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How the Framers Intended for a Bigger National Government to Enhance Liberty

Last week I observed that the redrafted relationship between states and the national government under the then-proposed Constitution was not a constant-sum (or zero-sum) game in which states lost whatever the national government gained. By solving coordination and cooperation failures between the states, the creation of a more centralized, powerful national government in those areas of interstate failure, actually effectuated state-level policy goals.

So, too, anti-Federalists uniformly styled the creation of the national government under the Constitution as a threat to liberty (relative to the Articles of Confederation). While that was certainly possible, and the Anti-Federalists had a legitimate concern, their critique misses an important feature of the story.

As before, it will not do to think of “liberty” at one level of government only when comparing outcomes under the Articles of Confederation with those under the Constitution. The argument that a larger, more energetic and centralized national government actually increased liberty comes to the fore when we think of national power together with state power.

We need first to recall states were as cash-strapped after the Revolution as the national government under the Articles of Confederation. Taxing commerce was as attractive to states as it was to the national government. Indeed, imposing taxes on goods merely in transit through a state to another state would effectively make the citizens of other states supply revenue to the transit state. Retaliation threatened to spiral out of control, suppressing free commerce among the states. States struggled more generally with factions using legislative power against rival factions, and criminalizing political disputes. As a result, states acting largely on their own were not the best guaranty of liberty in the nascent country.

The most direct effect of the national government increasing liberty overall under the Constitution relative to the Articles comes in national-level restrictions on state powers in Article 1 Section 10 of the Constitution. Restrictions imposed on state bills of attainders, ex post facto laws, and laws abridging the obligation of contract. Only slightly less direct are the restrictions on state taxation of interstate commerce without the consent of Congress in the same Section.

By placing interstate taxation under national control, the U.S. Constitution effectively freed the channels of commerce between the states. States had engaged in tit-for-tat taxes on imports from other states. Experience suggested that state-level beggar-thy-neighbor policies would only increase in the future, hindering the development of free trade between the states.

So, too, the national guaranty to each state of a “republican form of government” suggested possibilities, if never really utilized in practice, for national government intervention in support of state-level republican liberties.

The most significant national guarantee of state-level liberty, however—at least outside of the later-added Fourteenth Amendment (and perhaps even then)—came not as a direct limitation on state power, but by reading a negative or dormant implication of one of the powers delegated to Congress in Article 1, Section 8.

While Article 1, Section 10 expressly limits state taxation of interstate trade, the Constitution nowhere expressly limits state regulation of interstate trade. (Article 1, Section 9 limits discriminatory commercial regulations at the national level preferring one port over another.) And states can use regulation of interstate trade for protectionistic purposes almost as easily as they can use taxation.

By delegating power to regulate interstate trade to Congress, the Constitution’s framers provided Congress the power to intervene against state regulations of interstate trade. Congress, however, would have to act to strike down state regulatory impositions on interstate trade.

More controversially, U.S. Courts effectively made this negative implication of congressional power over interstate commerce into a self-executing provision by interpreting the affirmative delegation to Congress as empowering courts to strike down state regulations of interstate commerce, even when Congress had not regulated.

Whatever the textual merits of the judicial decisions, the effective result of the “dormant commerce clause” was the creation of a judicially-enforced national free trade zone. This undoubtedly created a much more-effective restriction on state regulations of interstate commerce than would have occurred had enforcement required affirmative congressional actions.

Anthony Peacock underscores the freedom-enhancing aspect of the move from the Articles of Confederation to the Constitution in his recent book, Vindicating the Commercial Republic: The Federalist on Union, Enterprise, and War: “Stripping the states of a host of powers over economic and commercial development that they enjoyed under the Articles” resulted in increasing the scope available for entrepreneurial activity. Freedom from state-level over-regulation as a result of creating a more-powerful national government liberated enterprise and so facilitated the free-flow of commerce.

By limiting national power to areas in which state powers interacted pathologically with those of other states, or could be exercised pathologically within a state in such a way to affect “national honor,” the creation of a stronger, more centralized and energetic national government could widen the scope of liberty rather than reduce it.

Seeing this, however, required the summing together of state and national government power. Once summed, then a comparison of the whole under the Articles of Confederation with that under the Constitution.

Notable as this aspect of constitutional reform was, it would be inaccurate to herald the liberty-enhancing aspect of the Constitution as the only dimension of the shift. For example, the Constitution also aimed expressly to increase the effective extraction of tax revenues from the population. This was, after all, the point of empowering the national government to act directly on individuals rather than requiring it to work through the states.

Similarly, the point of centralizing tariff policy in the national government was to side-step the implications of state tariff competition. Creating, as it were, a national-level monopoly in tariff setting would allow greater extraction of tariff revenues under the Constitution than under the Articles of Confederation.

Interstate pathologies are a recurrent topic in The Federalist. This is natural given that these pathologies prompted much of the interest in, and demand for, a new Constitution. Commentators often mistake the distinctive or novel elements of the Constitution, however, for the most important features of the Constitution.

This is a subtle, but critical mistake.

