 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Powell. I'm Trevor Burrus. Our guest today is Sheldon Richmond. He's the keeper of the blog Free Association at SheldonRichmond.com, senior fellow at the Center for a Stateless Society and contributing editor at antiwar.com. He's also the author of three books, Separating School and State, Your Money or Your Life, and Tethered Citizens and the forthcoming volume, The Constitution Revisited. Today we're going to be talking about a couple of posts that you had up at your Free Association blog on one's called The Constitution Revisited, the other is called the Bill of Rights Revisited. And so maybe I'll start by just reading the opening of The Constitution Revisited post and you can then expand on it a bit for us. So you say, I am mystified that so many libertarians still see the U.S. Constitution as a landmark achievement in the struggle for liberty. On principle alone, they should have become wary in time. A document that is adored at virtually every position in the political firmament should arouse suspicion among libertarians. Well, thank you. Nice to be here. Yes, I've been in the libertarian movement for quite a long time. I won't utter the number. It's a big number. And I am surprised that there is this reverence and adoration for not just the Constitution itself, but the Philadelphia Convention of 1787 and what we call the Founding Fathers are treated sort of as demigods fairly uniformly. There is some exception made for Alexander Hamilton, which maybe we can mention later on. But there's this idea that this was a libertarian moment, that it was a major landmark in the long struggle for liberty. And I'll confess that I shared that earlier on. But as time went by, and I won't say that I was suddenly struck by lightning or had some pulling conversion on the road to, well, I guess I shouldn't say Damascus these days. I didn't have this moment where I realized what was wrong with that view. It takes time. But I'm just surprised that after all these years, I still see a huge amount of libertarian sentimentalism about the Constitution or what Jeffrey Rogers Hummel calls constitutional fetishism. Should we at least be appreciative or maybe amazed at the fact that to create the United States government, or at least the second version of the United States government, we did have a bunch of pretty smart people get into a room for four months and debate at least sometimes basic questions about the role of government, the proper use of government, the interests involved in government in a way that had not really been done before. So at least should we be appreciative that our country began or the second government began with a philosophical debate, which I mean libertarians are pretty into philosophy and most countries have not begun with a philosophical debate. Well, you know, England underwent a pretty explicit debate, maybe not at one place in, you know, one hole in one city in one year or less than one year. But, you know, there was some pretty explicit discussion about the limitations on the monarchy and government in general. I don't know that the US is unique. I don't think it was a really fair debate. I mean, that's part of what I'm trying to point out here. And I'm drawing on historians who are eminent in their field. I'm thinking particularly of all the articles that you mentioned, explicitly quote Gordon Wood, who is an eminent historian of this period, but also Merrill Jensen who did a huge amount of work on the Articles of Confederation in the first years of the United States under the Articles of Confederation and the move toward the Constitutional Convention. You could argue that it wasn't a fair debate. It doesn't really live up to the folklore. And that's what one of the things I try to point out in these two pieces. Is the Constitution, I mean, I guess we can sort of get to the heart of it. You write that the Constitution, we should view the Constitution not as a landmark and the struggle for liberty, but rather as a move to introduce elements of monarchy and aristocracy into an American political system that had become too democratic for America's upper crust. Now, on one level, it seems like you're kind of doing the Charles Beard economic interpretation of the Constitution-ish kind of thing and saying it's not even a limited government document at all. Would you say it's, is that what you're saying it's not a limited government document? No, I would not say it's not a limited government document. And I don't want to embrace, certainly not fully, the Beard thesis. I think Beard's thesis is too, you know, too much... Determinative. Economic determinism. I mean, his story is, and it's somewhat picked up by Albert J. Nock, whose work I like on the Constitution, but he's a little too much of a Beardian in our enemy of the state. He's the one who called the Philadelphia Convention a coup d'état, which I think is not far off the mark. I think the problem with Beard is that he has these men who assembled in Philadelphia in 1787 were all creditors. They held government credit and wanted to make sure they, you know, would get their full amount. That's not totally wrong, but I don't think that was the... If that was a motivating factor, it was not the only one and it may well not have been the major one. I think there was a bigger view in the minds of these guys, particularly Madison and Hamilton. They had a larger view, which is, you'll notice, I don't talk about that in the two pieces. I don't talk about the Beardian thesis at all. I think they went to Philadelphia for what you just said. The revolution was truly radical in this, and I'm using that in the sense that Gordon Wood uses it in his really good book, his excellent book, The Radicalism of the American Revolution. And the