Defending the Constitution

In Defense of the Constitution 

By Lawrence W. Reed

Did the Constitution represent a “statist coup d’etat” as economist Murray Rothbard suggested in his impressive history, Conceived in Liberty?

It’s true that delegates to the 1787 Constitutional Convention were charged with “revising” the Articles of Confederation. No state, however, instructed its representatives that “replacing” the Articles would violate their mission. After the delegates decided that the best way to revise the Articles was to start from scratch and compose a new document altogether, they submitted their work back to the states. If any state legislature felt the Convention had gone too far, it could have rejected it. None did. Eventually, every state ratified the Constitution, peacefully and with the broad support of Americans. No riots broke out to protest a “coup.”

At some length, I answered the Rothbard argument in Reading the Articles of Confederation. I urge you to give that essay a look, especially as background to this one. The weaknesses of the Articles themselves were the subject of the former essay, whereas now I want to focus on the weaknesses of the state legislatures in the 1780s. Both elements were prominent in the case for the Constitution at the close of the decade.

The late historian Gordon S. Wood argued in The American Revolution: A History and in Power and Liberty: Constitutionalism in the American Revolution that mischief in the states combined with the flaws of the Articles to create impetus for a radical fix. I think Wood was right. He wrote,

In the mid-1780s frustration with piecemeal changes in the Articles of Confederation came together with mounting concern over examples of legislative tyranny and other political and social conditions in the states to produce a powerful momentum for constitutional change. The result was the federal Constitution of 1787.

The state legislatures during the War for Independence and from its conclusion in 1783 until 1787 were not models of limited and responsible, republican government. Though they supported independence from Britain, they failed to cough up the money that the Confederation Congress repeatedly requested to pay the troops. They weren’t idle; indeed, Wood notes that they passed plenty of other laws and appropriations:

As James Madison pointed out, more laws were enacted by the states in the decade following independence than in the entire colonial period. Many of them were simply private acts for individuals or resolves redressing minor grievances. But every effort of the legislatures to respond to the excited pleas and pressures of the various interests alienated as many as it satisfied and brought lawmaking itself into contempt.

A good deal of what state legislatures undertook in those years was, in fact, emblematic of the very statism that Rothbard opposed. They passed laws to relieve debtors and harm creditors. They levied tariffs against each other. They printed unbacked paper money and inflated it with excessive issues. They dabbled in foreign policy, sometimes in contravention to that of the Confederation Congress and the treaties it had negotiated. They quarreled endlessly over borders, navigation rights, and jurisdictional matters. They rattled sabers at each other over disputed territories, engaging in border skirmishes several times. Historians speak of this mess as “the crisis of the 1780s.”

The Constitution unquestionably created a federal establishment bigger in scope and power than what existed under the Articles of Confederation—bigger than what I myself would prefer. If I could go back in time and be a delegate to the Convention that created it, I would have urged term limits for members of Congress, a ban on direct subsidies to the states or private firms, a prohibition against a central bank, and tighter wording about “the general welfare” and the commerce clause, under which many unwarranted expansions of the federal government have been justified. But except for term limits, none of those things were in the Articles either.

How did the new Constitution address the “statism” and other mischief of the various state legislatures? It ended their paper money inflations by declaring that no state could create legal money unless it was gold or silver coin. It barred ex post facto laws, interstate tariff wars, and debtor relief that shafted creditors. It prevented them from engaging in foreign policy, including a state signing a treaty with a foreign country that disadvantaged a neighboring state.

Anti-Federalist Patrick Henry of Virginia, who opposed the Constitution out of concern for its centralizing tendencies and had declared that he “smelt a rat” at the outset, eventually moderated his view. He endorsed the effort in his state’s ratifying convention to ensure the Bill of Rights was included. Most other Anti-Federalists supported the Constitution in the end because some of their concerns were addressed, and because of the Bill of Rights.

As I explained in my earlier essay, the Articles of Confederation were on their last leg by the late 1780s. Anything less than a do-over might have kept the country together a little while longer but might have missed the opportunity to overhaul the government and still keep all the states on the same page. Some might say, “If a mere revision fell apart and each state went its own way, liberty might have been better served.” That assumes, of course, that peace, free trade, and limited government would somehow prevail. The way the state legislatures behaved in the 1780s makes that argument more than a little moot.

All things considered, I think America ended up with the best Constitution any body of people ever constructed, and I’m damn thankful for it.

For additional information, see:

Reading the Articles of Confederation by Lawrence W. Reed

Conceived in Liberty, Volumes 1-4 by Murray N. Rothbard

The American Revolution: A History by Gordon S. Wood

Power and Liberty: Constitutionalism in the American Revolution by Gordon S. Wood

How Close America Came to Collapse Before the Constitution by Constitution Street

The Not-Yet-United States by the American Battlefield Trust

(Lawrence W. Reed is President Emeritus, Humphreys Family Senior Fellow, and Ron Manners Global Ambassador for Liberty at the Foundation for Economic Education in Atlanta, Georgia.)