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Rothbard’s Challenging History of the Revolutionary War and the Constitution – Jeffrey Rogers Hummel (07/09/2020)

The Constitution has traditionally been viewed as the culmination of the American Revolution, brought about through judicious compromise by the country’s most distinguished and enlightened statesmen. Some version of this established American folklore still tends to be repeated in high school and college texts and in the popular media. But the interdisciplinary and prolific libertarian scholar, the late Murray Rothbard, in the fifth and final volume of Conceived in Liberty, portrays the Constitution as a reactionary counter-revolution against the Revolution’s radical principles, orchestrated by a powerful array of mercantile, creditor, and landed interests that sought a central government that would reproduce many of the hierarchical and mercantilist features of the eighteenth-century British fiscal-military State. 

Having this volume finally available is an unexpected and noteworthy accomplishment. The first volume of Conceived in Liberty was published in 1975. It was part of a projected multi-volume history of America from the founding of the colonies to the adoption of the Constitution. Three more volumes came out in due course. But the fifth volume, which promised to explore the period from the end of the American Revolution to the Constitution’s ratification, never appeared. Rumors circulated that Arlington House, the conservative publisher of the first four volumes, was not happy with Rothbard’s critical approach to the Constitution. But the actual explanation is probably more mundane, given that Arlington House went out of business in the early 1980s. By the time of Rothbard’s death in 1995, any trace of the fifth volume was thought to be irretrievably lost. But it turns out that an early manuscript copy, partly typed but mostly handwritten, ended up in the Mises Institute archives. Economic historian Patrick Newman, after painstakingly deciphering Rothbard’s scrawl, has shepherded the volume into publication. 

When the first volume of Conceived in Liberty came out, I was a graduate student, and my field at the time was colonial history. The volume’s 531 pages, written with the assistance of Leonard Liggio, covered the American colonies during the 17th Century. I already knew a good bit about the subject. Yet upon reading this volume, I was amazed at its comprehensive coverage, detailed accuracy, and above all, its unique and revealing interpretations. The next three volumes, all shorter, lived up to the same high standard. Newman has enhanced the readability and usefulness of the fifth volume by perceptively dividing Rothbard’s manuscript into sections and chapters, adding an explanatory introduction, and creating an index. The introduction also includes brief summaries of the earlier volumes to help orient readers, although no summaries can do these works full justice and substitute for consulting them directly. 

This final volume is not quite up to the earlier volumes. How could it be? It does not have the kind of thorough bibliographic essay that graced each of the previous volumes, although Newman has partly remedied this by supplementing Rothbard’s few footnotes with his own editorial footnotes, providing supporting references. Despite Rothbard’s reputation for being able to make his first draft his final draft, his earlier volumes definitely went through some editing by others. And the fact that Rothbard’s original manuscript for the fifth volume apparently dates back to 1966, well before publication of any of the other volumes, strongly suggests that Rothbard would have done much editing himself, expanding on certain sections. In the other volumes, he clearly consulted important sources that appeared only after 1966. Finally the last volume could have done without Judge Andrew P. Napolitano’s fervid foreword, which tends to weaken the book’s appeal to a wider audience. 

The book is still vintage Rothbard, from start to finish. Not everyone will be comfortable with how he infuses the narrative with his own strong opinions and anti-State ideology. As in all of his historical writing, he starkly identifies those he considers heroes or villains. That sometimes leads to a lack of nuance, understating or ignoring the flaws of his heroes and the virtues of his villains. To paraphrase Ayn Rand, although principles may be black and white, men and women are often gray. But on the other hand, Rothbard’s partisanship actually helps to vividly capture the acrimonious sectarian and personal divisiveness of the period and serves as an antidote to the tendency of many other accounts to minimize these disputes and conflicts. I don’t accept every single one of Rothbard’s judgments, but there are very few serious works of history that I agree with entirely.