radicalism for Wood is that it was an egalitarian political and socially egalitarian revolution. And what was going on at the state level before the Constitution during the period of the Articles, is that common people were men, white men, well, of course, we have to say, but still commoners, not gentlemen, as the term was used, plebeians, were getting in the government and using the government for their particular economic interests. And people generally were interested in their particular economic interests. They weren't living up to the classical Republican model that both the Hamiltonians and the Jeffersonians saw as the proper vision for the new country. And they turned to the Constitutional Convention to, as you quoted me, to introduce elements of aristocracy, hierarchy, and even monarchy. And this even goes to Madison, as I spell out. And so they took the hierarchy back into the American system, take power away from the states, and put it into the national government and make sure the right kind of people would be elected. In other words, they wanted the system to weed out the plebeians and weed in the patricians because the patricians, the gentlemen, were seen as people who were above the fray, they didn't have to make a living. They weren't in the day-to-day hub above the marketplace to mediate among the contending individual interests. That's what they saw. Now, they believed in personal liberty. And as I say in the second piece, when I talk about the Bill of Rights, I'm not saying they wanted a dictatorship of arbitrary government as long as they were in charge. I don't think they did. I mean, they learned lessons from the British monarchy as the monarchy, not in the theory of the monarchy, but as the monarchy was operating day-to-day. They didn't want arbitrary government, but they didn't see the government that they were setting up in Philadelphia as the ultimate protector of liberty. The purpose of that machinery was to make sure the right people got in power and those people would be the protectors of individual freedom. It might be helpful here to give a bit of background or context to this because this is all, they're establishing with the new constitution, establishing a different set of rules for the structure of government and governing, which is a reaction to the rules that were in place at the time, the Articles of Confederation. So could you give us a bit of info on the Articles of Confederation and specifically the kinds of rules that they had in place that were contributing to or enabling these issues that the people drafting the new constitution saw and wanted to fix or address? Yes, that's very important because I don't see how you can judge the constitution outside of this historical context. I would go so far to say if the U.S. Constitution were the first constitution, you might say, okay, nice try. They made a mistake, but nice try. But you need to look at what came before and then it seems to me you don't say nice try. A libertarian shouldn't say nice try. What came before was the Articles of Confederation, which you can easily find online and read them. They were adopted during the Second Constitutional, Second Continental Congress in Philadelphia. And what they did was they set up what I would call a quasi-essential government, quasi-national government. The reason I say quasi is because, and this is very important for libertarians, this government had no power to tax, to lay taxes of any kind or to regulate trade. Now I call it a quasi-government because it did ultimately get funded by tax revenues, but they had to go to the states with hat in hand. And of course, the problem for the Madisonians and the Hamiltonians was that the states weren't sometimes withheld the money, or they say the check's in the mail, something of the equivalent of it. And so there was trouble raising money and there were a couple of proposals during the years of the Articles of Confederation, which was in effect eight years, not an insignificant amount of time, where they tried to get a tariff, like a 5% tariff for the national government so it would have some independent source of revenue. But this would get vetoed by one state or another, Rhode Island, I think, New York. And under the rules, any amending of the Articles of Confederation had to be unanimously approved by the 13 states, now states. It was called the United States of America, by the way, by then. And it had essentially only one branch of government, namely the Congress. The Congress elected the executive, and he was known as the president of the United States. So actually George Washington was not the president, or about what, some like 10 previous presidents. I think John Hansen is usually regarded as the first because I think he served his full term was during the period of the Articles. I think the very first president, he straddled. He was president right before the Articles took effect and then right after, sorry, sometimes not counted. But anyway, be that as it may, we had several people who were known as presidents of the United States, but they were members of Congress, sort of like a prime minister. So there was not a separate branch. Now, the story we're all taught is that there were severe problems during these eight years. One of the great myths of this period is that states were erecting trade barriers against one another, tariffs against one another. And this is a great myth, as Jeffrey Hummel shows. It's not the case that New Jersey would put up trade barriers against New York, et cetera. All that happened really was that on a couple of occasions, a state would say, let's say New Jersey would say that European goods that come through New York will have to pay a duty. In other words, it was aimed at European goods, not aimed at New York goods or