Richman, America’s Counter-Revolution: The Constitution Revisited: Introduction and Foreword

by Stephan Kinsella on December 10, 2025

Richman America's Counter Revolution cover

Sheldon Richman opened my naive eyes to many ugly truths about the US Constitution. ¹ His great book, America’s Counter-Revolution: The Constitution Revisited (Griffin & Lash: Ann Arbor, Michigan, 2016; pdf) was published a few years ago. It was actually published under a CC-SA license but still unavailable online. As all books should be free and online, ² I nudged Sheldon to send me the file, and tidied it up a bit, so here you have it.

Jeffrey Tucker’s Foreword and Sheldon’s Introduction are below. Enjoy!

Foreword

This much I can assure the reader: after reading this book, you will never think about the U.S. Constitution and America’s founding the same way again. Sheldon Richman’s revealing and remarkably well-argued narrative will permanently change your outlook.

Richman, one of this country’s most treasured thinkers and writers, digs through a period of American history that manages to be almost invisible to most people. He brings the whole period to life in ways that upset core tenets of the American civic religion.

If you ask the average American to summarize the founding in a few minutes, you will hear a story about a bad foreign king, a tea party, a defiant declaration, a war, and then the immaculate conception of the glorious U.S. Constitution that has guarded our liberty ever since. The entire period called “the founding” is smashed together into one short span, from conception to birth to the greatest document in the history of humankind. At best, the short period between the war and the Constitution is dismissed as merely transitional.

As it turns out, there’s a missing 12 years in this conventional account: the time between when the Articles of Confederation were sent to the states for ratification and its replacement in 1789 by the new Constitution. What were the Articles? Why were they replaced? Who replaced them? Was there a debate, and did opponents make valuable points? These are the questions that Richman addresses here. In doing so, he draws on the most contemporary and important scholarly research, while putting the evidence in prose that is accessible and compelling.

His argument at first appears shocking. The small elite who won the day didn’t actually share the values and ideals that drove the war for independence from Britain. These “founders” plotted and schemed to impose a new government that dramatically enhanced and centralized government power. Their stroke of genius in pulling off this coup d’etat was selling the Constitution as a means of guaranteeing freedom and limiting government. In fact, it was the opposite: the imposition of a new statist yoke to replace the one just cast off; the complete reversal of a hard-won freedom.

Provocative, isn’t it? Yet it’s all true. Also striking is Richman’s thorough documentation of the arguments of the Constitution’s opponents, the Anti-Federalists. (These terms can become very confusing. The so-called Federalists were actually the centralists, while the anti-federalists were dedicated to the decentralist ideals of the federalist tradition.) As it turns out, the Anti-Federalists warned about the provisions of the Constitution that they believed would eventually erode rights and liberties. They went further to explain that the structure of the Constitution itself was designed to achieve this very result, benefitting a ruling class at the expense of the people.

While today’s conservatives are routinely shocked at how government violates the Constitution, Richman has a different take: the intrusive and parasitical government we have today was baked into the original design, which is precisely why Richman argues that the Anti-Federalists were right all along. As for the protection of rights and liberties that comes from the most famous section of the Constitution, the Bill of Rights, it wasn’t even part of the original draft sent to the states for ratification.

To reduce the argument here to its essence: the Constitution, far from limiting government, was actually designed to bring about a new one that betrayed the ideals of the Declaration of Independence itself. The ratification of the Constitution was a counter-revolution. There is a reason it has done a poor job in protecting freedom: it was never intended to do so.

Finishing his detailed and exciting argument, Richman turns to the alternative. Must we reject constitutions completely? Not at all. We just need to dispense with the myth that a state can be restrained by a document. What actually restrains power in society is freedom itself, and that includes freedom over the choice of rules we adopt in regulating our lives. Under freedom, these rules are emergent and evolutionary, subject to a market test of trial and error and unending exploration of better ways of living and getting along.

The careful reader will detect in Richman’s conclusion the emergence of a highly sophisticated and distinctly 21st century form of libertarianism. For him liberty is not an alternative set of central plans, pre-packaged laws, and visions of justice and truth that are imposed from above by wise intellectuals who know what’s what. Richman’s libertarian anarchism defers to the wisdom of social processes themselves.