Like the previous volumes of Conceived in Liberty, the fifth is richly detailed with actors and events. The more you already know about whatever historical period Rothbard treats, the more insights you will find, with the downside that general readers may get a bit overwhelmed. At the same time, this volume feels slightly less comprehensive compared with the others. He does not get into some topics I would have expected him to cover, and there are other topics I would have expected him to cover in greater length. Nonetheless, the final volume of Conceived in Liberty remains a valuable and impressive scholarly contribution. It deftly synthesizes the myriad studies of other historians into a compelling and singular survey.

The first section of the book deals with the so-called “critical period” in U.S. history, after the war had ended. Rothbard quickly disposes of the common belief, both at the time and among some historians, that the post-war economic hardships were due to excessive importation of inexpensive British goods. Anticipating the more recent findings of economic historians, he attributes these hardships partly to the fact that, after the war ended, the U.S. faced all the mercantilist restrictions that Britain applied to other foreign countries. When the colonies were still inside the empire, they were hindered by some of these restrictions but aided by others. Consequently Britain had been the colonies’ major trading partner, and independence forced a painful reorientation of American trade. This in turn created pressures from merchants and artisans for a more powerful government that could retaliate with navigation laws protecting American shipping and tariffs protecting American manufactures.

A second economic problem was the lingering Revolutionary War debt. The state governments devoted the largest portion of their post-war expenditures not only to servicing their own war debts but also, in some cases, to assuming Congress’s debts. Doing so required a tax burden undreamed of before the war. Eventually most states adopted a gradual approach, easing the burden with various forms of taxpayer relief, including in seven states, new issues of paper money. But the Massachusetts government was exceptionally aggressive in trying to pay both interest and principal on its debt quickly. This is what provoked Shays’ Rebellion in the western part of the state in 1786. Although portrayed by nationalists then and by historians for a long time afterwards as a debtor’s revolt, Shays’ Rebellion was essentially a tax revolt, like the American Revolution before and the Whiskey Rebellion later. Thomas Woods, Jr., in a preface to this volume of Conceived in Liberty, credits Rothbard with being the first to interpret Shays’ Rebellion this way. While not strictly correct—a few Revolutionary era historians, most notably E. James Ferguson, had already mentioned taxes as a major cause of the rebellion—this interpretation has since become the historical consensus.

Rothbard correctly dismisses in a footnote “disrupting interstate tariffs” as a “bogey,” but given how often those unfamiliar with the period, practicing a kind of a priori history, raise this alleged problem as a justification for the Constitution, it is one of the topics to which I wish he had given more attention. Virginia did impose a minor impost (tariff) on all imports by ship, even if they came from another state, until it exempted American goods in 1787, and New York taxed foreign goods arriving through other states. But the general rule was complete reciprocity among states. Indeed, Rothbard could have cited Alexander Hamilton’s Federalist No. 12. While Hamilton raised the specter of future trade restrictions between states, his main complaint was that competition among the states was keeping tariffs on foreign imports too low. “Hitherto … these duties have not upon an average exceeded in any State three percent,” he wrote, but with the Constitution, they could be “increased in this country, to at least treble their present amount.”

On the topic of Western territories, Rothbard displays none of the implicit nationalist bias so common in histories of the United States. He exposes the competitive rent seeking of wealthy land speculators for large government grants. More surprising and yet refreshing is his sympathy for the various secessionist movements in the Southwest, even those that were tempted to join the Spanish empire in order to gain navigation rights down the Mississippi River. I know of no other historian specializing in this period who has dared to justify these endeavors. But at the same time, Rothbard denounces the invasion of Indian lands by white settlers and Congress’s creation of a military force to provide the settlers with subsidized protection. He therefore has no qualms about British violation of the peace treaty by a continued military presence in the Northwest territory that encouraged Indian resistance. 

