer and wine were to be prohibited as well as hard liquor. Once Prohibition took effect, its selective enforcement against Jews, Catholics, and ethnic minorities furnished strong evidence that “the main objective of the dry lobby was to police the habits of the poor, the foreign-born, and the working class.”

Prohibition had its economic impact, too, and the author displays a better grasp of economics than most historians. He does not take at face value the allegations of either “wets” or “drys” that every increase or decrease in employment and inflation was the result of the Volstead Act, which implemented the Eighteenth Amendment. Rather, he sees through their fallacious reasoning and understands that other events, such as the Federal Reserve’s credit creation, had a much stronger impact on macroeconomic variables.

The book concludes with the repeal of Prohibition. The heroine of Lerner’s account in bringing about repeal is Pauline Sabin, a one-time Prohibition supporter who reached beyond her own upper-crust background to assemble a winning coalition for repeal. Lerner paints Franklin Roosevelt less heroically, showing how he waffled on this issue until the eve of his nomination.

In all, this is a well-written narrative of a disturbing episode in our history, filled with local color that makes it especially interesting to New Yorkers. Despite being clearly in the anti-Prohibition camp, Lerner covers both sides in a fair-minded way. Yet there is something bittersweet in his conclusion that “New Yorkers who opposed Prohibition rejected the idea that the state had a right to dictate the private conduct of its citizens.” These same New Yorkers would embrace the state’s “right” to control rents for apartments and prevent citizens from owning guns.

Robert Batemarco is a vice president of a marketing research firm in New York City.

—John Taylor of Caroline, 1814

John Taylor of Caroline has a secure place in the history of American political thought. Charles Beard’s historical writing did much to revive Taylor’s reputation in the early twentieth century. Eugene T. Mudge saw Taylor as a “prophet” of sectional struggle, while English historian M. J. C. Vile saw him as “in some ways the most impressive political theorist that America has produced.” New Left historian William Appleman Williams thought Taylor “made the best case against empire as a way of life.”

Other historians are dismissive. Louis Hartz chided Taylor for failing to become the American Disraeli, and Richard Hofstadter called him “a provincial windbag.” For Hof-stadter, Taylor’s Jeffersonian ideas were “negative” and “laissez faire,” ending as mere conservatism in the hands of “men like William Graham Sumner.” Manning Dauer saw Taylor as—paradoxically—the father of both Southern Agrarians and “states’ rights industrialists.”

Despite the attention given Taylor over the years, he remains (in my view) somewhat neglected, relative to his actual merits.

Raised in the home of his uncle Edmund Pendleton, John Taylor (1753–1824) attended The College of William and Mary, studied law, served as a major in the Continental Army, and became a successful lawyer and planter, owning several plantations and 150 slaves. He preferred his rural life, but entered politics to defend republican values, serving in the Virginia legislature (1779–81, 1783–85, 1796–1800) and filling out unexpired terms in the U.S. Senate (1793–1794, 1803, 1822–24). Taylor was clearly no archaic-radical republican like Jean-Jacques Rousseau. He did not find freedom in political participation as such, but he would step forward in a crisis, as his sponsorship of the Virginia Resolutions, damning the Alien and Sedition Acts, shows.

Taylor began as an “Anti-federalist.” Once the Constitution won ratification, he meant to hold the victors to the assurances they gave while promoting it. Generally, Taylor’s books (1814, 1818, 1822, 1823) arose from immediate political questions; they included attacks on federal economic policies and reasoned polemics against the centralizing decisions of John Marshall’s Supreme Court. A book by Taylor levels much learning and colorful language against pressing issues, in the manner of Jeremiah.

There are some awkward moments in Taylor’s literary style, as Adams, Jefferson, and John Randolph all noted, but there are also interesting compression and apt expression. Taylor was a secular preacher. Like William Faulkner, he is sometimes better understood when read aloud. He is also a stepfather of semantics and semiotics, as his running critique of “artificial phraseology,” or counterfeit language, shows. He was not an especially successful politician. Taylor served the public better as a critic.

Here I must at least mention the Forty-Years War between historians of the Republican School and the Liberal-Lockean School over early American ideology. For J. G. A. Pocock, classical republican themes—court versus country, the mixed constitution, balanced social orders, “virtuous” agrarian landowners—dominated revolutionary thinking. The Lockeans have Americans abandoning those in favor of abstract individualism and natural rights. But the two political “languages” co-existed throughout the Revolutionary era. What matters is their exact “mix.” Taylor, for one, employs republican language within a liberal framework.

Beginnings of Centralization

Not long after independence, centralizing Federalists replaced the Articles of Confederation with a constitution (1788) aimed at creating a mercantilist political economy. Their opponents coalesced as “Republicans,” broadly continuing the Anti-federalist cause. Federalist-Republican debates over the National Bank, excises, public debt, standing army, and tariffs echoed English debates after 1688.

Perhaps the worst tragedy that can befall an ideology is to have a political party professing allegiance to it come to power. (Think of “conservatism” today.) So it partly was after 1800, with Jeffersonian republicanism in power. Taylor defended Jefferson’s measures into 1804, but gradually drifted into the “Quid” opposition movement within Republican ranks. He railed against the administration’s half-Federalist policies. Along with John Randolph of Roanoke and a few other Republicans, he opposed the War of 1812—his own party’s war—as a “metaphysical war.” He rightly feared its potential for state-building.

For Taylor, the laws of nature suggested political equality instead of the fixed social orders found in John Adams’ archaic republicanism. Popular sovereignty “flows out of each man’s right to govern himself.” Similarly, Taylor traces the right of free speech directly to the right of self-government, which presupposes open discussion.

On solidly liberal ground, Taylor sees human nature as “compounded of good and evil qualities.” Men should frame governments “with a view to the preservation of the good and the control of the evil.” Self-interest was the only real constant in human affairs, and bad structural incentives might make governments “vicious.” Suitable structures would “secure the fidelity of nations to themselves,” even if the people were individually “vicious.” Here Taylor broke decisively with archaic-republican “virtue,” mixed constitutions, and social balance. Americans had chosen to divide rather than “balance” power, and in so many ways—vertically (federally) and horizontally (departmentally)—as to prevent serious abuse.

Protecting men’s lives, liberty, and rightful property was the purpose of government.

The goal of “political law” (the Constitution) was control over all representatives and agents. Taylor hails election, divisions of power, and an armed people (militia) as among the means to republican liberty. “Oaths of agents,” he observes, “are prescribed to enforce, not to destroy, the duties of agency.” Taylor’s overall conception thus far surpasses any tame notions of “checks and balances” or “separation of powers.”