In all my years of thinking about these topics, I’ve wondered if there was a way forward that could blend the best of the insights of Albert Jay Nock, F.A. Hayek, Ayn Rand, Murray Rothbard, and contemporary polycentric legal theorists. Must we follow some one thinker to the end or can we extract their best insights to improve our conception of what freedom looks like? In so many ways Richman has provided that answer. He has done it, and it’s a breath of fresh air.

On a personal note, Richman has been a mentor to me since I first started really thinking, and I know this because he is the person who taught me how. For longer than a year I was privileged to spend time with him talking about ideas. In this period he taught me to avoid dis-missive slogans and preset dogmas. He taught me how to be at once open to new ideas and committed to permanent principles.Time and again I saw him as a model of how to think through issues carefully, drawing on logic, experience, and evidence. As the years have gone by I’ve seen how he has maintained this intellectual discipline, never be-coming lazy about his thinking but rather finding delight in the process of coming to ever greater understanding. He never ceases to challenge us to new heights of intellectual integrity and rigor.

It was sometime in the last year or two that I had dinner with him and a few friends. Around the table he dazzled us all with his insight and erudition. As usual he was as interested in what we were thinking as he was eager to express his own thoughts. His powerful mind was on display as I had never seen it. Everyone felt enlightened and delighted. We paid the bill and left.

Outside the restaurant we said goodbye, and I walked one way while he went the other. I stopped and watched him walk away and briefly teared up with the full realization of the treasure we have in our midst. He seemed at the moment to be a living representative of a great tradition. In my imagination I saw Nock, Thomas Paine, Frank Chodorov, Murray Rothbard. I blinked and saw something even more wonderful: my own friend, as unique and brilliant an exemplar of the ideas of liberty as we could ever hope to have among us.

I can’t fully express just how honored I am to have been invited to write the foreword to this powerful book. I am deeply in Sheldon’s debt. After you read this book, you too will join the ranks of his many intellectual proteges.

—Jeffrey A.Tucker
Liberty.me and Foundation for Economic Education

Introduction

But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it.

—Lysander Spooner, “The Constitution of No Authority”

This is not a history of the U.S. Constitution or the founding of the American republic. Rather, it is a brief against the proposition that the Constitution was a landmark in the long and continuing struggle for liberty. Sadly, it was not. Instead, it was a counter-revolution, in many ways a reversal of the radical achievement represented by America’s break with the British empire. The constitutional counter-revolution was the work not of radicals, but of conservatives who sought, in the words of Robert Morris, the ambitious nationalist Superintendent of Finance under the Articles of Confederation, a nation of “power, consequence, and grandeur.” These men understood that the government of such a nation-state must have the unlimited power to tax, to maintain a permanent debt through a central bank, to regulate and promote trade, and to keep a standing army—all of which was secured, extra-legally and duplicitously, through the process that delivered the U.S. Constitution. Of course, the power to tax, which the Confederation government lacked, was the key, for without it, none of the rest could be accomplished. As historian E. James Ferguson put it, “Proceeding rigidly by the axiom that related sovereignty with revenue power, the founding fathers crowned the new government with unlimited powers of taxation” (The Power of the Purse, 1961).

That the nationalists were motivated in part by an exaggerated fear of democracy in the states should be no excuse in the eyes of libertarians for their maneuvering to create a new central government, far from the people’s watchful eyes, with vast and broad powers. The nationalists would have sought those same powers regardless of how the state legislatures had conducted their business, because a loose federation of states under the Articles of Confederation could never have given the nationalists what a unified, essentially de-federalized state could provide.

How can libertarians look on this conservative, even reactionary achievement with fondness? This book will attempt to show that they should not.

Like most Americans and libertarians, I started out with a favorable attitude toward the Constitution, believing that it indeed was a landmark in the struggle for liberty and that it served well as a protector of our rights until, intentionally or not, it was misinterpreted and twisted into a weapon against liberty. My embrace of the libertarian philosophy in the late 1960s did not change this attitude. For quite a while after that moment, I maintained my respect for what the framers had done in Philadelphia from May to September 1787 and for what the state ratifiers did thereafter.

But slowly, over time, my view changed, and I began to see the Constitution as the product of a counter-revolution. My revisionism was fueled by my exposure to political theory, much of it anarchist, including that of Murray Rothbard and Lysander Spooner, but also by my reading of history, as the following pages will show.

