“America’s Counter-Revolution: The Constitution Revisited” by Sheldon Richman. 2016.
The American abolitionist, and pioneering individualist anarchist Lysander Spooner once wrote of the US Constitution “…this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.” This short quote in itself is often sufficient to make any self-professed “constitutionalist” libertarians examine their position. Yet, reverence for the US Constitution is still common in libertarian circles, in part due the Ron Paul movement’s idealization of said document. One often hears claims such as “if only the government were to consistently follow its Constitution, we would have a free society”. Often these claims rest on the unstated assumption that the document’s framers were anti-statists driven by a desire to restrain the power of government and promote widespread freedom.
One prominent libertarian who has long been critical of such views is Sheldon Richman. Richman is a Senior fellow at the Center for a Stateless Society as well as a former long-serving editor of The Freeman and The Future of Freedom, and has written for an assortment of major publications. He is also an unapologetic anarchist. With his newest book, America’s Counter-Revolution: The Constitution Revisited, Richman takes on the claim that the US Constitution is a libertarian document. On the contrary, he argues that it was in fact set up precisely to create a strong centralized government which could freely intervene in foreign affairs and economic activity.
As the title suggests, Richman sees the adoption of the Constitution as a counter-revolution, a sort of backlash against the push for freedom that led to the Declaration of Independence and fight for independence from Britain. Specifically the new document created a national government which had unlimited powers to tax, could maintain permanent debt through a central bank, and could regulate trade and maintain a standing army. In other words, the Constitution gave the federal government the power to engage in the types of state-craft that major powers like Britain were engaged in. Richman focuses his narrative on the era between the revolutionary war and the adoption of the Constitution, specifically the years in which the Articles of Confederation governed relations between the states.
Richman frames the debate of that era as being between conservative elites like James Madison and Alexander Hamilton who wanted a strong, aristocratic, central government with the potential to form a commercial empire, and decentralists who generally opposed aristocracy and elite rule. The former group would become the framers of the Constitution and the authors of the ironically named “Federalist Papers”, while the latter would write the “Anti-Federalist Papers.” While Richman shows sympathy for the Anti-Federalists, he notes their loss was in part due to their own inconsistency. Like the Federalists, they too were mercantilists who favored a more powerful central state (though not as powerful as the federalists preferred).
Additionally he notes that the Anti-Federalists often contradicted each other in their opposition to the Constitution. Some even opposed the Constitution for reprehensible reasons, such as Patrick Henry who feared that a central government could free his slaves. The tragic irony that many of this era’s defenders of liberty were slave-holders is not lost on Richman. He also acknowledges that both sides in this debate saw both governance and personal freedom as the domains of property-owning white men. He even points out that the elitism of the Federalists had its roots in the British practice of granting colonial land as a form of royal favor, creating an entrenched aristocracy.
Richman observes that the Federalists were able to use their wealth and influence to prevent the major publication at the time from publishing anti-federalist writing. Furthermore a great deal of attention in this book is given to the intentional ambiguity of constitutional language, and with it the creation of implied powers. James Madison had previously wanted to incorporate the idea of implied powers into the Articles of Confederation and oppose expressed limits of power in state constitutions.
Richman argues that the Commerce Clause was intended to be mercantilist, and that the “General Welfare” and “Necessary and Proper” Clauses are intentionally vague so as to create powers that are not explicitly mentioned. Thus Conservatives arguing for an interpretation based on “original intent” are ironically missing that the original intent was for the document to be intentionally vague opening the door for new government powers. Thus the notion of a “living Constitution” was built into the document. Richman uses Hamilton’s use of implied powers to argue for a national bank as an example. Richman sees the ease at which the Constitution grants governments new powers as cause to reject it. In a related note Richman argues that the Bill of Rights did little to recognize any rights to Americans that were not enjoyed by Englishmen of the time, and that it did nothing to address concerns of militarism or runaway government power. Instead it shifted the conversation to one in which rights were finite and powers were implied.
As the book progresses Richman ties his analysis to events in later periods. He notes that the War of 1812 was a major turning point for the longevity of the Constitution, as it instilled in the business class the expectation that the US military can and should play a role in forcibly opening markets abroad. He also discusses the ratification of the 16th amendment which grants congress the ability to levy an income tax without apportioning it among the states. Richman rejects the popular claim made by tax rebels, that the amendment was not properly ratified. Again this is presented as one more reason to reject Constitutionalism. Additionally, Richman devotes a chapter comparing the history behind the the Constitution with that of the Magna Carta and introduces the idea that a stateless voluntarist society could be an effective alternative to current system.
Despite the relatively short length of 155 pages, including notes, this book is highly informative. It manages to keep its delivery accessible, making the book a quick, easy read. As such it is a great introduction to the topic, especially for readers with libertarian leanings. Richman makes it clear that this book is intended for a libertarian audience and he frequently wears his political philosophy on his sleeve. While like-minded readers will find that this complements his analysis of the history, non-libertarians may find it distracting. That said, this should not discourage anyone interested in the topic from reading this book, as it provides a unique perspective on important aspects of American history. Furthermore it is a go-to source for anyone looking to rebut Constitutional fetishists.