Taylor frowned on notions of absolute sovereignty. Where he does use the word, he is normally referring to self-government, which results from men’s living together in a community. He does not explain community as arising by conventional social contract; indeed, he tends to reject his contemporaries’ half-digested Lockeanism, thereby postponing any final surrender of natural rights. (Here he comes close to Thomas Paine.)

There was, however, an actual contract—the Constitution—creating a limited union with a common agent subjected to structural, procedural, and substantive restraints on its power. This contract was between the peoples of the several states, not between the members of a single, aggregate American people as individuals. The constitutional agreement “derives its force, not from the consent of a majority of the states, but from the separate consent of each” (italics supplied).

Taylor denied the common assertion that the people, “having thought and spoken once, had lost the right of thinking and speaking forever.” If so, “its first will, must be its last will”—something Taylor found absurd. If, for example, the states should call a convention and approve a constitutional amendment previously blocked in the Senate, “any one state may refuse to concur in [it], because each state will resume its original right to refuse or consent, as being independent of each other in negociating the terms of a new union” (italics supplied). Implicit here is renegotiation of the agreement—and even secession in an extreme case. Any other conclusion conflicted with outstanding historical facts, as Taylor saw them.

Taylor observes that no governments—federal or state—could, in their status as subordinate agents, dissolve the union on their own. (The constituent peoples could.) And Taylor was so far from being a positive “disunionist” that, in describing the geographical advantages of the United States, he attributed Americans’ safety to their maintaining a union of some kind. But he was not an unconditional unionist.

Taylor always tried to bracket sovereignty. He supposed the states to possess full concurrent jurisdiction with the federal government, except where one or the other clearly had an exclusive delegation of power. He denied that the Supreme Court’s reasoning necessarily bound the state courts; decisions applied at most between the parties to a case. Taylor thought an occasional inconsistency of outcome preferable to letting the Supreme Court remodel all of American law. To concede final interpretive power to the Court would transfer sovereignty to the general government, as the Court imported consolidation into the Constitution. Finally, the Court would assert “an immoveable power of construction” over the Constitution, over the other branches, and over the people.

Republicanism and Nationalism

Taylor’s states-rights republicanism necessarily collided with the intermittently nationalist views of James Madison. Taylor was trying to unravel the knots Madison tied while confusing different audiences and, finally, himself. Taylor questioned Madison’s claim in Federalist 10 that a republic must be geographically extensive—and even expand farther—to prevent “factious” instability. Taylor viewed expansion as unwise, where it might undermine liberty through war, armies, debt, and taxes. And he had little awe of the Federalist Papers: “The English writers . . . contain whatever is to be found in the Federalist; but all their theories sunk, as soon as they were promulgated; in a vortex of corruption. . . .”

Republican adoptions of Federalist policies were many and galling. Even worse, Federalists remained entrenched as federal judges and appointments by Republican presidents had not changed this. Taylor’s Construction Construed and Constitutions Vindicated (1820) targeted John Marshall’s decision in McCulloch v. Maryland (1819) with its mighty assertions of federal power. “The unknown powers of sovereignty and supremacy may be relished,” Taylor writes, “because they tickle the mind with hopes and fears.” Further, “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by Kings.” Later, “aristocracies and republicks. . . claimed the spoil.”

Sovereignty being “neither fiduciary nor capable of limitation,” Taylor wished to neutralize the concept. Americans had tried “to eradicate it by establishing governments invested with specified and limited powers,” so that “ungranted rights remain also with the grantors . . . the people.” (Alas, the principle that rights or powers “not granted” are not granted failed to impress either Marshall or Harvard Law School.)

Marshall’s decision turned allegedly “necessary and proper” means into actual unenumerated powers. Taylor recalled the 1760s, when Parliament asserted “it would be absurd to allow powers, and with-hold any means necessary or proper.” The colonies found it “more absurd to limit powers, and yet concede unlimited means for their execution.” The principle made the Constitution’s list of powers superfluous. Following Marshall, “[E]nds may be made to beget means” and “means . . . made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people.” Roads being “necessary in war,” Congress could “legislate locally concerning roads.” Congressional power over horses—and everything else—would soon follow.

Taylor believed that Americans had never knowingly adopted that European conception of absolute, unitary sovereignty, which licensed Marshall’s centralizing deductions. Americans supposed their governments to be their agents, not their rulers. Lately, however, American legislatures—state and federal—were aspiring to be “British parliaments,” and if the trend held, one must conclude that in American government, “no experiment at all has been made.”

Marshall made much of the supremacy, superiority, and so on of Congress in its proper sphere of action. Taylor answers, “If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people.” The problem was not spheres, but sovereignty in them. Powers might exist, certainly, but granted by principals to agents. No one had “inherent” powers.

Sphere-Sovereignty Dogma

Taylor preferred the “occasional collisions” arising from concurrent jurisdictions. Instead of creating various institutions, each supreme in a sphere, our system featured “co-ordinate political departments . . . as checks upon each other, only invested with defined and limited powers, and subjected to the . . . controul of the people.” The Court’s sphere-sovereignty dogma overthrew this distribution of powers, because a “power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions.” In America we “have preferred checks and collisions, to a dictatorship of one department.” Congress and the states might pass laws, each one constitutional, which “impede each other. . . . For this clashing the constitution makes no provision.” (Taylor’s view thus differs greatly from the highly artificial “separation of powers” espoused by “conservative” unitary-executive theorists working for the Bush administration.)

Having asserted Congress’s right to “remove all obstacles to its action,” the Court pretended to “hook every implied [power], to some delegated power” as a means. (Even today, a massive regulatory state subsists under the Commerce Clause, while global military enterprises masquerade as simple “defense.”) Taylor did not buy the argument.

Deductions from the international lawyers’ sovereignty-construct intruded into war and peace. Our system, Taylor writes, provided the necessary “powers of making war and peace . . . not as emanations from . . . sovereignty . . . but as delegated powers conferred by the social sovereignty, or natural right of self-government.” Otherwise, “the federal government, as having no sovereignty,” could not have declared war. That international law and lawyers “contemplate the powers of declaring war and making peace, as residing”—inherently—“in an executive department” meant nothing to us; the American system divided the powers and “does not intrust the president with either.”

So the question was “whether these laws of nations or our constitutions have delegated powers to our political departments.” If the former, the game was up, Marshall could go on deducing, and power would not—and could not—be limited. Interestingly, Taylor’s line of attack on these questions supplied materials for refuting United States v. Curtiss-Wright (1936) 114 years before the Supreme Court issued those latter-day deductions about “inherent” executive powers over foreign affairs and war.