other American goods. In other words, the United States was already a free trade zone, which bashes one of the great myths about the Constitution, that the Constitution was needed to create a free trade zone. Now, here's another bit of proof for this. Alexander Hamilton argues in the Federalist papers, and I forget what number it may be, 73, that he says, if we adopt this Constitution, we could treble the tariff. That's a pretty big admission. See, I think what he was saying was, as long as the states were more or less independent, there would be competition toward economic freedom, toward free trade. States would be lowering any tariffs that they had in competition. And he was calling for a cartelization of the states in order to get the tariff three times as high. And I think that's what we can look at the Constitution and move toward cartelizing the states, but not in the interest of people in the states, but rather this national, like I say, this national government that would hover above the great fray and mediate all these contending interests. Now, you mentioned, because you mentioned Hamilton, and you do, and you mentioned previously that he might be a little bit of an outlier, but when we're talking about interpreting what the Constitution sort of became, I think there is no reasonable argument that the Constitution was written to increase the powers of the national government. That's, I think, beyond dispute. The question is how much sort of a runaway or the intent behind some of these framers or the body of them as a whole wanted it to be substantially larger than maybe people think or our current story. Because Hamilton's a bad example, as you kind of alluded to previously, and it's kind of weird to put into the constitutional mix at all because in mid-June of the convention, he gave essentially a speech saying he wanted a monarchy that was very similar to England, and no one seconded his speech, and then he left the convention for almost the entire convention and didn't come back until September. New York didn't actually even have a delegation there for most of the time, and he agreed to sign the Constitution, but it was clearly not what he wanted out of the mix. So is using Hamilton's desires for troubling the terror for something like this a really good use of trying to figure out what the document means or what the intent behind it was? Well, of course, Hamilton is a major contributor to the Federalist Papers. He and Madison Jay only contributes relative to few. So he's a huge campaigner for the Constitution. And I think that somewhat offsets your point about his having left. No, did he want a stronger executive than, say, Madison did? Although Madison is not totally innocent in this regard, and I guess we'll get into that. Sure, he's further out on the spectrum, if you want to call it to the right side of the spectrum, than Madison is. Jefferson has Madison's ear to a large extent. So Madison is sort of in between, trying to find some balance, I think, between Jefferson and Hamilton. But it's his plan. The Virginia plan is his blueprint. And that's what they work from when they got to Philadelphia. I should mention, when they got to Philadelphia, their mandate was to amend the Articles of Confederation. As I said, that requires a unanimous consent of the states. When they got there, they locked the doors. The public was not allowed in. And they tore up the Articles Confederation. They hardly transferred anything from it. And then they changed the rules of ratification, where you only needed nine states, not the unanimous. So we should say that as far as the historical background goes. I think it's important to realize what they were doing there. I think that helps Knox's theory that this was a coup d'etat. Yes, but the counter to that is they knew that they were doing this to some extent. You look at the mandate from the Continental Congress, which was issued in the fall of 1786 after the previous collapse of no one showed up at the convention to amend the Articles in the early fall of 1786. So it does say for the purpose of amending the Articles. But the way they tried to cure this defect of amending the Articles was to create a ratification system that was going to be more populist. Because the Articles were ratified by the people in the way that the Constitution was. So does the ratification system cure the defect of this sort of coup d'etat theory? Well, maybe formally it might. However, looking back with public choice lenses, I think we can say that it wouldn't do that entirely. Pauline Mayer in her book, Ratification, says there was some hanky-panky on the part of the federalists. They tended to control the mail. They were more concentrated in the cities, the urban areas. They controlled newspapers. And they had some advantages in stifling the debate of the so-called anti-federalists. I mean, the very terms federalists and anti-federalists are, I think, go to show what was going on there. I mean, the true federalists, you could say, were the anti-federalists. Can you unpack that a bit for us? Well, the Hamiltonians and the Madisonians, and I will combine them here because I think, given the federalist papers, I think we can combine them, they were proponents of what came out of Philadelphia. They called themselves federalists. Federalism was a popular idea. One thing I wanted to mention, and I think helps shed light on this, one thing that Madison did not regret that he wanted was a federal congressional veto over state laws. So when we're looking at the differences between Hamilton and Madison, let's be careful not to overstate them. Sure, they had differences on what the executive should be. Hamilton seemed to have his taste in monarchy, but as my article points out, as time, part of Madison's, and he says this