I hasten to note that one’s view of the Constitution need not depend on whether one rejects all government, as an anarchist does. After all, the opponents of the Constitution were not, to our knowledge, anarchists. They opposed vague and concentrated government power far from the people over a large territory, but not, alas, power per se.They accepted the states’ exercise of power—that is, the initiation of force—including the power of taxation, perhaps believing with Thomas Paine that government is “a necessary evil.” Contrary to James Madison’s fa-mous and then-novel view that liberty could be best safeguarded in a large republic, many Anti-Federalists, the dubious term given to all critics of the centralist scheme embodied in the Constitution, stood with Mon-tesquieu, in believing that a free republic had to be a small republic, in which a homogeneous people could know their governors personally and keep a close watch on them. (They would have rejected as a false alternative the Tory clergyman Mather Byles’s question: “Which is better—to be ruled by one tyrant three thousand miles away or by three thousand tyrants one mile away?”—a question made famous by Mel Gibson in The Patriot.)

The critics were not even consistent limited-government advocates of laissez faire, according to which the state did nothing more than keep the peace so the marketplace could operate for the benefit of all. Revealingly, Anti-Federalist Patrick Henry complained that the new Constitution would leave the states little to do but “take care of the poor—repair and make high-ways—erect bridges, and so on, and so on.” This reveals that taking care of the poor, as well as administering the infrastructure, was a normal function of state and local government. So much for the proposition that welfare-state measures were something new in 1933. They may have been new at the national level, but not at the state level. (For more on this, see Jonathan Hughes’s The Governmental Habit Redux: Economic Controls from Colonial Times to the Present [1991].)

Nevertheless, in my view, the men called Anti-Federalists were closer to libertarianism than their nationalist adversaries, who called themselves (with some disingenuousness) Federalists. (Elbridge Gerry, who wanted the Constitution amended before it was adopted, thought that better terms for the opposing sides were ratificationists and anti-ratificationists, or, for short, rats and anti-rats.) The Anti-Federalists would have endorsed what Jeffersonian Republican Abraham Bishop of Connecticut would say a dozen years later:“A nation which makes greatness its polestar can never be free.”As Max M. Edling wrote in A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (2003): “It makes sense to see Antifederalism as an anti-statist argument against the formation of a ‘fiscal-military state’ in America.” In general, these were men who distrusted men with power, especially elites at a distance. As proto-Public Choice theorists, they understood that under-determinate constitutional language would tend to be interpreted and wielded by those with the greatest interest in enlarging government power, while the rest of the population was busy making a living and raising families. This was less of a problem (though still a problem) when government was simple and close, but they thought it was intolerable with a complicated governmental system far away, in which “representatives” from large districts would most likely be drawn from society’s aristocracy.

Yet we must be careful. As Pauline Maier shows in Ratification:The People Debate the Constitution, 1787-1788 (2010), this was no simple contest pitting two distinct teams against each other. Each side consisted of men holding a range of views; the range was clearly larger on the Anti-Federalist side. The advocates of ratification had their differences, but they all wanted the special state ratifying conventions to approve the plan for the new government, even if some hoped for amendments. But the Anti-Federalists held diverse views. Some wanted an outright rejection of the Constitution, favoring instead modest amendments to the Articles of Confederation to strengthen the national government with a limited power to tax and to regulate and promote trade. Others called for amendments to the Constitution before ratification. Still others favored ratification with amendments to follow in the first Congress. Some believed that blocking ratification was hopeless—the convention and the Constitution had the blessing of the most popular man in the country and the presumptive first president, George Washington—so they worked for second-best solutions.

Despite the differences, everyone in the critical camp favored the union (contrary to Federalist charges that the Anti-Federalists were foreign agents seeking to divide the United States into several confederations) and supported strengthening the central government to some extent. In other words, they conceded that there were problems with the existing system that needed addressing at the national level, a major concession that probably guaranteed their defeat.

Yet they had something even more important in common: their suspicion of concentrated power and their consequent view that the confederation of states should not be scrapped for a “consolidated” system in which, as Federalist Papers coauthor John Jay put it, the states would be equivalent to counties in the states, subordinate to the national government.

This was no melodrama, with Dudley Do-Right on one side and Snidely Whiplash on the other. History is rarely so black and white. Federalists had valid concerns about the future of liberty, including property rights, at the hands of state legislatures, which exercised the power to grant debt relief, emit paper money, and enact other forms of wealth transfers. But these concerns were likely exaggerated. (Also see chapter 1 for how a successful grassroots tax rebellion spurred the nationalists.) It’s hard to know how frequently the states tampered with loan contracts or violated property rights, although it occurred to some extent. But it’s reasonable to expect that a state known for interfering with property and contracts would lose vital and entrepreneurial individuals to those states that abstained from or minimized interfering. Who would continue to lend money in a state where the legislature would without warning grant relief to borrowers or stay court judgments on behalf of creditors? In other words, such problems would tend to work themselves out as long as states respected freedom of exit and people could vote with their feet. Creating a central government with virtually unlimited powers (despite what its backers said) seems a strange way to prevent abuses by state legislatures.