Even with all these new, constructively discovered means and powers about, Americans remained complacent, safe in the knowledge that their officials were elective and responsible. For Taylor, representation and elections did not, by themselves, provide security against abuses of power. If elected officials managed to escape their bounds, then we would once again see that “no experiment . . . has been made.” As a mere slogan, “popular sovereignty” meant nothing to Taylor, and he foresaw the probable failure of republicanism if Americans adopted European sovereignty as its legal basis. Indeed, “a sovereign power over labour or property is less oppressive in the hands of an absolute monarch, than in those of a representative legislature” and “the error of trusting republican governments with this tyrannical power, has probably caused their premature deaths, because they are most likely to push it to excess.”

A government outfitted with “the complete panoply of fleets, armies, banks, funding systems, pensions, bounties, corporations, exclusive privileges; and in short, possessing the absolute power to distribute property,” was effectively “unrestrained” and tyrannical—and therefore not a republic in Taylor’s meaning. (Taylor has much to say about power distributing property, but I intend to treat that topic in another place.)

As party leader, aggregator, aider and abettor of factions, would-be war hero, and more, the president of the United States, whoever he might be, spearheaded the political evolution deplored by Taylor. As Taylor writes, the American executive was so constructed as “to excite evil moral qualities . . . propelling us toward force and fraud.” His exclusive control of military patronage, and its extension during war, inclined the president to initiate war. And now we understand Taylor’s commitment to a genuine, revitalized militia system; he wanted it for practical, political—even liberal—reasons, and not out of an attachment to Greek, Roman, or Renaissance Italian republicanism.

Taylor can find no “reason why war, peace, appointments to office, or the dispensation of publick money, should have been counted in the catalogue of the [executive], except for the efficacy of these powers in one man for begetting tyranny.” (He has elsewhere denied real textual, constitutional authority for exclusive presidential power over war and peace.)

More Power to the President

The treaty and appointment powers add to the president’s political weaponry; and to his already excessive military power “is subjoined a mass of civil power,” as well as patronage. Election “procures a confidence which has no foundation.”

The treaty power has long been prized and feared as a source of new, unknowable federal powers. As late as the mid-1950s, the Old Right movement sought to define and curtail that power through the Bricker Amendment. It took all the Eisenhower administration’s leverage to defeat the proposal in Congress. Under the Constitution, properly understood, Taylor finds no magic in the words making treaties part of the supreme law of the land. “On the contrary,” he notes, “the laws were to be made in pursuance of the constitution, and the treaties, under the authority of the United States.” And now he springs his trap: “The United States have no authority, except that which is given by the constitution” (italics supplied).

It followed that treaties could not alter or overthrow the Constitution. He gives an example: “Suppose the treaty-making power should stipulate with England to declare war against France; would that deprive congress of the right of preserving peace, with which it is invested by the constitution?” Presumably not, unless we must once more endure theories of inherency and sovereignty under international juridical deductivism.

James Madison, “father of the Constitution,” thought an extensive and expanding union would “dilute faction” and preserve liberty under an American mercantilism. Tying liberty to territorial expansion, Madison imposed an imperial logic on the Constitution he helped create. Taylor, spying the state-building possibilities of that program, came to oppose it. “A protector is unexceptionally a master,” he noted. Almost two centuries later, under another “Republican” regime betraying principles it never had, we may wonder who was the better prophet over all—Madison or Taylor?

by Max Boot

Basic Books • 2002 • 448 pages • $30.00 hardcover; $16.00 paperback

Reviewed by Ivan Eland

Max Boot provides a thorough and relatively candid history of the U.S. government’s involvement in small wars. The section of the book on Vietnam is particularly honest and insightful—unlike many conservatives, Boot blames the U.S. military for at least part of the fiasco, rather than heaping all of the responsibility on the Johnson administration. The history is well written and worth the read.

Despite the 14 chapters of history on America’s minor wars and conflicts, the real purpose of the book lies in its 15th chapter. Boot, a senior fellow at the Council on Foreign Relations, maintains that contrary to conventional wisdom, the United States has never been isolationist—by which he means that it has engaged in small military forays in a wide range of countries throughout its history. He uses that history to justify the current Pax Americana and the country’s assuming the role of the world’s policeman.

Boot notes that throughout its history the United States has engaged in wars that involved no vital national interest, had no significant public support, and began with no declaration of war. By attacking the “conventional wisdom”—essentially a straw man—the author is really challenging those who prefer a more restrained U.S. approach around the world. They do not deny that the U.S. government has failed to uphold non-interventionism—both in the distant and more recent past. But they do plead for a return to the intent of the founders of the American nation with regard to military intervention. That view was best summed up by Thomas Jefferson’s maxim: “peace, commerce, and honest friendship with all nations—entangling alliances with none.”

Boot argues that the original intent of the Constitution—that the president alone should not be able to take the country into war without approval by Congress—was undermined early in the republic’s history during the wars against the Barbary states. Yet Boot’s text indicates that Jefferson sent the U.S. fleet to the Mediterranean with a defensive mission vital to U.S. security—the U.S. Navy was to defend American merchant shipping and enforce treaty obligations. When the Pasha of Tripoli declared war against the United States, Congress authorized military action against that state. Later, Congress declared war against the state of Algiers.

Boot uses his compiled history to argue that the United States has always fought the “savage wars of peace” and should therefore not lack the confidence to do so in the future to “enlarge the ‘empire of liberty.’” The author is a member of the club of neoconservatives who proudly use the term American “empire.” Yet the “humanitarian interventions” that Boot advocates sound strikingly similar to Bill Clinton’s policy of “engagement and enlargement,” which had a goal of enlarging the community of free-market democracies. The main difference is that while the Clinton administration protested that it was not acting as the world’s policeman, Boot and other advocates of American empire fully embrace the globocop role for the United States.

Boot concedes that “the American track record of imposing liberal democratic regimes is mixed” and less successful in the Third World. He also concedes that “short-term (or even medium-term) occupations . . . are unlikely to fundamentally alter the nature of a society.” So he implicitly admits that spreading democracy and free markets at gunpoint is ineffective. Perhaps the United States should have more confidence that its system will prevail worldwide and act instead as a beacon for peoples shaking off tyranny and freely choosing liberty.

In the wake of September 11 the U.S. government should consider the possibility that its policy of military intervention is out of date and much more costly than in the past. With the demise of the Soviet Union and the rise of catastrophic terrorism, the benefits of intervention have declined and the costs of angering or threatening militant terrorist groups or rogue nations with weapons of mass destruction have skyrocketed.