privately to people, part of Madison's motive is to bring some monarchical elements back into the system, because they felt they had thrown the baby out with the bathrobe. So is that what we are? The monarch in theory was supposed to be this impartial arbiter of interests, and even though it didn't work out that way in practice with the British King, he still hoped to have that element there. So that's part of his motive. So he's not as different from Hamilton as you may think. It's different, but it's not exaggerated. Is that what we ended up getting though a bit with? It didn't work out to have Congress have a veto, but judicial review functions in a similar way? Well, I don't know how much you foresaw that. That didn't happen immediately for judicial review. There was debate over that. There was concern in the states on the part of the small D Democrats that the courts were beginning to be the mediator that originally the state legislatures were, and people didn't like that because judges weren't elected, state legislators were. So the radical Democrats didn't like that the judiciary was emerging as that. Hamilton, I suppose, I mean Madison, I suppose would have preferred that, but I don't know how soon that takes effect once the Constitution has been ratified. We do get the supremacy clause, which is a little bit of a concession that Madison gives that says that the Constitution and the laws and treaties of the past there under shall be the supreme law of the land. But that only was when they had concurrent jurisdiction over matters with which is this big sort of preemption question of modern American law. But yes, it is true that Madison wanted to be able to veto state laws because as you kind of pointed out previously, he thought that states were prone to craziness. The way he would describe it is something like a fervor of interests and faction taking over states in order to take, say, debt relief, point coin, print paper money to take, you know, to alleviate debts and all these things. But isn't that something that libertarians should be against? I mean, like, if the, within the state of, say, Massachusetts or when we had Shays Rebellion but also all throughout New England, we did have a constant debtor-creditor struggle and it was whoever was kind of controlling the legislature at different times was going to basically suck the other side dry in different ways. That's something we should be against too, correct? That's a good point. By the way, Shays Rebellion just was on the side. I think that was more of a tax strike than a strike. Yes, yeah. But they were definitely debtors. They were losing their farms because they weren't, they couldn't pay the taxes. So, but leaving that aside, no, you make a very good point and I say something. I only had a chance to say it in the sentence or two in this piece, the Constitution revisited. I agree with you, I am not approving of the idea that the state legislature should be an auction house where you're able to go and get what you can't get in the marketplace, like relief from debt and things of that sort. But I'm equally opposed to what Madison and Hamilton wanted in place of that, which was their allegedly, and I stress this word allegedly, impartial ruling elite. I mean, Madison, Hamilton makes the argument that even where he was a working lawyer, so he was not, you know, well-born and he was not a gentleman, meaning he just could live a life of leisure. He was an illegitimate kid, yeah. He was a lawyer, so he had to make a living. And when he was arguing that we need people who are not stuck in the, you know, in the mud of the marketplace every day and therefore having their interests skewed to their own particular, you know, circumstances, people would say, wait a second, you're a lawyer. You're living at law. He's just, oh, no, that's different. The learned professions are not self-interested. We're like the gentlemen. We can hover above the fray and be impartial. Now, you know, the anti-federal scoffed at this. They were early public choice types. And they said, no way is the ruling elite impartial. That's a joke. And they argued that when the bank of the United States was being debated and, you know, Robert Morris was talking about how, you know, the wise men were impartial. The anti-federalists laughed at them or the Jeffersonian types laughed at them. So I'm saying it's a false alternative. This hyper-democracy where you can use the legislature to get what you can't get honestly in the marketplace. That's, we don't like that, but we also don't like what the alternative being proposed by Madison and Hamilton, which was this elite, this patrician elite that is thought to be impartial. Well, I'm trying, yeah, the patrician elite thing is, and that definitely occurred those debates. And that was a big part of just theories of what representatives and people in the government are supposed to be with the amount of leisure that was needed to study, you know, Greek systems and Plato's Republic and things like this. But they did have a large debate where eventually they came out to pay the members of the government. And they came down on the idea that they would pay the members of the government even though it was not only the case that people with enough money and reserve would serve in the government. So they did try to actually counter that a little bit. And that other debate was whether or not the states or the federal government would pay them and it ended up being the federal government because they wanted to be too dependent upon the states. But therefore, individual normal people, to some extent, could serve in the government without having a reserve of cash. Right, and look, the Jeffersonians didn't mind that regular people were getting into the government. They just wanted them to