The most revealing parts of this volume of Conceived in Liberty are its major sections dealing with the Philadelphia Convention and the ratification of the Constitution. Anyone familiar with Rothbard’s work will not be surprised by his opposition to the Constitution. After all, his fourth volume made clear his view that the Articles of Confederation, the previous compact among the states, had created a government that was too strong, not one that was too weak. Many accounts of the Philadelphia Convention treat its proceedings topically, often leaving the impression that the Constitution emerged through a process of calm deliberation. Rothbard instead gives a blow-by-blow, mostly chronological account. He thus catches issues frequently not mentioned in other secondary works, breathes life into the debates, and highlights how bitter some of the disagreements were. For instance, of the seventy-four state delegates chosen for the convention, nineteen declined even to attend for one reason or another. Others who attended left in disgust, and by the end of its proceedings, only forty-one delegates were left, three of whom refused to sign the document.

 Rothbard’s chronological approach also discloses how very close the convention, held in secret, came to forging a document that granted far more power than what the Constitution ultimately mandated. Consider the alternative Virginia and New Jersey Plans proposed at the convention. The Virginia Plan, formulated by James Madison, would have apportioned the central government’s new legislature according to population, whereas the New Jersey Plan called for a legislature in which each state had equal representation. So through a compromise that every school kid in this country at one time learned about, Congress became a bicameral legislature, with the House of Representatives elected on the basis of population and the Senate giving each state two representatives. But reading Rothbard you will discover that this simplified story leaves out other major differences between the two plans.

The Virginia Plan originally gave the central government explicit authority to use military force to compel obedience from any state. Although this provision was soon dropped, the plan continued to call openly for a “national government” that was “supreme.” It gave Congress such vaguely phrased broad powers, along with a veto over state laws, that there would have been no effective constraints on the government’s scope. The New Jersey Plan, in contrast, enumerated specific powers for Congress. But it was the Virginia Plan’s plenary powers, minus the veto of state laws, that the convention approved for consideration by a five-man Committee of Detail a full two months into the convention’s deliberations. Only at that late date had Madison and other nationalist delegates begun to moderate their opposition to enumerated powers. The Committee of Detail then composed a suggested list of these powers, appended with the hitherto undiscussed clause permitting Congress to make all laws “necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution.” 

No record exists of the Committee of Details’ deliberations, nor was there any debate recorded when the convention overall approved the mischievous “necessary and proper” clause, with its implied powers. Madison subsequently proposed adding to Congress’s enumerated powers the powers to grant corporate charters and establish a university, but these proposals were voted down. Another proposal the convention rejected was giving Congress authority to assume the state debts. However, several delegates admitted that these additions were now unnecessary, not because they considered these powers undesirable but because they believed they were already implied. Madison himself supported the assumption of state debts, in sharp contrast to his later position, but he agreed in a private conversation with Hamilton that it was best not to include that authority expressly because it might generate opposition to the Constitution’s ratification. These are just a few of the many critical incidents that Rothbard lays bare.

Rothbard also recounts and lividly denounces the “corrupt” bargains through which “slavery was driven into the heart” of the Constitution. These included the counting of three-fifths of slaves for state representation, a clause requiring the return of fugitive slaves, a protection of slave importation for twenty years, and “even the congressional power to suppress insurrections.” Initially several Northern nationalists had been quite vocal in their condemnation of slavery. But they also opposed a requirement of a two-thirds vote in Congress for the passage of navigation acts. This restriction had been included in early constitutional drafts at the behest of Southerners, who feared that without such a restriction, Congress would grant a monopoly to Northern merchants in the export of Southern crops. But when representatives from South Carolina offered to give up the two-thirds requirement in exchange for leaving the slave trade open for twenty years, Northern delegates eagerly went along. The compromise thus linked together two blows against liberty. 