The empires of old tried to exploit their colonies for resources and sheltered markets and taxed them to the benefit of the imperial government. In contrast, the American “neo-empire” provides costly security for most regions of the world, but cannot even get its closest allies to fully open their markets to American trade. Furthermore, every military intervention without congressional authorization or a declaration of war undermines the U.S. system of limited, constitutional government.

In advocating overseas meddling, Boot joins other armchair generals who are willing to send Americans to die needlessly in obscure parts of the globe, to satisfy their dreams of “empire.” It is a shame that Boot’s promotion of that idea mars an otherwise intelligent and useful history.

Ivan Eland is a senior fellow and director of the Center for War, Crises, and Liberty at the Independent Institute.

American Law in the 20th Century

by Lawrence M. Friedman

Yale University Press • 2002 • 736 pages • $35.00

Reviewed by Ian Drake

Writing the history of a country’s laws, especially those of a nation as vast and varied as the United States, is a monumental task. It is even more difficult to encapsulate it in a single volume. Yet that is largely, if idiosyncratically, what Professor Lawrence Friedman of Stanford Law School has done.

The scope is grand by necessity because American government and law are immense at all levels. As I write this review and glance around my room, each thing I see has laws regulating its creation, existence, or disposal—most of which were passed in the twentieth century. For instance, the parts for the computer I’m staring at were shipped under international commercial treaties (under United Nations auspices or simply between the United States and the shipping country). Certain books on my bookshelf are available thanks to the Supreme Court’s interpretation of the First Amendment. And finally, the dog sitting under my chair has been honored with a series of local ordinances that control how he is walked and immunized. Law is everywhere in America and, as Friedman notes, the history of almost any part of America in the twentieth century must make reference to the law.

His book can be divided into three large topics: the growth of American government at the federal, state, and local levels (and the resultant permeation of law into almost all aspects of life); the role of the state and federal courts in shaping statutory, common, and constitutional law; and “legal culture”—the lawyers, judges, officials, and bureaucrats, and their philosophies.

Friedman dutifully chronicles the growth of the federal government, especially noting the multitude of agencies and regulations. The story is peppered with obscure facts and anecdotes regarding the development of various agencies: for instance, the attorney general (Charles Bonaparte) who organized what became the FBI was a relative of Napoleon. Friedman accurately characterizes the federal government that evolved as a “Leviathan,” with a plethora of administrative agencies inhabiting a “subterranean world” of their own. But readers might doubt his assessment of the New Deal as “profoundly conservative.” (Friedman contends that the Works Project Administration and other programs were conservative because they sought to preserve dignity and maintain skills, rather than encourage idleness.)

As for the courts’ role in forming our contemporary world, the Supreme Court applied the Bill of Rights (originally applicable only to Congress) to all levels of government and created new constitutional rights (such as Miranda rights and the right to “privacy,” especially in the case of abortion). Throughout this section, Friedman’s “liberal” and statist sentiments are clear.

Finally, Friedman gives the lay reader valuable insights into what is best referred to as legal culture. In 1900 there were mostly small firms and lots of general practitioners. By 2000, huge law firms and legal specialization had become the norm, with many lawyers searching constantly for class-action suits to bring. The author also details legal theories that cropped up during the century—from formalism (adherence to deductive, universal rules) to critical legal studies (all law is another form of “power politics”).

Friedman does not shy away from making moral and political assessments, and advocates of limiting government power will surely disagree with many of his opinions. For example, he contends that the ever-expanding state was inevitable because a Leviathan was a necessary result of a large industrial society. Undoubtedly, railroads, airplanes, and automobiles required certain new rules (or new applications of old rules), but the New Deal agencies and Great Society programs were not inevitable. They were creations born not out of necessity, but rather out of specific ideologies, and preserved to appease various constituencies. After all, the Interstate Commerce Commission died and no one cared. In certain respects, Friedman has it exactly backwards: Social change does not always require new law, but sometimes new laws lead to changes in society—changes that are usually not for the better.

Readers of this impressive work will come away better informed about American legal history in the twentieth century, but they should bear in mind that Professor Friedman’s philosophy is hospitable toward the massive expansion of the state power that so drastically reduced individual liberty during that century.

Ian Drake is a lawyer in Greensboro, North Carolina.

Mad in America: Bad Science, Bad Medicine, and the Enduring Mistreatment of the Mentally Ill

by Robert Whitaker

Perseus Publishing • 2002 • 352 pages • $27.00 hardcover; $17.50 paperback

Reviewed by Sheldon Richman

Any snapshot can be misleading because it is necessarily out of context. Similarly, the flattering self-descriptions from the various headquarters of the mental-health industry can mislead anyone who is unfamiliar with the history of psychiatry. The superficial observer may be forgiven for believing that the industry is dedicated to healing.

That impression, however, is easily overcome with some historical knowledge, and medical journalist Robert Whitaker’s Mad in America, though hardly the first in this genre, lends a helping hand in that regard.

As Whitaker demonstrates, the history of psychiatry is a story not of diagnosis and treatment, but of the brutal control and torture of undesirables—called madmen or the insane or schizophrenics—by doctors deputized by the state. From the start, psychiatry treated its captives like beasts and laboratory rats.

The descriptions of “treatments”—which in most cases were not seen as such by those who inflicted them, but rather as methods of restraint and punishment—might make readers queasy. For example: “The Bath of Surprise became a staple of many asylums [in the early nineteenth century]: The lunatic, often while being led blindfolded across the room, would suddenly be dropped through a trapdoor into a tub of cold water—the unexpected plunge hopefully inducing such terror that the patient’s senses might be dramatically restored.” As this example indicates, a medical rationalization always accompanied the abuse.

If one thinks times have changed, Whitaker catalogs its successors up to the present, including insulin coma therapy, electroshock, lobotomy, and drugs that induce the symptoms of Parkinson’s disease. It reads like a description of a chamber of horrors. Nevertheless, each new “therapy” was hailed as a beneficent medical breakthrough that would return the insane to normal life. The inventor of lobotomy, Egas Moniz of Portugal, won the Nobel Prize for medicine in 1949. But invariably the optimism fizzled, a new therapy came along, and the old one was abandoned and even condemned. The pattern continues to this day.

Two points need to be stressed: (1) Doctors were not candid with their patients or the public about the risks and pain associated with these procedures, and (2) the patient’s objections were irrelevant. For instance, “[T]he prevailing opinion among America’s leading electroshock doctors in the 1940s and 1950s was that in the confines of mental hospitals, they had the right to administer such treatments without the patient’s consent, or even over the patient’s screaming protests,” Whitaker writes. This was also the opinion of the legal establishment and the public. The Bill of Rights simply did not exist for those branded insane. It still does not.