be more civic-minded than they were. So you do have a divide over whether the common people should be in the government to be elected to the legislature. You have a division between the Madison Hamiltonians and the Madison Sonians and Hamiltonians on the one side and Jefferson on the other. But they still thought people were not sufficiently civic-minded. They weren't classical Republicans. One thing that Wood points out is that in the dying days, every founding father was upset with the country. They all thought that the revolution had been squandered, that it wasn't what they wanted. Because people were too concerned with their own commercial affairs and they weren't, in their view, civic-minded. They weren't living the lives of classical Republicans. Isn't that what every generation thinks? You could find similar stuff like that from the Romans talking about the kids these days. They're not wrestling in the nude anymore. So is that specifically a critique of anything going on then? That's what older people always think. Well, but I think, in a way, they were right. I think they misjudged human nature. People are, and I don't say this as a criticism, people are interested in raising their families and improving their material condition. What is this idea of the general welfare? If we're not going to talk about it in terms of sum, and I use the word sum here, S-U-M, metaphorically, the sum of the individual welfare. The classical Republicans of early America seem to think it was something separate. So, from their point of view, maybe their complaint was valid. It wasn't just the old geezers saying what they always say. Is it really a big criticism, though? If they did, and I agree that they did have an idea of the civically-minded person who was qualified to hold office in different ways, but if we're going to have a government, do we want to have people like that in government more than people with very localized interests who aren't civically-minded? I mean, we could talk about whether we're going to have a government at all, but if we're going to have a government, will we want better people of some sort in that government than otherwise? Well, I think this gets to whether you can actually have a government worth having. Because, you know, who are these people? Who gets to define what the better type is? I don't... You know, what are people supposed to do? What were the civic-minded people supposed to do that the other people weren't doing when they got into office? You know, what is this unique insight that certain people are going to have in terms of ascertaining the public interest? Number one, so it's an epistemological issue. And number two, what incentive do they have to achieve it, even if you assume the first part that they know what it is? I mean, this is a public-choice issue, right? That somehow there are people, and we just got to find the right people who have this unique insight into what the public interest is. And number two, they'll be uniquely dedicated, single-mindedly dedicated to achieving it. They'll have no interest of their own. They'll never use power for their own glorification or profit or, you know, any other objective that they might use it for. Well, could we make an argument say that, okay, so these elites aren't necessarily going to be less self-interested than anyone else, that attorneys are just as interested in advancing the interest of attorneys as bricklayers are of advancing the interest of bricklayers, but that at least these people are more educated, have more historical knowledge, say, or in a modern context you could look at it and like Brian Kaplan's work on the myth of the rational voter, you know, that if you have, you might get better policies if everyone has a deep understanding of economics, at least because the, you know, their motives may still be the same, but they're going to at least have a better sense of like how policies might play out in the real world. So it might not be perfect, but it would be marginally better to have people with this body of governing and civic knowledge governing than populism. But I feel like we're venturing into the nirvana fallacy here because the question is, how do you do that? Maybe that sounds really good. Does that mean only PhDs in economics ought to be in Congress? But we know that's no guarantee. Gosh, Paul Krugman has a PhD in economics. So how do you actually put flesh on those bones? I don't see it. You can talk in really abstract terms about, yeah, only people who understood economics were voting on these bills would be better off. I can agree with that, who really understood economics. Does that mean Austrian? Does that mean, you know, the Friedmanite? I mean, how do you do that? I wanted to go back to the Federalists and the Anti-Federalists because you talk about this in your piece a little bit. So the Anti-Federalists, which I completely agree, had very many of them. There's a lot of Anti-Federalist papers, but many of them had very poignant things to say about the Constitution that ended up being correct. What were some of those things that the Anti-Federalists said about the Constitution? Yeah, and this is good because it takes us into the Bill of Rights, which I hope we will get some time to talk about a little bit because one of their big complaints was there was no Bill of Rights. Now, this is very interesting. A Bill of Rights was not discussed at the Constitutional Convention, the Federal Convention, until the closing days when George Mason, who would go on to become an Anti-Federalist, raised the issue and every state voted down, I guess a resolution to consider a Bill of Rights. Every state, unanimously, their delegations in the convention now voted down a proposal that they had a Bill of Rights. But people were surprised that