What makes Rothbard’s rendition more remarkable is that he had to rely primarily on Madison’s Notes on the Philadelphia Convention, as have all historians. But these Notes were only published posthumously in 1840, after none of the other delegates was left alive to challenge them. That Madison revised his Notes before publication is well established. There therefore have long been suspicions that Madison may have doctored them to bring the proceedings more in accord with his later Jeffersonian sympathies, toning down his own and other delegates’ efforts to create a far more centralized and intrusive government. But not until the 2015 publication by Harvard University Press of Mary Sarah Bilder’s Madison’s Hand: Revising the Constitutional Convention were these suspicions confirmed through her use of forensic evidence and other documents about the convention. What this possibly suggests is that the subsequent use of the Constitution’s “necessary and proper,” “general welfare,” and other such clauses to justify implied powers well beyond those enumerated was not inadvertent but fully intended.

Once the Constitution was unveiled to the general public, its supporters had much going for them. In addition to the enormous prestige of George Washington, who had presided over the convention and whom everyone expected to be chosen as the first President, opposition was initially caught off guard by the convention’s having violated its instructions to merely amend the Articles. The Constitution’s advocates furthermore pulled off a significant linguistic coup by seizing for themselves the label “Federalists.” Many delegates had in fact intended the Constitution to replace the federal system of government under the Articles with a fully national system, even though the convention had cautiously removed the word “national” from the draft. The true defenders of federalism were the Constitution’s critics. But they have gone down in history mislabeled as “Anti-Federalists,” even though, as Rothbard reports, they never themselves accepted that label. Here again, Rothbard’s claim has been confirmed by the recent work of Pauline Maier. In her exhaustive study, Ratification: The People Debate the Constitution, 1787-1788 (2010), she points out that the Constitution’s opponents actually used such monikers as “republicans” and “true federalists.”

The Federalists were also more tightly organized than their admittedly more provincial opponents. Many opponents further weakened their own case by having already conceded a need to give the central government some additional power. Even before the Philadelphia Convention, two attempts to amend the Articles by permitting Congress to impose import duties had such widespread support that they had been rejected in each case by only a single state, thus failing to meet the Articles’ requirement that all amendments be unanimously ratified. The Federalists reinforced these initial advantages by using their control over the government’s postal monopoly to delay and sometimes suppress their opponents’ mail, and this along with Federalist domination of the press inhibited the mobilization and coordination of opposition to the Constitution. Federalists even on occasion resorted to political bribery, physical intimidation, malapportionment of delegates, and holding state ratifying conventions in locations difficult for delegates from rural Anti-Federalist districts to attend. 

Rothbard recounts how these “strong-arm tactics,” to use Maier’s term, allowed the nationalists to ram the Constitution through the first five state conventions in rapid succession. Federalists then began using the prospect of disunion to persuade the remaining states to ratify. But it was the Philadelphia Convention that had actually created that possibility by requiring ratification by only nine states for the Constitution to take effect. Moreover, Federalists themselves in the northern neck of Virginia, in New York City, in northeastern North Carolina, and in Providence, Rhode Island, went so far as to threaten secessions from their respective states if those states did not ratify the Constitution. 

Rothbard’s discussion of each individual state does not go into as great detail about the back and forth debates in the ratifying conventions as does Maier’s book. He is more interested in the composition of the delegates, where they were from, their motives, what special interests they represented, whether and why they switched sides, and the procedural maneuvers of both sides. This offers readers a public-choice analysis of ratification. In the process, Rothbard makes a convincing case that a majority of Americans opposed the Constitution and would have rejected it if the Anti-Federalists had been fairly represented and better led. 

Only for the Virginia and New York ratifying conventions does Rothbard delve more deeply into the opposing arguments. I was therefore pleased to see him take on the analysis in Madison’s famed Federalist No. 10, the insight of which I have always considered to be grossly overrated by historians and political theorists. The nationalists were already compelled to deny vigorously but in many cases disingenuously that the Constitution would subordinate the states. They now contended it would create a delicate balance of powers between the national and state governments, each sovereign within its own realm. In other words, the much-touted federalism of the U.S. governmental system was less an intended consequence of the Philadelphia Convention, as commonly supposed; it was more an unintended and insincere concession that the Anti-Federalists wrenched from the Federalists during the ratification struggle.