Whitaker’s chapters on the vogue, toxic antipsychotic drugs are eye-opening. First developed to control rambunctious (involuntary) hospital inmates, the drugs were transformed through a public-relations campaign into cures for schizophrenia when tight government budgets made deinstitutionalization fashionable. The documented corrupt collusion between the government-licensed medical profession and prescription-drug industry is a shameful episode in American history. Unfortunately, Whitaker doesn’t fully appreciate how the Food and Drug Administration helped make this fraud possible.

Four problems mar this book. First, Whitaker fails to challenge involuntary psychiatric intervention in itself. He overlooks coercion when discussing the style of treatment he favors. This destroys his claim to being a champion of the victims of psychiatric injustice, for it is not the form of assault but assault per se that is immoral. In short, he is a reformer rather than an abolitionist. But no reform can be acceptable within a compulsory relationship, in which psychiatrists are expected to represent the frequently conflicting interests of patients, families, and society at large.

Second, he is silent about the insanity defense, by which criminals are officially excused of their crimes while nevertheless punished with involuntary “hospitalization” and debilitating “treatments.”

Third, he can’t make up his mind whether mental illness is real or not, although he provides ample reason to see it as metaphorical illness and not the brain disease that psychiatry, despite the absence of biological evidence, has long insisted it is. Yet he entertains various genetic and neurological theories of schizophrenia as though he’s not read his own catalog of psychiatric prevarications.

Finally, it is disturbing that in the entire book one finds no reference to Thomas Szasz. That Whitaker could have researched the history of psychiatry without encountering Szasz’s half-century of criticism defies credulity. More likely, Whitaker avoided mentioning Szasz to prevent the book from being summarily dismissed in certain circles. Whatever the reason, it is poorer for the omission. For one thing, had he discussed Szasz’s work, he’d have had to come to grips with the fact that behavior, however much disapproved, cannot be disease.

Sheldon Richman is editor of Ideas on Liberty.

Uncivil Wars: The Controversy Over Reparations for Slavery

by David Horowitz

Encounter Books • 2002 • 137 pages • $21.95 hardcover; $16.95 paperback

Reviewed by George C. Leef

Probably because he was once one of them, David Horowitz brings out the worst in leftists when he writes about their destructive beliefs and close-minded attitudes. His books and speeches are usually met with wild vitriol by his former allies at Berkeley and the many other universities where tenured radicals (to use Roger Kimball’s useful term) reign. Many would call him a racist and fascist if he wrote a book on raising hamsters.

Uncivil Wars is not about raising hamsters. It’s about the absurdly divisive and emotional issue of reparations for slavery. In short, Horowitz says that it is nonsensical to adopt a policy that would require many people, not one of whom ever owned a slave, to give up anything to “compensate” other people, some of whose ancestors were held as slaves in the distant past. There really isn’t anything new in Horowitz’s argument, but he makes it cogently.

What the book is chiefly about is not the argument over reparations for slavery, but rather the reception the argument has received on America’s campuses. The reaction at many elite universities to the mere presentation of an “insensitive” statement opposing reparations shows that we have a serious problem: they have become institutions of indoctrination rather than inquiry.

For several years the contention that the United States “owes” reparations to the black population for the long-gone institution of slavery has been circulating in the media and political circles. Randall Robinson, author of a book titled The Debt, has been especially vocal in pressing his case, which boils down to saying that today’s Americans are responsible for the bad acts of the politicians who permitted slavery in the eighteenth and nineteenth centuries. Horowitz thought the time had come for a refutation, so in 2001 he wrote a piece entitled “Ten Reasons Why Reparations for Slavery Is a Bad Idea—and Racist, Too.” He then attempted to have it published in various campus newspapers.

Where it was published the response from pro-reparations students and faculty members was swift and nasty. Horowitz writes that at the University of California, within hours of publication in the Daily Californian, “40 angry black students accompanied by their political mentor, a professor of African-American studies, invaded the paper’s editorial offices. In a raucous, finger-wagging session, they accused Editor-in-chief Daniel Hernandez of running an ad that was ‘racist,’ ‘incorrect,’ and demanded a printed apology.” Hernandez capitulated and confessed his errors in the paper the next day, writing that it was “unfair” for Horowitz to have purchased space in the paper without giving a chance for opposing views to answer directly.

What makes that last statement so risible is that neither at Berkeley nor any other campus did Horowitz’s antagonists attempt to debate his arguments on their merits. Over and over the protests took the form of angry paroxysms. It’s obvious that many college students have soaked up the postmodern idea that feelings are all that matter.

At the University of Wisconsin, a mob demanded that the administration bar the Badger Herald, which had chosen to print the Horowitz piece, from campus on the grounds that it was a “perpetrator of racist propaganda.”

When the campus paper at Brown printed it, a new element appeared—theft. After the customary demand for an apology was ignored, protesters responded by taking every copy of the paper at every distribution point and throwing them away. A spokesman said that the theft was justified because Horowitz had made “a direct assault on communities of color at Brown.” A faculty member defended the students, explaining, “I have talked to students who told me that they can’t perform basic functions like walking or sleeping because of this ad.”

The whole episode shows that many young Americans, students at top universities, are incapable of rationally discussing their political beliefs. Instead, they turn reflexively to storm-trooper tactics when someone challenges anything remotely connected with their “identity.” Horowitz concludes that many Americans—not just those black student protesters—want the status of victimhood so badly that they can’t think logically about arguments denying that they are victims entitled to reparations or other preferential treatment.

While Uncivil Wars makes a useful contribution to the case against reparations for slavery, the greater value of the book is that it exposes an ugly truth about the intellectual climate at American colleges and universities. Horowitz says that they have become “swamps of almost bottomless ignorance and malice.” He’s right, and I fear that they will remain so long after the silly debate over reparations has been forgotten.

George Leef is book review editor of Ideas on Liberty.

The New White Nationalism in America: Its Challenge to Integration

by Carol M. Swain

Cambridge University Press • 2002 • 416 pages • $30.00

Reviewed by Walter E. Williams

In The New White Nationalism, Professor Carol Swain, who teaches political science and law at Vanderbilt University, warns about the growing “white nationalist” movement in contemporary America that she says threatens racial harmony.

