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. ~ Ed.

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)

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)

[Conceived in Liberty: The New Republic, 1784–1791. By Murray N. Rothbard. Edited by Patrick Newman. Mises Institute, 2019. 332 pages.]

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.

Written by David Gordon for The Mises Institute ~ February 13, 2020

~ Discussion ~

Yes, the CONstitution was a coup d’état and was rammed through the ratification process because it would allow the tyranny we are experiencing today. This document is revered by those who knew and loved the idea that freedom and liberty would be usurped from the people who would be enslaved. ~ Diana O.

Won’t argue the point. Just ask how to govern without some basic rules? ~ Ken K.

I stopped having the answer to that years ago Ken – because they who ‘govern’ are the rule breakers! ~ Jeffrey Bennett

Basic rules are fine as long as they don’t support political tyrants over the people. ~ J. David F.

Rules don’t apply to them….instead the rules are applied from them. That is not government. It is Tyranny. ~ Jennifer R.

The basic rules are the Unalienable band Natural Rights of Man. The Unalienable and Natural Rights of Man are from Natural Law (Natural Rules). ~ C. Robbins

Their rules are applied and they have enforcers who are all to happy to enforce those rules. ~ Diana O.

Don’t forget about the crowds of “patriots” who cheer them on. What a messed up country we live in. ~ Misty G.

And don’t forget the best part of all: We’re not even free to leave this country.~  Jennifer R.

The purpose of the U.S. Constitution was to dupe the people into imagining legitimacy to a new ruling class. The constitution is not “ours.” It never was. It was a lie from day one, designed to give the illusion of “representation” and “consent.” The lie worked so well that it was heavily copied in the constitutions of the worst tyrannies in history (Red China, the USSR, North Korea, etc.). And yes, I used to revere the document too. It took me a long time to accept what it is. It is the arch enemy of freedom, not its protector. ~ Larken Rose (posted by Cary B.)

No doubt about it. It replaced the Articles of Confederation, which didn’t allow for the all-powerful central government that was created by the Constitution. They added those ten amendments to it, the Bill of Rights, as a bulwark against central government overreach, but of course, the central government and the courts have all but made those a dead letter. ~ Mike S.

The Constitution was a failure before the ink was even dry. A woman asked Ben Franklin, What kind of a government do we have? He said, a Republic, If you can keep it. WHAT!!! What did he mean by, If you can keep it? It meant that there were no safeguard or security measures to hold the corrupt & criminal public servants accountable and they were the only ones that could destroy the Republic. If the government was set to protect us and our Rights, Liberty, and Country, no outside force or government could destroy the Republic because we would be United. So he had to be talking about the federal government when he said, If you can keep it…. When Patrick Henry found out about what was going on and setting up of a government, he said, I smell a Rat……….Suppose you went to a bank and asked them, is this was a safe bank to put your money in? And they said, Yes, If you can keep it in the bank. There’s no security in place that would stop elected board members from stealing your money but you can vote them out and and vote for some other crooked board members. No one in their right mind would put their money in that bank, but yet, that’s what we have been doing by allowing a bunch of crooks to run and ruin the country. Who put the country $22 Trillion dollars in debt? The Federal Government who created the great depression? The illegal Federal Reserve set up by the Federal Government (CONgress). ~ Cary B.

I have been teaching this for years. Real glad Mr. Gordon also sees the light. Rothbard is right on but the original source documents have been there the entire time. ~ J. David F.

And there are those who claim the Bill of Rights fixed everything. Again, source documents put that lie to bed.

Richard Henry Lee to Patrick Henry (September 27, 1789)

My third letter to you on the 14th. inst. will satisfy you how little is to be expected from Congress that shall be any ways satisfactory on the subject of Amendments. Your observation is perfectly just, that right without power to protect it, is of little avail. Yet small as it is, how wonderfully scrupulous have they been in stating Rights? The english language has been carefully culled to find words feeble in their Nature or doubtful in their meaning! .. . By an Address, received two days ago from the Assembly of R. Island, copy of which I will sent you by my brother, to the federal government, it appears to me as if they intended to keep out of this Union until effectual Amendments were made—We ought in common prudence to have done the same—Does N. C. design to act in the same manner.

Even tougher on the Bill of Rights bullshit.

Richard Henry Lee to Patrick Henry (September 14, 1789)

{I have} since waited to see the issue of the proposed amendts. to the Constitution, that I might give you the most [exact] account of that business. As they came from the H. of R. they were very far short of the wishes of our Convention, but as they are returned by the Senate they are certainly much weakened. You may be assured that nothing on my part was left undone to prevent this, and every possible effort was used to give success to all the Amendments proposed by our Country-We might as well have attempted to move Mount Atlas upon our shoulders-In fact, the idea of subsequent Amendments was delusion altogether, and so intended by the greater part of those who arrogated to themselves the name of Fœderalists. I am grieved to see that too many look at the Rights of the people as a Miser examines a Security to find a flaw in it! The great points of free election, Jury trial in criminal cases much loosened, the unlimited right of Taxation, and Standing Armies in peace, remain as they were. Some valuable Rights are indeed declared, but the powers that remain are very sufficient to render them nugatory at pleasure.