there was no Bill of Rights, according to Wood, and the people at the convention were surprised that the people outside the convention were surprised. They were surprised that they're being surprised. They didn't seem to think that was a big issue. It reminds me, as I say in the piece, a little bit of Alexander Hamilton's explanation for why God is never mentioned in the Constitution. Somebody asked him, and there's no reference to God, and he said, we forgot. Now, with the Bill of Rights, apparently, you didn't forget. They just said, no, we don't need it. Now, there were Bill of Rights in some of the state constitutions, so it wasn't some kind of new revolutionary idea. They were certainly aware of that. But their view was, well, the Constitution is a Bill of Rights in itself. Number one, it's a Bill of Rights against the state power, the state legislature's power. That's how Madison saw it. And Hamilton argued, well, why do you need a Bill of Rights if the federal government and the national government can only do what is explicitly authorized to do and can do nothing else, then that's a Bill of Rights. How can it regulate the press if there's no power for it to regulate the press? Now, I believe this was sophistry. I don't think Hamilton actually believed it, and it's certainly not true. There are unenumerated powers in the Constitution, and I don't care how many times Madison and his followers today say he set up a government of few undefined powers. That is nonsense, and I'll give you one knockdown proof, as I say in the piece. Eminent domain. There's no express power of eminent domain in the Constitution. How do we know the government had it? Because when they added the Fifth Amendment, there's the taking clause which puts some limits on eminent domain. It says it's got to be for public use and there's got to be just compensation. We know how well that's held up. Go ask Mrs. Akilo. But that point aside, obviously, take away the Fifth Amendment, there's still the power of eminent domain. It didn't grant the power of eminent domain. It simply put some limits on an unstated presumed power. And if it had that power, it could certainly have other powers that are unenumerated. This is nonsense. This was a document of express enumerated powers. And in fact, when we get to the Bill of Rights, I guess I'm jumping ahead here. So lack of Bill of Rights was one thing. The Aina Federalist, that wasn't even their most significant complaint. They picked up on it because people in the ratifying conventions said, hey, why isn't there a Bill of Rights? And they recommended, the conventions actually recommended a total of 200 amendments. Some of them were Bill of Rights, the kind of material you'd put into Bill of Rights. But the Aina Federalist had other, and I think far deeper, more serious complaints about the very structure of the government being set up. They thought the taxing power was wide open and comprehensive. And by other way, the Supreme Court later on agreed that it's an all-enbracing power, all-encompassing power. In the later income tax cases, they say the government has the perfect power to basically to tax anything. There was an exception on it. I think they can't tax exports, or states can't tax exports. Exports are a couple of exceptions. They complained about the supremacy clause. They complained about the general welfare clause. They complained about the necessary and proper clause. They had many, many complaints. And in a way, they got bored off. They put all their eggs, unfortunately, not all their eggs, but when it came to arguing with the public, they put an awful lot of weight on the Bill of Rights. So eventually they said, okay, we'll add a Bill of Rights to shut you people up. That's what Madison had in mind, and what the other federalists had in mind when they agreed to go along with adding a Bill of Rights. And the Bill of Rights did not address any of the deeper concerns of the federalists. And this goes to my mystification about how I'm being mystified by libertarians. Libertarians who were committed to the Constitution act like the anti-federalists didn't even exist. They hardly ever talk about them. They were the most libertarian people of the day. Some of them certainly were close to being people we call libertarians. And yet, if you're committed to the Constitution, you have to pretend they don't even exist. And I can't understand that. It's true to some extent, but the anti-federalists had a massive influence on the nature and course of government over the next 30 years from 1789 going forward. I mean, the anti-federalists had a bigger... They punched above their weight going forward, and I agree with you they deserve a lot more respect. I'm going to push back on your imminent domain point, though, because... So there are implied powers, and there are... You can call them unenumerated powers of the federal government, because the imminent domain clause says, Nor shall private property be taken for public use without the payment of just compensation. So it implies that you can do that. But one way of looking at that is a corollary of something like the post-roads clause in Article I, Section 3, which gives the federal government the power to make post-roads and also to do things necessary and proper to making post-roads, which could include imminent domain. So it's actually not implied totally that some of the powers of the enumeration of the powers in the Constitution might include imminent domain as a thing. So when there is imminent domain as an implied power, as a corollary to an enumerated power, and when they do it, they have to pay just compensation. I'm not sure it's as much of a knockdown point as you make it, but you are correct that there are implied powers in the Constitution and that any federal is