Swain argues that over the last ten years, this new white-consciousness movement has gained strength through exploiting white resentment over racial preferences and double standards favoring blacks and other minorities. The movement has also exploited white anger over soaring interracial crime rates; according to 1997 FBI statistics, of approximately 1.7 million violent interracial crimes involving blacks and whites, 90 percent were committed by blacks against whites. Fifty-six percent of violent crimes committed by blacks had white victims, whereas only 3 percent of violent crimes committed by whites had black victims.

According to Swain, the actual number of white hate groups is in question because of differences in classification by watch groups such as the Simon Wiesenthal Center, Southern Poverty Law Center, Jewish Defense League, and others. However, as of 2000 the Southern Poverty Law Center puts the number at 554. Experts differ as to the threat posed by groups such as the Ku Klux Klan, Aryan Nation, and Skinheads. Some suggest that “liberal” watch groups might overstate hate-group threats to enhance their fund-raising opportunities. Swain nonetheless sees them as significant threats and an important wake-up call for Americans to re-examine policies and truthfully confront racial issues.

I agree. Professor Thomas Sowell, who has written extensively on matters of race, has frequently pointed out that multi-ethnic societies are inherently unstable. Sowell says, “Group polarization has tended to increase in the wake of preferential programs, with non-preferred groups reacting adversely, in ways ranging from political backlash to mob violence and civil war.” Swain agrees with Sowell’s findings, saying that racial preferences create a made-to-order grievance for white nationalist groups and their recruitment strategies.

Black and Hispanic emphasis on group pride, group self-determination, and multiculturalism have provided white nationalists with justification for advocating parallel forms of white solidarity seeking to protect white interests. In fact, David Duke formed the first National Association for the Advancement of White People (NAAWP) in response to his college experiences. He became upset because whites were not allowed to express racial pride while blacks faced no condemnation for doing so.

One of the most important parts of Swain’s book is her discussion of what needs to be done. Mainly there must be open and honest discussion of racial issues in academia and the political arena. She says that honest discussion in the political arena is avoided, in part, so as “not to offend the affluent blacks in the Democratic Party coalition.” She adds, “Instead of genuinely addressing the problems associated with white hostility toward racial preferences and how this is affecting the experiences of young Americans of all races, African-American leaders are expending valuable political capital on the pursuit of purely symbolic victories such as the removal of the Confederate flag from public places, an effort that in much of the South has increased racial polarization without producing any concrete benefits for blacks or for anyone else.”

Professor Swain’s chapter “Concluding Observations and Policy Recommendations” makes bold recommendations. They are really just plain common sense, but they seem bold because common sense is so rare—especially in academia and politics. First, she says that “Americans need to regain control over institutions of higher learning and to restore an environment where ideas on controversial racial topics can be expressed without fear of harm or retaliation.” The average American would be shocked by how intolerant professors, administrators, and students are on many campuses, where speakers with differing views are booed off stage, cursed, assaulted, and often require police protection.

Swain also says there must be a rejection of racial double standards that allow blacks to verbally assault and slander whites with racial epithets and false charges without suffering any loss of respect or financial damages. Examples include the NAACP’s election 2000 advertisements suggesting that George W. Bush was an accomplice in the lynching death of James Byrd, Jr., and Jesse Jackson’s telling black voters that a Bush win would mean the end of black civil rights. Other racial double standards include the acceptance of separate racial groups such as the Black Congressional Caucus or Black Students Union. Imagine the outcry if whites organized a White Congressional Caucus or White Student Union. Remarkably, Swain even calls for the ending of all racial preferences in employment and promotion.

All in all, I recommend Professor Swain’s book as worthwhile reading.

Walter Williams is professor of economics at George Mason University.

What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States

by James F. Simon

Simon & Schuster • 2002 • 348 pages
• $27.50 hardcover; $14.00 paperback

Reviewed by George M. Stephens

The struggle between Thomas Jefferson and Alexander Hamilton to define American government is well known. James Simon, professor of law at New York Law School, has written a carefully researched, thoughtful book about the less-familiar but equally important battle between Jefferson and John Marshall, third chief justice of the United States Supreme Court, to shape the kind of nation we would have.

Jefferson favored a government limited to protecting life, liberty, and estates, following the ideas of the English political philosopher John Locke. All other dealings, he thought, should be a matter of private contract between citizens. In the kind of nation Jefferson envisioned, the central government’s effect on people’s lives would be almost imperceptible.

Jefferson’s limited-government view triumphed in the political arena following his election in 1800. But it did not prevail in the judicial arena. Hamilton’s expansive “High Federalist” view was placed on the United States Supreme Court for life in the person of John Marshall. Marshall favored a far greater concentration of power in the central government than Jefferson.

Marshall was one of President John Adams’s “midnight judges” (last-minute appointments with which he filled the judiciary with Federalists). Another was William Marbury, to be a justice of the peace, whose commission was duly signed by Marshall as secretary of state. Jefferson named James Madison to be Marshall’s successor, and Madison refused to deliver Marbury’s commission, setting up the famous case Marbury v. Madison. The Marshall Court in 1801 was asked to issue a judicial order to Madison to show cause for not delivering the commissions to Marbury and the other complainants.

Simon conducts a skillful analysis of Marshall’s approach to Marbury, explaining how he crafted the decision to give Jefferson a tactical victory (ruling that Madison could not be compelled to deliver the commissions), while simultaneously giving himself the strategic victory by establishing the proposition that the Supreme Court had the power to invalidate unconstitutional laws.

Simon also takes up several other important cases of the era, including Martin v. Hunter’s Lessee, which was a conflict between the judicial authority of a state and that of the federal government’s authority to enforce the terms of a treaty, overturning the Virginia Supreme Court of Appeals. Justice Joseph Story, Marshall’s principal ally on the Court, wrote that the Supreme Court must have authority to harmonize state and federal laws, or the Constitution would be different in different states.

Two more Marshall cases that set key precedents were McCulloch v. Maryland, which established that a state could not tax property of the United States, and Gibbons v. Ogden, in which the Court ruled against New York’s steamboat-monopoly law in favor of the congressional coasting statute, because the Constitution made the federal law supreme in that field. This decision became the basis for extending interstate regulation to other modes of transportation.

The point of Simon’s historical survey is to demonstrate how, with just a few crucial decisions, John Marshall’s centralized government view triumphed over Jefferson’s state-centered view, thereby determining the kind of nation we would become. In that, the book clearly succeeds.