The most essential danger from the present System arises, {in my} opinion, from its tendency to a Consolidated government, instead of a Union of Confederated States-The history of the world and reason concurs in proving that so extensive a Territory {as the} U. States comprehend never was, or can be governed in freed{om} under the former idea-Under the latter it is abundantly m{ore} practicable, because extended representation, know{ledge of} character, and confidence in consequence, {are wanting to sway the} opinion of Rulers, without which, fear the offspring (of Tyranny} can alone answer. Hence Standing Armies, and despotism follows. I take this reasoning to be unrefutable, a{nd} therefore it becomes the friends of liberty to guard {with} perfect vigilance every right that belongs to the States and to protest against every invasion of them- taking care always to procure as many protesting States as possible-This kind of vigilance will create caution and probably establish such a mode of conduct as will create a system of precedent that will prevent a Consolidating effect from taking place by slow, but sure degrees. And also not to cease in renewing their efforts for so amending the federal Constitution as to prevent a Consolidation by securing the due Authority of the States. At present perhaps a sufficient number of Legislatures cannot be got to agree in demanding Convention-But I shall be much mistaken if a great sufficiency will not e’er long concur in this measure. The preamble to the Amendments is really curious -A careless reader would be apt to suppose that the amendments desired by the States had been graciously granted. But when the thing done is compared with that desired, nothing can be more unlike…By comparing the Senate amendments with {those} from below by carefully attending to the m{atter} the former will appear well calculated to enfeeble {and} produce ambiguity-for instance-Rights res{erved} to the States of the People-The people here is evidently designed fo{r the} People of the United States, not of the Individual States {page torn} the former is the Constitutional idea of the people-We the People &c. It was affirmed the rights reserved by the States bills of rights did not belong to the States-I observed that then they belonged to the people of the States, but that this mode of expressing was evidently calculated to give the Residuum to the people of the U. States, which was the Constitutional language, and to deny it to the people of the Indiv. State-At least that it left room for cavil & false construction-They would not insert after people thereof—altho it was moved.

~ J. David F.

A story for thought..

Lets say I was born in a commune on the border of the US and Canada.

I had never heard of government, borders, laws or police.

So here I am living by my right given to me by the creator, I one day build a home and have a wife and family, as it is my right to “life, liberty, and the pursuit of happiness” endowed by the Creator.

I have a garden and I hunt and fish for my food and my life is simple and happy.

One day while I am fishing some man dressed in green whom I’ve never seen before steps out of the woods and asks me for my fishing license.

I don’t know what a fishing license is so he then asks me for identification.

Once again I don’t know what an identification card is.

So he then tells me that to give him my fish and that he is going to take me into custody. I reply I’ll share my fish with you but I’m sorry I must return to my family.

He decides to use force to take me into custody and because I don’t recognize his authority and the fact that I’ve been endowed with the right to self defense I defend myself.

As I do this he pulls out his weapon and shoots me dead!!

What right did he have to do so?

What law is he following and by who’s authority is he acting?

Why must I pay for my right to exist and what authority do they have to make me pay for my right to fish, have a home, cross the border or provide for my family?

He is in fact following the laws of man, and the laws of those in charge.

He is ordered to enforce them over the law of the Creator..

The laws he is enforcing are given through the consent of the majority and no amount of the majority has the right to over rule the rights given to all mankind by the Highest Authority in the Universe being the Creator..

He is in fact denying that which the Creator has freely given to protect the authority of those in positions of power..

The only thing they have to maintain that power is a monopoly on the use of force..

Their power is an illusion created by division, deceit, subterfuge and fear. Mostly fear of the threat of the use of force against you to gain your compliance..

Your contribution to that use of force is a betrayal of your family, friends, neighbors, countrymen and in fact your entire species being the human race..

You have chosen to take that which the Creator has endowed upon His creation for a pocket full of dust and shiny trinkets.

You trade your freedom for the chains of servitude to masters that wouldn’t hesitate to sacrifice you for their power and prestige.. For the illusion of authority..

Are you ashamed..

Today you can make a choice and what your choice is depends on your allegiance! Your allegiance to either those masters who use you to maintain their power, the power used to profit from the suffering of the masses or the Creator..

The choice is yours… ~ Jill J.

Samuel Bryan, writing as the Antifederalist “Centinel” stated in 1788 that the Constitution was both a coup and a criminal conspiracy. Another Antifederalist called it a bloodless revolution! Those men need to be honored today for their foresight. ~ J. David F.

…and THIS conversation will continue… ~ Jeffrey Bennett, Editor and Publisher