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Rothbard: The Constitution Was a Coup d'État

By David Gordon

Mises.org

February 14, 2020

[Conceived in Liberty: The New Republic, 1784–1791.By Murray N. Rothbard. Edited by Patrick Newman. Mises Institute, 2019. 332 pages.]
We owe Patrick Newman a great debt for his enterprise and editorial skill in bringing to publication the fifth volume, hitherto thought lost, of Murray Rothbard’s Conceived in Liberty. The details of his rescue of the lost manuscript are indeed dramatic, but rather than recount them here, I should like to concentrate on a theme central to the new book.
It is well known that Rothbard took the American Revolution to be mainly libertarian in its inspiration. The libertarian impulses of the Revolution were betrayed by a centralizing coup d’état.
As Rothbard puts it:

Basically, urban merchants and artisans, as well as many slaveholding planters, united in support of a strong nation-state that would use the power of coercion to grant them privileges and subsidies. The subsidies would come at the expense of the average subsistence yeoman farmer who might be expected to oppose such a new nationalism. But against them, to support a new constitution, were the commercial farmers aided by the southern plantation-farmers who also wanted power and regulation for their own benefit. Given the urban support, the split among the farmers, and the support from wealthy educated elites, it is not surprising that the nationalist forces were able to execute their truly amazing political coup d’état which illegally liquidated the Articles of Confederation and replaced it with the Constitution. In short, they were able to destroy the original individualist and decentralized program of the American Revolution. (p. 128)

Conceived in Liberty, ...Murray N RothbardBest Price: $9.00Buy New $15.39(as of 08:05 EST - Details)

The theme I should like to concentrate on is this: what happens to the way we understand the Constitution if Rothbard is right that it was a centralizing document? The Anti-Federalists, with whom Rothbard agreed, denounced it for that reason. For example, in Virginia Patrick Henry, one of Rothbard’s heroes, said:

When the American spirit was in its youth, the language of America was different: liberty, sir, was then the primary object….But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire….Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances? But, sir, we are not feared by foreigners; we do not make nations tremble. Would this constitute happiness, or secure liberty? (p. 262)

With all this as background, we can now consider the theme I’d like to stress. If the Anti-Federalists were right. We cannot say that the Constitution as originally written gave us a limited government that later regimes have ruthlessly and recklessly expanded. In taking this approach, Rothbard set himself firmly against the dominant trend in American conservative thought. He remarks:

The Constitution was unquestionably a high-nationalist document, creating what Madison once referred to as a “high mounted government.” Not only were the essential lines of the nationalistic Virginia Plan Report carried out in the Constitution, but the later changes made were preponderantly in a nationalist direction….While it is true that the general congressional veto over state laws and the vague broad grant of powers in the original Virginia Plan were whittled down to a list of enumerated powers, enough loopholes existed in the enumerated list: the national supremacy clause; the dominance of the federal judiciary; the virtually unlimited power to tax, raise armies and navies, make war, and regulate commerce; the necessary and proper clause; and the powerful general welfare loophole; all allowed the virtually absolute supremacy of the central government. While libertarian restraints were placed on state powers, no bill of rights existed to check the federal government. (p.211)

We can argue that later regimes extended national power beyond what the Constitution contemplated, but if Rothbard is right, the Constitution as written provides ample scope for tyranny.
One of the leading arguments of Constitutional conservatives is that since Congress is granted the power to declare war, military engagements by later presidents that bypass Congress are unconstitutional. (In several reviews, I have argued this way myself.) Rothbard does not agree. He says:

Congress’ proposed broad military powers occasioned much debate. The nationalists tried to narrow Congress’ power to make war into a more concentrated, and therefore a more controllable, form: Pinckney to the Senate only, Butler to the president himself. While these were defeated, Madison cunningly moved to alter congressional power: ‘make war’ became ‘declare war,’ which left a broad, dangerous power for the president, who was grandiosely designated in the draft as the ‘commander in chief’ of the U.S. army and navy, and of all the state militias. For now, the president might make war even if only Congress could formally declare it.” (p. 185)

Rothbard finds similar slippery language in the Tenth Amendment, imagined by some defenders of limited government to be a principal means to thwart efforts by the federal government to centralize power:

This amendment did in truth transform the Constitution from one of supreme national power to a partially mixed polity where the liberal anti-nationalists had a constitutional argument with at least a fighting chance of acceptance. However, Madison had cunningly left out the word “expressly” before the word “delegated,” so the nationalist judges were able to claim that because the word “expressly” was not there, the “delegated” can vaguely accrue through judges’ elastic interpretation of the Constitution….The Tenth Amendment has been intensely reduced, by conventional judiciary construction, to a meaningless tautology. (pp. 302–3)

(Note that Rothbard does not disagree with the nationalist judges’ interpretation.) Rothbard does see some hope of restraining the central government in the “forgotten” Ninth Amendment, but this was not to be invoked in a serious way by the Supreme Court until the 1960s.
Defenders of the Constitution as a bulwark of limited government often invoke the wisdom to be found in the Federalist Papers, but Rothbard views them as deceptive propaganda:

The essays contained in The Federalist were designed not for the ages—not as an explanation of nationalist views—but as a propaganda document to allay the fears and lull the suspicions of the Antifederal forces. Consequently, these field marshals of the Federalist campaign were concerned to make the Constitution look like a mixed concoction of checks-and balances and popular representation, when they really desired, and believed that they had, a political system of overriding national power. What is remarkable is the fact that historians and conservative political theorists have seized upon and canonized these campaign pieces as fountains of quasi-divine political wisdom, as hallowed texts to be revered, even as somehow a vital part of American constitutional law. (pp. 269–70)

James Madison’s argument that a large national republic would better cope with the dangers of factionalism than a small one is often invoked for its profundity, but Rothbard is not impressed:

Madison claimed that the greater diversity of interests over a large area will make it more difficult for a majority of the interests to combine and oppress a minority. It is difficult to see, however, why such a combination should be difficult….But the main fallacy in Madison’s argument is that it is part and parcel of the antidemocratic Federalist doctrine that the danger of despotic government comes, not from the government, but from among the ranks (i.e., the majority) of the public. The fallacy of this by now should be evident. Even if a majority approves an act of tyranny, it almost never initiates or elaborates or executes such action; rather they are almost always passive tools in the hands of the oligarchy of rulers and their allied favorites of the state apparatus. (pp. 270–71)

Rothbard concludes with this verdict on the Constitution:

Overall, it should be evident that the Constitution was a counterrevolutionary reaction to the libertarianism and decentralization embodied in the American Revolution. The Antifederalists, supporting states’ rights and critical of a strong national government, were decisively beaten by the Federalists, who wanted such a polity under the guise of democracy in order to enhance their own interests and institute a British-style mercantilism over the country. Most historians have taken the side of the Federalists because they support a strong national government that has the power to tax and regulate, call forth armies and invade other countries, and cripple the power of the states. The enactment of the Constitution in 1788 drastically changed the course of American history from its natural decentralized and libertarian direction to an omnipresent leviathan that fulfilled all of the Antifederalists’ fears. (p. 312)

There is evidence that Rothbard wrote the manuscript of this book before 1967 (see p. 312, editor’s note 7). But I do not think that he later changed his mind about the Constitution. Those who wish to challenge his brilliant analysis have a difficult task ahead of them.
Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.

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Rothbard: The Constitution Was a Coup d'État