Simon is doing scholarly historical research, not assessing consequences, but it is interesting to examine a couple of them. Centralization of power is more likely to produce abuse than is fragmentation of it—a point that Jefferson often made. An example is interstate-commerce doctrine, which descended from Gibbons. In the late-nineteenth- and twentieth-century, Congress began to regulate even commerce that did not actually move between states but somehow “affected” it, and the Commerce Clause became the vehicle for much federal intervention. Many constitutional scholars have said that the framers meant only to give Congress authority to “regularize” commerce: to prevent the states from erecting barriers against each other. Arguably, Marshall’s Federalist jurisprudence is responsible for today’s regulatory state, with its penchant for controlling almost every aspect of business.

A second important consequence arose from the decision in U.S. v. Butler (1936), which redefined federal powers. The Court said that, notwithstanding the list of powers granted to Congress in Article I, Section 8 of the Constitution, the General Welfare clause in that article was a conveyance of virtually unlimited powers. The Court cited the views of Justice Story in his Commentaries on the Constitution of the United States. It is highly doubtful that Marshall would have approved of the decision in Butler, but he had set his Court on the path. Jefferson had warned that through abuse of the Welfare clause the federal government could step onto a “boundless field of power,” which it surely has.

George Stephens is author of Locke, Jefferson and the Justices: Foundations and Failures of the U.S. Government.

In the introduction to his anthology The Bill of Rights: Original Meaning and Current Understanding, law professor Eugene W. Hickok, Jr., wrote, “during the summer of 1787 and during the formative years of the early Republic, there was considerable disagreement over the idea of appending a bill of rights to the new Constitution, as there was controversy over the Constitution itself.” Hickok continued, “While it is something of an overstatement to describe the Constitution of 1787 as nothing but the product of political compromise, it is safe to say that the federal character of that Constitution . . . was hammered out through compromise.”

Indeed, some Founding Fathers believed that the Constitutional Convention itself was illegal because it violated the Articles of Confederation, the law of the land. Samuel Chase—a signer of the Declaration of Independence—refused to be a delegate. According to the Articles, the only proper function of the convention was to “amend” the existing compact, not to create a new one. Nevertheless, some delegates clearly wished to establish a new compact.

James Madison, along with other Federalists, hoped to establish a strong central government in order to overcome what he termed “the radical infirmity” of the Articles. The infirmity was that Congress had no power to force individual states to comply with its requests. Without a federal government to collect taxes and to issue a monopoly currency, Madison feared that America would not hold together as a nation. In particular, Congress needed to pay for the American Revolution, which meant honoring a huge foreign debt and redeeming paper certificates that had been issued as soldiers’ pay during the war. But this centralized power violated the Articles of Confederation.

Thus when the Constitutional Convention opened, such giants as the great orator Patrick Henry and Richard Henry Lee—who had asked the Continental Congress to declare independence from Britain—chose to be absent. Rhode Island boycotted the convention altogether. Those who attended found themselves in constant debate over issues such as centralized government versus states’ rights. From the 12 states represented, only 55 of 74 elected delegates actually attended the proceedings and fewer signed the resulting document. The Virginia delegate George Mason said he would rather cut off his hand than affix his signature to it.

Therefore, the first step in answering the question about what intentions underlie the Constitution is to realize that many prominent men expressed their intentions by boycotting the Convention or refusing to sign the resulting document.

The Anti-Federalists—those who opposed the Constitution—argued that it transferred too much power from the states to a federal government. They also objected to the absence of a bill of rights. Others argued against specific terms of the Constitution, for example, its authorization of a standing army in peacetime.

Even some who supported the Constitution did not do so on principle but rather from expediency. As delegate Gunning Bedford declared on July 5, 1787, “The condition of the United States requires that something should be immediately done. It will be better that a defective plan should be adopted, than that none should be recommended.” Perhaps this was the basic intention of most delegates to the convention: to hold America together as a nation. But the issues raised by the convention threatened to tear the nation apart.

Analysis of the Constitutional Convention encounters a severe problem. No transcript exists. Moreover, as a procedural rule, the convention barred the public, thus ensuring that no newspaper accounts exist. The debate must be reconstructed from various delegates’ notes. Of these, Madison’s record is by far the most complete. Yet his account is burdened by two disadvantages. First, as a staunch Federalist, he may well have given short shrift to Anti-Federalists’ arguments. Second, his account was not published until decades later, denying other delegates the opportunity to contradict its substance.

Thus it may not be prudent to assess the intentions of delegates solely on the basis of what was allegedly said during the convention.

Some Compromises of the Constitutional Convention

Madison has been called the “father of the Constitution.” Although his was not the main hand behind the document’s wording, he was the man most responsible for its content. The substance was embodied in what was called the Virginia Plan. On May 29, 1787, Edmund Randolph, governor of Virginia, proposed the plan. Gouverneur Morris of Pennsylvania explained the distinction between the existing federation and the one being proposed: “the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation.” The Virginia Plan envisioned a tripartite government: an executive, a judiciary, and a legislature with two houses. The federal government could veto acts of the state legislatures and use force against rebellious states. Advocates of states’ rights balked. Randolph himself admitted that the “strong consolidated union” meant that “the idea of states” would be “nearly annihilated.”

Another major sticking point was the proposed proportional representation of the states in both houses of the legislature. Small states protested against what they viewed as domination by the larger ones; Delaware threatened to withdraw from the convention. On June 29 the small states lost the first battle. The convention established population as the basis for representation in the House of Representatives. The convention verged on dissolution. Luther Martin of Maryland declared, “The States have a right to an equality of representation. This is secured to us by our present articles of confederation; we are in possession of this privilege.” Compromise emerged. Although the House would be proportionally represented, the states would have equal representation in the Senate.

The conflict over representation spilled into another issue: slavery. The North and less populous South were divided on how slaves were to be counted for taxation and proportional representation. The South wanted to increase its representation by fully counting the slaves. The North objected. They compromised. The proposed Constitution stated, “Representatives and direct Taxes shall be apportioned among the several States . . . according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons . . . three-fifths of all other Persons.” The relevant “other persons” were slaves.

The North-South division caused other tensions as well. The North wanted to regulate interstate commerce. The South resisted because its economy depended on the export of raw materials (rice, cotton, and tobacco, for example), which were vulnerable to export taxes. When an import tax on slaves was suggested, the convention erupted. The conflict was resolved by what George Mason called “a bargain.” Congress got the power to regulate commerce, but it could not interfere with the slave trade until 1808. Moreover, fugitive slaves who escaped northward would be returned to their owners.

There was also concern over the presidency. If the national executive was to be vested in one man, it was asked, would this become the “fetus of monarchy”? Again, compromise: the national executive would consist of one man whose power was limited. For instance, the president could appoint federal judges, but Senate approval would be required.