If outright confiscations of property were routinely perpetrated, we can ask the same question we asked about debt relief. Competition among states for investment, in time, should have discouraged flagrant violations of property rights. But we cannot rule out that the confiscations that occurred had something to do with the acquisition of property that did not meet Lockean standards.“Much loyalist property,” Arthur A. Ekirch Jr. wrote in The Decline of American Liberalism (1955), “found its way into the hands of a new group of wealthy landed proprietors.” Government-based land speculation was common. War, Randolph Bourne counseled, is the health of the state. It’s also the health of war profiteers. That goes for revolutionary wars too.

As for paper money, which at the time few people objected to, the story is more complicated. Several states used moderately depreciating fiat currency to keep tax rates low or in lieu of taxation altogether. In other words, the transfer of purchasing power from the people to the state via paper money substituted for the armed taxman, who could show up at the door and confiscate property for nonpayment. This is no endorsement of government fiat money or taxation, but since those were the only feasible options, paper money worked reasonably well in many, but not all, places. After all, times were different then: most working people were farmers who could avoid the money economy without much inconvenience. This aspect of the story does teach one lesson: fiat money and war are a dangerous combination.

(Before the Revolution, Americans at all socioeconomic levels got angry when the Parliament passed prohibitions on legal-tender laws in regard to state-issued paper money in the colonies. Contrary to libertarian assumption, Americans liked their paper money. The Constitution later barred the states from issuing it because of the bad experience with the wartime Continental currency, but it did not stop the states from chartering banks that could print notes, which they commonly did. As a result, growing America was awash in paper money after the Constitution took effect: “By 1819,” Gordon S.Wood wrote in The Radicalism of the American Revolution (1991), “Alexander Baring, the head of the great British financial family, could tell a committee of the British House of Commons that ‘the system of a paper currency has been carried to a greater extent in America than in any other part of the world.’”)

Just as some Federalists had (in part) good motives for favoring the Constitution, so some Anti-Federalists no doubt had bad motives for opposing it. For example, Southern patrician opponents might have feared that a strong national government would limit or abolish slavery. And Anti-Federalists who were prominent in their state governments might not have liked their positions downgraded as the states became less important in a consolidated political system. (Federalists unjustly made this charge against particular Anti-Federalists.)

The upshot is that there could have been honorable and dishonorable reasons to take either side. Similar people—such as creditors and debtors, planters, and merchants—could be found in both camps. The Federalist side may well have been an example of Bruce Yandle’s “Baptists and bootleggers” phenomenon harkening back to Prohibition, that is, an alliance of those who believed (or publicly emphasized) a moral case for the Constitution and those who expected to benefit materially from it. We should not rule out that a given individual was both a “Baptist” and a “bootlegger.”

As usual, this history is complicated. But that should not overshadow the fact that leading Federalists, those most responsible for the Constitution as written, were looking for more in a fortified central government than mere protection of life and property from hyperactive state legislators. The leading Federalists wanted a strong central government and a consolidated system because they understood those things were necessary for a continental and even hemispheric market-empire (Indians, Britons, Spaniards, French, and Russians had to be removed one way or another) and a commercial world power reaching to Asia. They sought national greatness, a new empire (to be sure, with elements of liberal republicanism) to replace the exhausted empires of the Old World.