very, very correct to say that the necessary and proper clause would be abused, to say the least. Yeah, like I said, they were early public choice thinkers, and I think they made a big mistake strategically in putting too much weight on the Bill of Rights once the Bill of Rights came out. Then they looked at it and said, this is like whipped cream. It's air and some sugar to distract us, but it doesn't address our concerns. But by that point, it looked like they couldn't take yes for an answer. Right? They said, we want a Bill of Rights. We want a Bill of Rights. Okay, here's a Bill of Rights. Oh, wait a second. That's no good. We want these other things. They just blew the strategy. But as far as implied powers, I mean another telling episode is when they're debating what would become the Tenth Amendment. Okay, and constitutions love to put a lot of weight on the Tenth Amendment. Well, some of them do. I don't. Okay, so basically it says, powers not delegated to the national government or a reserve to the people and or the states. But there was a representative from South Carolina, Thomas Tudor Tucker, who made an amendment to the amendment. He said, I want to insert the word expressly. Powers not expressly delegated. Who stood up to speak against it? Madison. He knocks it down in the committee. He knocks it down in the committee as a whole in the Congress. And he argues there have to be powers by implication. That's his term. Any constitution must have powers by implication. Now, here's the irony of that. You may say, well, of course it does. He said, otherwise you'd have this infinite list. And he's right about that. But I will always learn that Madison was the man who argued against implied powers. When I listened to libertarians type constitutionalists, they love to talk about there are no implied powers. And they'll cite Madison saying the powers are few and defined. But here's Madison is the father of the implied powers doctrine. And yet, why don't libertarians know that? I think that Madison's view of implied power is a little bit different. If you read some of his writings where you basically, it can't be a great and independent power. It has to be incidental to the carrying out of something else. And the words necessarily proper come from old agency law. So if I went to you and I said, hey, Sheldon, I'm going to let you run my store for a while. You can do all things necessary and proper to running my store. That implies certain things that I don't have to state that you're allowed to do pursuant to running my store. But they can't be bigger than running my store. That's like the, it can't be a great and independent power. So this is one reason why I say, like, saying that you can set up a single-payer health care system pursuant to the commerce clause is ridiculous because you wouldn't embed a single-payer health care system in the commerce clause. It's not incidental to running commerce. But on the other side, you can look at a case like United States v. Ferger from 1919 wherein they ruled that this is a really clever case, actually. And I think Madison would agree with this, but this is an implied power. So a man was counterfeiting bills of lading to extract loans from banks to say, I have shipments of goods, but he counterfeited those bills of lading and then he was defrauding people and then the federal government brought charges against him and he said, under the commerce clause, he said, no, you can't get me under the commerce clause because there was no commerce involved. I made up the commerce. The commerce clause cannot reach made-up commerce. And the court said, ha, clever. I mean, it was too clever by half, but they went to the Supreme Court and they said, this is clever, but clearly Article 1, Section 3, Clause 18, the necessary and proper clause, this is the kind of implied power you give. So they basically say, you're right. This is not under commerce clause, but it is under the power that's necessary and do things necessary and proper to regulating interstate commerce. And I think that's what Madison would have thought the commerce clause meant. So he is the father of implied powers, but not to the extent that we can set up, you know, no child left behind and all these things. He probably should have been wiser to realize that that would have happened inevitably. Well, yeah. What I was going to say in response to that is that Madison then at best is revealed as highly naive, which is not his reputation. And the inner federalists, on the other hand, are revealed as highly sophisticated. I mean, anticipating. Prophetic. Buchanan and Tullich. Yeah, prophetic. I mean, they said you're going to hand these kinds of powers to the people that are going to gravitate toward government. I mean, that's effectively what they were saying. And Madison was able to get away with saying, I don't know, in the great republic, you know, ambition counters ambition, and it's all going to be fine. Never thinking that maybe ambitions will get together and conspire together, right? That they'll cartelize. So again, why does he have this reputation among libertarians? I can understand conservatively liking him, but why do libertarians think that he's some sort of demigod? Well, should we, I mean, should we at least say, I mean, I guess, yeah, we shouldn't think he's a demigod, but at the very least, on the size and scope of government, of the federal government, aside from the slavery issue, which, I mean, is a very big aside, but in terms of how big the federal government itself was, it did a pretty good job for about 120, 130 years, which is hard to say has ever happened much in human history, like a government on a federal level that was as small and relatively contained as the federal government was under the constitution before the