On September 17, the delegates met for the last time to formally sign the Constitution. On September 28, Congress ordered the states to call ratifying conventions to vote on the Constitution. Again, the rebellious Rhode Island declined. Ratification by nine of the twelve remaining states was required for the Constitution to become the law of the land.

Ratification Debates

Reaction to the Constitution varied from convention to convention. Some states, most notably the smaller ones, ratified with little hesitation. Delaware—the first to ratify on December 7, 1787—did so for utilitarian reasons. It needed the protection of a larger union to survive. Similarly, Georgia was on the brink of warfare both with the Spaniards in Florida and with Indians: it needed union. Connecticut wanted protection against the stiff customs imposed by large neighbors, primarily New York.

In other states vehement debate arose. Here the Anti-Federalist attacks repeated several criticisms: the Constitution lacked a bill of rights; it discriminated against southern states; it weakened state sovereignty. Working-class people feared that the Constitution was an aristocratic document that favored the rich, and they were particularly concerned about the federal government’s right to issue paper money. At the Massachusetts convention, one delegate declared, “These lawyers, and men of learning and moneyed men, that . . . make us poor illiterate people swallow down the pill . . . they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonah!” From Virginia, George Mason concurred. He believed that the federal judiciary would dominate state courts, allowing the rich to oppress the poor. The absence of a bill of rights made this prospect more likely.

The Anti-Federalist leaders did not always speak with a single voice, however. Indeed, the lack of Anti-Federalist cohesion led Madison to write of one state, “There was not a single character capable of uniting their wills or directing their measures . . . They had no plan whatever.”

One Anti-Federalist issue dominated, however—the absence of a bill of rights. At the Constitutional Convention, a bill of rights had not been a topic of much discussion. Most of the delegates believed that individual rights were secured by state constitutions. If state governments were weakened, however, such personal liberties as freedom of speech and trial by jury needed protection from centralized government.

The Federalists considered a bill of rights superfluous or worse. Listing rights could be dangerous because some rights would be overlooked or left out for brevity’s sake. The federal government might violate the unlisted rights with impunity. Alexander Hamilton observed, “why declare that things shall not be done which there is no power to do?” If the federal government had been granted no power to censor speech, why raise the issue?

The Anti-Federalists seemed to hold the upper hand in this argument, yet the Constitution was ratified without a bill of rights. Why did Federalist arguments triumph?

Several factors contributed. One was the great skill with which Federalists such as Madison and Hamilton argued. Consider one example. Anti-Federalists disputed the possibility that a territory as large as the United States could have a representative central government because such a government would necessarily be impersonal, unrepresentative, and dominated by the wealthy. Madison turned this criticism around, claiming that the vastness of America was an argument for a strong republic. He reasoned that a large territory tended to balance out the interest groups that vie for dominance. “The smaller the society,” Madison wrote, “the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party and the more easily will they concert and execute their plans of oppression.”

This argument was presented in one of a series of essays written under the pen name of “Publius,” the first of which appeared in late 1787. Published in various New York newspapers, the essays were widely reprinted and exist today under the title The Federalist Papers. Authored by Hamilton, Madison, and John Jay, the articles persuasively critiqued the Articles of Confederation and advocated centralized government.

The Federalists also employed a superior strategy, albeit not always a fair one. The AntiFederalists sought to delay the ratification process so they’d have time to circulate their criticisms of the Constitution to the people. The Federalists had emerged from the closed convention with a distinct advantage. They drew support from towns that tended to have well-circulated newspapers. By contrast, Anti-Federalist support came from rural communities, which were isolated. Moreover, the ratifying conventions were usually held in town where the better-organized and better-funded Federalists could speed the process through.

Moreover Anti-Federalists claimed that their mail, including newspapers, was being tampered with by Federalist postmasters in an attempt to silence them. Some Federalists leveled the same accusation.

At one point the Federalists made a brilliant strategic move. After the first few states had ratified, the Anti-Federalists began to call for ratification with attached amendments. Amendments might delay ratification or render it invalid. In response, the Federalists urged the attachment of “suggested” amendments. In Massachusetts, John Hancock called this the “conciliatory proposition.” In vain, the Anti-Federalists cried out that the amendments would not be binding on the first Congress. The conciliatory proposition induced Massachusetts to ratify with suggested amendments, but even then the vote was 187 to 168.

Six states had ratified; three more were needed. The most important Anti-Federalist state was Virginia, to which other states now looked for leadership. Virginia’s ratifying convention should have been a touchstone if only because many of America’s most prominent leaders were Virginians. On the Anti-Federalist side were George Mason, Patrick Henry, and Richard Henry Lee. The Federalists were equally well represented by such prominent men as John Marshall, who later became chief justice of the Supreme Court.

The convention occurred relatively late in the ratification process. On the second day of debate, news of South Carolina’s ratification (the eighth state) reached Virginia. Staunch Anti-Federalists played their ace card—southern fear of northern domination. But by then, many of their fellows had decided to ratify. John Randolph explained, “The accession of eight states reduced our deliberations to the single question of Union or no Union.” On June 26, Virginia ratified 89 to 79. Like South Carolina and New Hampshire before her, Virginia attached suggested amendments. New York followed suit.

On April 30, 1789, George Washington, having run unopposed, became the first president of the United States. But what of North Carolina and Rhode Island, the two states remaining outside the Union?

North Carolina had voted earlier to wait for a second constitutional convention that would consider suggested amendments. In face of the inevitable it now became the 12th state to ratify.

Rhode Island stood alone. More than any other state, it would have felt the keen impact of federal tariffs. Moreover, it was not eager to relinquish the right to issue currency. Each township had been polled and ratification had been rejected, 28 to 1. Then, in early 1790, the new Senate severed all commercial relations and hinted at a willingness to use force against the rebellious state. Rhode Island ratified by a vote of 34 to 32.

The ratification debates revealed deep divisions among and within the states on issues ranging from freedom of religion to a standing army. It dramatized the fact that no single intention lay beneath the surface of any particular passage of the Constitution. The Constitution—including the Bill of Rights—was shaped by its critics as well as by its advocates, and the intentions behind it varied widely. Rather than search for any one interpretation of the Constitution, therefore, it is productive to explore the compromises reflected in the document. To understand the compromises, however, it is necessary to weigh anew both sides of the argument.

More fundamentally, one must understand the political circumstances that gave rise to the specific wording of the Constitution. After all, the intentions of the framers were largely a reaction to events surrounding the American Revolution. For example, the Constitution’s prohibition against a standing army makes no sense until the abuses of the British army against the colonists are taken into account. Thus better questions to ask regarding any passage of the Constitution may be, Which political situation was it meant to prevent or perpetuate? And why?