And the leading Anti-Federalists were no mere radical democratic defenders of provincialism trying to thwart the inevitable flow toward cosmopolitanism. Contrary to common impression, they embraced commerce and world trade—albeit as mercantilists, like their Federalist counterparts. (Adam Smith’s The Wealth of Nations was just a decade old and not widely read.) They distrusted political power per se, which they associated with aristocracy, even if they could not imagine a society without it at all. If there had to be power, they thought, let it be limited and exercised over a small area through many representatives watched closely by the people—for large districts and small legislatures would mean ersatz representation, that is, rule by an elite wielding vague and effectively unlimited power. Contrary to what some historians (Charles Beard and Jackson Turner Main, for example) have believed, Herbert J. Storing wrote in What the Anti-Federalists Were For (1981),

There were very few “democrats” among the Anti-Federalist writers (or prob-ably among Americans of any kind), if by that is meant those who believe simply that the will of the majority of the people is law and that will ought to be exercised as directly and with as little restraint as possible. However, the Anti-Federalists were typically more democratic than the Federalists in the specific sense that they were less likely to see majority faction as the most dangerous and likely evil of popular government.They were inclined to think, with Patrick Henry, that harm is more often done by the tyranny of the rulers than by the licentiousness of the people. Moreover, so far as there may be a threat of licentiousness, it is to be met in the same way, fundamentally as the threat to [sic] tyranny: by the alert public-spiritedness of the small, homoge-neous, self-governing community.

Likewise, historian Cecelia Kenyon earlier wrote (“Men of Little Faith: The Anti-Federalists on the Nature of Representative Government,” William and Mary Quarterly, January 1955),

The Anti-Federalists were not latter-day democrats….They were not confi-dent that the people would always make wise and correct choices in either their constituent or electoral capacity, and many of them feared the oppression of one section in the community by a majority reflecting the interests of an-other. Above all, they consistently refused to accept legislative majorities as expressive either of justice or of the people’s will. In short, they distrusted majority rule, at its source and through the only possible means of expression in governmental action over a large and populous nation, that is to say, through representation…. Their philosophy was primarily one of limitations on power….

Indeed, the Anti-Federalist using the name Agrippa (James Winthrop) spoke for many when he said that a bill of rights, which the Constitution as written lacked, would “serve to secure the minority against the usurpation and tyranny of the majority.” These were no majoritarians.

But were they nevertheless “men of little faith,” as Kenyon dubbed them? If vast, virtually unlimited power on a national scale was what they were being asked to have faith in, then yes, and proudly so. The Federalists repeatedly argued that since the needs of the new nation were unlimited, power too must be so.“The means, the Federalists argued again and again, must be proportioned to the end, and the end in the case of the general government is not capable of being limited in advance,” Storing wrote.“As bounds cannot be set to a nation’s wants, so bounds ought not to be set to its resources.”As Alexander Hamilton, the staunchest of nationalists, wrote in Federalist 23:

For the absurdity must continually stare us in the face of confiding to a gov-ernment the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and effi-cient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative.

This was one of the Federalists’ favorite arguments in favor of a standing army. (See chapter 3.) These men were not for limited government except in the most abstract way. To be sure, they favored due process in a constrained republican system (“the rule of law”) over arbitrariness, but that is not the same as strict limits on power and scope. When Madison wrote in Federalist 51,“You must first enable the government to control the governed; and in the next place oblige it to control itself,” it was as if he were saying the genie had to be let out of the bottle in order to restrain it.

The Anti-Federalists were skeptical, as they should have been. One would expect any libertarian to be sympathetic to those who had little faith in such an argument. Unfortunately, the Anti-Federalists shared too many Federalist premises to adequately meet the argument, although they tried valiantly to expose what the nationalists were up to: “They charged that the Federalists were more or less deliberately using an ar-gument about means to enlarge the ends of government,” Storing wrote, “shifting their gaze from individual liberty to visions of national empire and glory.” Indeed, they were. They essentially said that the time had come to end the preoccupation with liberty, which was useful in the striving for independence, and turn to more important things now: nation-building.

At the New York ratifying convention, Hamilton said:

In the commencement of a revolution which received its birth from the usurpations of tyranny, nothing was more natural than that the public mind should be influenced by an extreme spirit of jealousy.To resist these encroach-ments, and to nourish this spirit, was the great object of all our public and private institutions.The zeal for liberty became predominant and excessive. In forming our Confederation, this passion alone seemed to actuate us, and we appear to have had no other view than to secure ourselves from despotism. The object certainly was a valuable one, and deserved our utmost attention; but, sir, there is another object, equally important, and which our enthusiasm rendered us little capable of regarding: I mean a principle of strength and sta-bility in the organization of our government, and vigor in its operations. [Em-phasis added.]

Benjamin Rush, a signer of the Declaration of Independence, member of the Pennsylvania ratifying convention, and the father of American psychiatry, took this a step further: he diagnosed “the excess of the passion for liberty” as a mental illness. “The extensive influence which these opinions [excited by the excess passion for liberty] had upon the understandings, passions and morals of many of the citizens of the United States,” Rush said, “constituted a species of insanity, which I shall take the liberty of distinguishing by the name of Anarchia.” To tamp down the potential for this disease, Rush advised that pupils be taught that they were “public property.”