progressives and the new dealers got their hands on it. Yeah, you know, as Hummel likes to put it, the federalists got their constitution, but the inner federalists got the interpretation for a while. And I guess we can attribute that maybe to just the general tenor of the population, the people were distrustful. I mean, they went with the constitution. Don't forget, a lot of it had to do with the fact that Washington was the president of the convention, and then he was going to be the first president. Everybody knew he was going to be the first president. They tailored Article 1 to Article 2 to the expectation that Washington was going to be president. I think they let a lot go. I mean, this is a naivete also, because he's not going to live forever, even if he can hold the office forever, which he couldn't. Well, he might have, I guess, until he died, he didn't. But there was naivete there thinking, okay, we'll let it slide because it's going to be Washington. I think there was some of that. But I think people were distrustful, and the federalists did not get their way on a lot of things. But that wore down. Eventually it wears down. New generation comes along, and they see government differently, because they're further from the revolutionary generation. I think that's all to be expected. Doesn't Jefferson famously say that the natural order of things is for government to gain and liberty to yield, to gain ground and liberty to yield? And they set up a system that made it easy. I think it also set up the Constitution set up a system that made empire inevitable. They couldn't have built an international empire under the Article of Confederation. And they had empire on their minds. Maybe it's not exactly the empire we have today, but an earlier article called Empire on their Minds, and they had a very expansive view of what the government's role should be in trade. For them, free trade meant the government goes out and opens markets with gun boats if necessary. We get the War of 1812 under Madison, who said all these great things about how bad war is, and then the war happens, he then goes to war. So I think they had a much more expansive view of government than most libertarians seem to understand. And this is why I'm trying to bring attention to this. How much of this decline of liberty or growth of the state over time is the fault of the specific drafting of this Constitution and the rules that they set up, and how much of it is just inevitable with any text. Because, I mean, so the Constitution is just words on paper. It doesn't mean much on its own. It certainly doesn't have any powers on its own. It's always just a piece of text that men and women are going to read and pay attention to or not pay attention to or interpret in different ways. And I mean, if there's one thing I learned as an English major taking lit theory courses, it's that the meaning of a text is rather malleable. It's hard to nail down. The text doesn't assert its own meaning easily. So you talked about, I mean, they had empire in mind, but outside of that, could they have reasonably done a better job? Is it possible to construct a Constitution that is actually going to keep government in check, knowing that government is made up of people who have their own interests and their own desires for power? Or is that, to some extent, just a fool's game? Yeah, great point. I think it's largely a fool's game. I think we can distinguish. We could say better and worse. Look at the Articles of Confederation. No power to direct taxation. I mean, it was really, truly indirect taxation. They had to go to the States and say, give us money. It would be hard to do what they wanted to do without the power of taxation or the power to regulate trade. Madison, according to his biographer, Ralph Ketchum, 12 days into the period of the Articles, when Madison is a member of the Continental Congress, he's looking to expand the powers of the government. And there wasn't much to work with the Articles. And he never made any headway, because there just wasn't a lot to work with. Now, maybe they would have figured with time, maybe they would have figured out things to do. But you're right. No constitution, no law can interpret itself. I mean, I think constitutionalists and libertarians, I think the ones that are still stuck on the Constitution, I think full prey to this, they act like you could sort of program a computer with the interpretation, whether they're originalists of whatever strand or whatever their philosophy is. Somehow you could put that into a computer, and then any time a dispute comes up, you feed it in, and it's going to give you the infallible, proper interpretation. Well, we know there's no such thing. First of all, who programs the computer? What's that person's interpretation? I mean, how do we vote? I mean, how do we know? You know, that's ridiculous. So I'm a Victor Steinian on this, right? Rules don't interpret themselves. And even if you offer an interpretation, that's subject to interpretation. Now, we have to not forget public choice. I think any good libertarian has got to be a good public choice theorist. Who's going to be gravitating toward government power? It's going to tend to be people who are going to want to give interpretations that broaden the powers. That's just the way to bet. And so I think in the end, it is a fool's game. We shouldn't be surprised by what happens. And we shouldn't be surprised that even if we amended the Constitution today and put in only what we think are libertarian-sounding causes that 50 years from now, libertarians then will, I think, be making the same kinds of complaints. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more about libertarianism and the ideas that influence it, visit us on the web at www.libertarianism.org.