Once the Constitution was under consideration in the major states of Massachusetts, Virginia, and New York, the Federalists were in trouble. Previously at the Pennsylvania ratifying convention, the defeated Anti-Federalists had drawn up a proposed list of amendments, which were circulated to the other states. The Federalists themselves had to compose a series of recommended amendments in order to get the Massachusetts convention to ratify. They just barely avoided making Virginia’s ratification conditional upon a series of forty amendments passed by the convention. And at the New York ratifying convention, the Federalists assented not only to a full slate of amendments, but also to a circular letter calling for a second constitutional convention to frame those amendments. Overall, five states coupled their ratifications with proposed amendments, while in two others, the minority issued amendments.

 Whether any constitutional amendments would be approved, however, depended on what happened once the new government began operation. The most ardent Federalists were perfectly prepared to thwart any attempt at amendments. But the politically astute Madison realized that the popular demand for amendments had to be satisfied. Anti-Federalists led by Patrick Henry had defeated Madison’s bid to be one of Virginia’s Senators, and Madison barely squeaked into the House of Representatives. Already three more states, Virginia, North Carolina, and Rhode Island, had endorsed New York’s call for a second convention that, if approved by two-thirds of the states, could under the Constitution recommend amendments. And the more than two hundred state proposals went far beyond a simple bill of rights. Many of them would have stripped the central government of some of its new powers. In particular, a curb on Congress’s ability to impose internal taxes was called for in every set of proposed amendments that emerged from the state ratifying conventions. 

Madison carefully culled through the proposals, eliminating all those, in his words, “endangering any part of the Constitution.” As eventually ratified, the only amendment that dealt with the relationship between the state and central governments is what became the Tenth. This was another provision that every state proposing amendments had requested, and it enshrined the Federalist concession that the government had only limited powers. The other nine amendments that were ratified in what became the Bill of Rights guaranteed various personal liberties, and Rothbard applauds them as “intensely libertarian.” But he also laments the voting down in the House of the attempt to add the word “expressly” before the Tenth Amendment’s clause that “reserved” to the states or people all powers not “delegated to the United States by the Constitution.” Obviously, how effectively this amendment circumscribed the central government depended on future interpretations of how much power the Constitution granted in the first place.

After Congress approved the amendments in the Bill of Rights, the states would not ratify them for several years. Yet the willingness of Congress to submit amendments reconciled many opponents of the Constitution. North Carolina, which had previously refused to ratify the Constitution, now did so. But the Rhode Island legislature, which had chosen no representatives to the Philadelphia Convention, refused for a while even to convene a ratifying convention. Rothbard reveals that some Rhode Islanders looked forward to becoming an independent, small free trading entity, like the Dutch colony of St. Eustatius in the Caribbean. Only after Congress threatened Rhode Island with a total embargo, did a Rhode Island convention ratify the Constitution by a one vote margin in 1790. Notice the irony; the only serious threat of trade restrictions between states occurred after the Constitution was in effect, not before.

In short, one does not have to share Rothbard’s opinion about the undesirability of the Constitution to find his interpretation of what actually happened illuminating. His evaluation of the Constitution as representing a counter-revolution has been advanced by earlier historians who differ with his politics, and this view is being increasingly embraced by historical scholars who admire the Constitution. This is clearly reflected in the titles of such recent, well-received works as Max M. Edling’s A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (2003) and Michael J. Klarman’s The Farmers’ Coup: The Making of the United States Constitution (2016). Whether you think that the Constitution was a mistake, that it was a good idea, or that it didn’t do enough to empower government, you will still encounter reliable, engaging, and challenging history in the fifth volume of Conceived in Liberty.

An earlier, much shorter version of this review appeared in Reason (May 2020)