Storing emphasized the Federalists’ subtleness in changing the agenda:

Indeed, the stress placed by Federalists on national defense and a vigorous commercial policy often seemed to mask a radical shift in the direction from the protection of individual liberty to the pursuit of national riches and glory. When the Anti-Federalists saw the new Constitution defended as having the “noble purposes” to make us “respectable as a nation abroad, and rich as in-dividuals at home’ and as calculated to promote “the grandeur and importance of America, until time shall be no more,” they feared for the principles of the American governments.“You are not to inquire how your trade may be in-creased,” Patrick Henry warned, “nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your Government.’”

Henry, who worked overtime to keep things on track, went on:

Shall we imitate the example of those nations who have gone from a simple to a splendid Government? Are those nations more worthy of our imitation? What can make an adequate satisfaction to them for the loss they have suffered in attaining such a Government—for the loss of their liberty? If we admit this Consolidated Government, it will be because we like a great splendid one. Some way or other we must be a great and mighty empire; we must have an army, a navy, a number of things: When the American spirit was in its youth [This was in 1788!], the language of America was different: Liberty, Sir, was the primary object. [These words would be more inspiring had Henry, like other southern Anti-Federalists, not owned slaves.]

When Federalists admonished Anti-Federalists about lacking confidence in the virtuous men who would govern, the Anti-Federalists scoffed. Anticipating Thomas Jefferson’s language in the Kentucky Resolution protesting the Federalists’ Alien and Sedition Acts 10 years later, they responded that confidence was not the appropriate disposition for free people toward the government. What is? Jealousy. “They ought to be so [jealous],” an Anti-Federalist said. “It was just they should be so; for jealousy was one of the greatest securities of the people in a republic.” Moreover, Agrippa added for good measure, “let us not flatter ourselves that we shall always have good men to govern us.”

The Anti-Federalists could not discuss power without expressing their distaste for aristocracy. If they seem like radical democrats, it may be because they opposed rule by aristocrats. The Revolution (as we’ll see) was as much an internal struggle against a conservative elite as an external struggle against the British. Aristocracy in the new nation was no imaginary nemesis. The Federalists complained that with the break-down in social distinctions achieved through the Revolution (apparel no longer indicated who was well-born and who was not), the wrong sort of people were populating the state legislatures, people who actually worked for a living. The remedy was a national government, which for various reasons would favor prominent wealthier men. In Wood’s words, the new system would “act as a kind of sieve” to exclude those who were “unfit” to govern wisely and dispassionately with an eye to the general welfare. To be sure, America’s aristocracy was seen as a “natural aristocracy,” one based not on heredity, but on education, virtue, and merit, which was all the more reason to have a proper vetting process. The Anti-Federalists were unimpressed.

In retrospect, the Anti-Federalists seemed destined to lose because they conceded too much. (They were also handicapped, as Maier and Wood documented, by newspaper bias toward the Federalists, who were concentrated in the cities and towns.) Anti-Federalists objected to power, but only up to a point. They were willing to accept a stronger national government, and they accepted taxation, regulation, and other government activism at the state and local level. This reduced the force of their case against the Federalists. They were arguing not about power per se, but about which level of government should have the upper hand. That made the difference a matter of degree not kind, which gave the advantage to the nationalists.“In any conflict between two men (or two groups) who hold the same basic principles,” Ayn Rand wrote in “The Anatomy of Compromise, “it is the more consistent one who wins.” Unfortunately, the Federalists were the more consistent.

The Anti-Federalists also were plagued by (at least apparent) contradictions. Some complained that the proposed new government would be too complicated to be monitored by average people, enabling the rulers to escape responsibility; others said it was not complicated enough—that it lacked sufficient checks and balances. This conflict could perhaps be reconciled by the belief (Storing suggests) that if simple government was out of the question, the second-best position was a government of effective checks and balances—which this new government would not be. Moreover, many Anti-Federalists made the dubious argument that small republics were better protectors of liberty because their populations were homogeneous: that is, a wide harmony of interests would avert battles for political advantage. But as the Federalists point out, small territories don’t necessarily have homogenous interests; farmers, merchants, and manufacturers, for example, have different interests that clash in a political arena that permits wealth transfers. The existing states already demonstrated this truth.

The dispute about levels of government, however, introduces a topic worth considering briefly. James Madison, an author of the Federalist Papers, said the states and other local authorities should be tolerated “so far as they can be subordinately useful.” He and other leading nationalists wanted the Constitution to include a congressional power to veto state laws; and they did not like that states were to be equally represented in the Senate, the members of which were to be elected by the state legislatures. In other words, they did indeed favor a consolidated system with a centralized government, and not a federation of states. This is confirmed by the absence in the Constitution of anything like Article II of the Articles of Confederation, which affirmed that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Only the need to compromise at the Philadelphia convention kept Madison and his colleagues from getting all they wanted in these matters. But they were under no illusions: they knew that the boundary between the states and national government, like the boundaries between the three branches of the national government, had not been clearly drawn and would be determined politically in the years to come. Libertarian and conservative constitutional sentimentalists, or “fetishists,” as Jeffrey Rogers Hummel calls them, display a naïveté on this score when they demand that the Constitution be interpreted either as the framers intended or as people understood it at the time.

For their part, Anti-Federalists were shocked, on seeing the preamble’s first words, “We the People,” that the Constitution was written not as though the union were a federation of sovereign states, but rather a single population to be ruled directly by a central government in an extended republic. “The question turns, sir on that poor little thing—the expression, We, the people, instead of the states, of America,” Patrick Henry said.“States are the characteristics and soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all states.”

Samuel Adams made the same point more colorfully: “I confess, as I enter the Building I stumble at the threshold. I meet with a National Government instead of a Federal Union of Sovereign States.”

This was not knee-jerk parochialism, for as Jacob T. Levy showed in Rationalism, Pluralism, and Freedom (2015), liberalism (broadly defined) has always had two conflicting approaches to protecting individual liberty and autonomy. One, the rationalist approach, stands for the proposition that liberty could best be protected by a central government applying a single liberal legal code directly to individuals over a large territory. Such a system would check potentially oppressive associations, both private and political. This is the approach ofVoltaire, Thomas Paine, and John Stuart Mill, among others.

The other, pluralist, approach insists that liberty is best protected by a layered system in which a variety of associations stand between the individual and the central government to check its power. State and local governments were counted in this buffer of intermediate entities. We find this view espoused by Montesquieu, Tocqueville, and Lord Acton.

As Levy pointed out, on paper both approaches have virtues with respect to protecting the individual. But in reality (leaving aside obvious problems for libertarians like taxation), things work out differently, and each side has generally ignored the risks its own position presented. States are never disinterested justice-dispensing machines, for reasons, among others, captured by terms like public choice, regulatory capture, and knowledge problem. And private associations, including families, fraternal entities, and religious groups, can be oppressive and costly to escape, even when not outright aggressive. Unlike private groups, state and local governments, of course, can legally use aggressive force and hence were an even bigger danger.

So neither rationalism nor pluralism can guarantee the individual his or her liberty.

It’s easy to see that the Federalists tended toward the rationalist camp and the Anti-Federalists toward the pluralist camp, though few individuals have ever been pure rationalists or pure pluralists. Some Federalists praised the move from the Articles of Confederation to the Constitution on the explicit grounds that the new national government would relate directly to the individual citizen. (This enthusiasm, however, was not necessarily out of a love of liberty; an independent power to tax people directly was understood to be the key to national greatness.) A direct central-state-to-citizen relationship is precisely what the Anti-Federalists feared; they saw the states, among other associations, as buffers between the individual and a distant ruling aristocracy. (Madison is a complicated case; as we’ve seen, he was not fond of the states, but he famously thought an extended republic would, in Levy’s words, “multiply factions to make it difficult to assemble a majority coalition in favor of any particular partial interest.” Charitably put, his was a horizontal rather than vertical pluralism. The reader may judge for himself or herself how that’s worked out.)

Levy argued that these two approaches cannot be reconciled or transcended and that the risk to liberty comes from all directions. As long as governments exist, pluralism seems the better of the two approaches, primarily because the smaller the jurisdiction the cheaper the exit. The potential to vote with one’s feet at least has some chance to exert pressure on state and local governments to minimize their burdens. The resulting competition ought somewhat to serve the cause of liberty. (Of course we today are in a different position from the Americans of 1787-88. Our political system has both rationalist and pluralist elements with no radical change in the offing. So our best hope, for now, is for each component to block the usurpations of the other.)

What was missing from the debate in the late 18th century was the anarchist perspective. By this I mean that neither side could imagine how order and prosperity could be achieved and sustained without government, state or national, without the initiation of force. Lacking this perspective, the Anti-Federalists handicapped themselves because, as noted, it meant they shared many premises about the necessity of government with the Federalists. When they were accused of favoring anarchy, they could only react defensively. No one could respond in effect: “Anarchy, yes. Chaos, no.”The Anti-Federalists needed to assimilate fully the truth that Paine (who failed to assimilate it fully himself) would formulate a few years later Rights of Man (1792):

Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural con-stitution of man. It existed prior to government, and would exist if the for-mality of government was abolished.The mutual dependence and reciprocal interest which man has upon man, and all the parts of civilised community upon each other, create that great chain of connection which holds it to-gether.The landholder, the farmer, the manufacturer, the merchant, the trades-man, and every occupation, prospers by the aid which each receives from the other, and from the whole. Common interest regulates their concerns, and forms their law; and the laws which common usage ordains, have a greater influence than the laws of government. In fine, society performs for itself almost everything which is ascribed to government.”

Government, Paine went on to say, “purloins from the general character of man, the merits that appertain to him as a social being.”

Being a political document and hence the product of compromise, the Constitution contains enough ambiguity that at times it has fur-nished grounds for limiting government power. The subsequently ap-pended Bill of Rights has helped in this regard, although it has not been an unmixed blessing, since it has also shifted the burden from justifying a claimed power to justifying an asserted right. (The Ninth Amendment’s acknowledgement of unenumerated rights has not done the work some hoped it would do.) Nevertheless, we can be thankful that occasionally government-limiting interpretations have prevailed. Let’s hope that becomes more common. But we should not overlook all the outrages that have been defended—and upheld by the Supreme Court—on the basis of one constitutional provision or another.There’s simply no gainsaying Lysander Spooner’s observation, quoted above: “But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it.”

***

Most of the chapters of this book originated as TGIF (The Goal Is Freedom) columns I wrote over nearly 10 years for the websites of the Foundation for Economic Education and the Future of Freedom Foundation. Others were first published on my blog, Free Association (sheldonrichman.com), after the TGIF column moved there. In preparing the book I have added material, amplified points, and, I hope, removed unnecessary repetition. I hope the reader will forgive whatever overlap remains.

While I was turning out these articles, I was urged to be cautious because “people need their fairy tales.” I took this to mean that most Americans grow up learning American history with a fairly libertarian slant, and we libertarians ought not undercut that narrative. If people believe that the Constitution is an extension of the Declaration of Independence, then all well and good. Keep your revisionism to private meetings.

That has long struck me as short-sighted and self-defeating. We do no one, especially young libertarians, any favors by leaving historical misconceptions intact. Nothing sets up budding libertarians for disillusionment more effectively than to send them into intellectual battle on campus armed with false history. It’s like sending sheep to the slaughter, because sooner or later they will encounter professors and students who know better. The results won’t be pretty. I speak from experience.

My interest in constitutional revisionism was sparked most directly by my friend and mentor Walter E. Grinder, after I wrote an article about the unconstitutionality of trade protectionism. He’s been a source of encouragement and reading suggestions for a long time. I could not have written this book without the inspiring example set by one of my oldest friends, Jeffrey Rogers Hummel, a first-rate historian and economist. It was he who clued me in to the importance of the public-finance aspects of early American history, something I was inclined to underestimate. For many years I’ve benefited from conversations and email exchanges with him. In many respects this book would have never been produced without the help and concern of my friend Gary Chartier. Not only did he take on the task of laying out the book, designing the cover, and arranging for its publication, he contributed to the content through our near-daily discussions, his probing questions, and his gentle but constant imploring that I get the book done. Thanks, I needed that. And thanks, also, to Less Antman, whose friendship and generosity are beyond words. I’m especially grateful for the pleasant environment in which I was able to complete this book.

Over the years I had able copy-editing assistance and helpful suggestions from Michael Nolan, Mike Reid, and Chad Nelson. This printing, in particular, reflects the careful scrutiny of Beth Cody.

Finally, thanks to all who have supported my work through Patreon and PayPal.

Of course, any errors herein are my responsibility.

Writers get themselves into trouble when they set out to write the last word on a subject. I have no doubt that there’s much more to be said on this subject, so let the conversation proceed!