On a host of policy dimensions, states did not interact detrimentally with each other; policies adopted in one state did not affect policies adopted in other states. Of these residual powers the Constitution did not differ from the Articles of Confederation. So these powers were little discussed at the Constitutional Convention, in The Federalist, or in state ratification debates.

As suggested by the well-known “Tiebout model,” policy diversity is efficiency maximizing where policies do not require cross-jurisdiction coordination or cooperation. But states already enjoyed this diversity under the Articles of Confederation. The framers did not need to justify the usefulness and necessity of local laws and administration for local purposes.

The trick the Constitution aimed to secure was to nationalize policies where inter-state interaction created interstate pathologies, and where intrastate pathologies that implicated national concerns. But it also aimed to allow states full reign in matters that do not create national or interstate externalities. In so doing, the ironic result is that the increase in national power could actually increase overall liberty for the country.

Reader Discussion

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on May 14, 2019 at 09:33:51 am

I'm not certain liberty is the right consequent here. Welfare seems more apt. What Rogers describes is the purpose of a common market and need not entail a political union with a complete apparatus of government and charter of individual rights. Besides, wouldn't Coasean theory suggest that at some point the states would have recognized the benefits to a non-pathological approach to interstate commerce and agreed amongst themselves not to act pathologically? As for entrepreneurial liberty, isn't it possible that a state imposing tariffs in order to protect domestic industry would rather increase that? See, e.g., the tariff against Britain enacted by the first Congress. More fundamentally though, power can always be used for good. Giving one person power over another can, if the power wielder is good, increase the other's liberty, welfare, happiness. That is always a possibility and there are historical cases of it. So why in the world would anyone ever hesitate to empower someone to prevent "negative externalities"? Such power can only enhance liberty and welfare, yes?

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QET
on May 14, 2019 at 09:48:48 am

It strikes me that roger's first essay would have been better received had he not argued that COTUS increased (or did NOT decrease) State Power. This second essay more closely approximates the actual consequences. However, as QET says above, it may have been better to argue that COTUS improved STATE welfare - not necessarily liberty as the history of the times provides much evidence of legislation "limiting' the liberties of the citizenry. Was there some incidental, mind you, not necessarily "consequential" enhancement of liberty or "perceived liberties? Clearly, there was an increased sense of greater economic liberties BUT......

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gabe
on May 14, 2019 at 10:16:10 am

The dormant commerce clause is probably one of the only areas that I think Scalia, Thomas, and Gorsuch are wrong. As Justice John Marshal noted in Gibbons v. Ogden (1824):

"Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments, nor is the exercise of that power by the States an exercise of any portion of the power that is granted to the United States. In imposing taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce."

All of the powers of the Federal Government are exclusive within their scope, but that doesn't mean that the state's powers do not also exist within a different scope.

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Devin Watkins
on May 14, 2019 at 10:25:21 am

"States struggled more generally with factions using legislative power against rival factions, and criminalizing political disputes. As a result, states acting largely on their own were not the best guaranty of liberty in the nascent country."

And so the non-sequitur of a powerful national government was created!

The great blind-spot of the 17th and 18th century classical liberals was the belief in limited "self" government. Sadly, the ink was barely dry on the Constitution before those with political power started violating it.

The vast majority federal and state law now reflects the criminalization of political differences. So instead of being able to flee the injustice of state A to the relatively free climes of state B, today's individual has no where to hide from the tyranny and injustice of the federal government...

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OH Anarcho-Capitalist
on May 14, 2019 at 10:27:00 am

Only if you ignore the "better angels" fallacy...

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OH Anarcho-Capitalist
on May 14, 2019 at 11:41:18 am

Agreed. This, of course, is the gist of my attempt at sarcasm in the last couple of sentences of my own comment. And let's not forget that for the past 50 years, all sorts of right-thinking types have been urging the creation of the non-sequitur of a powerful inter/supra-national government, to address the "pathologies," to prevent or remediate the "negative externalities," of independent world-states going about their normal political business amongst one another.

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QET
on May 14, 2019 at 22:56:43 pm

It seems Professor Rogers’ “pathology” invokes non-proprietary public policy that effects verifiable public benefit. In other words, 1789 states that behaved differently from other states might nonetheless help the people in that state and if the state behavior could be legislated to apply to all states, then the benefit could be applied to the nation and thereby be multiplied to the people in every state.

This construct perhaps overlooks the fact that some benefits by some states were created at the expense of citizens in other states. For example, machinery delivered to northern ports and transported through seaboard-states to interior states were taxed for transport, gaining benefits for people of the seaboard state at the expense of people in the interior states. However, there is no national benefit when national citizens exchange money.

The fact that intrastate squabbles adversely affect U.S. citizens can be kept in focus if scholars selectively memorize 16 of the 52 word U.S. preamble: We the People of the United States . . . do ordain and establish . . . the United States of America.

Also, I think proprietary fellow citizens who yet develop colonial British thought mimic their failure to master key words, such as “liberty.” Rogers writes, “The most significant national guarantee of state-level liberty, however—at least outside of the later-added Fourteenth Amendment . . . “

Liberty is not a state-granted practice: it is a human condition that the individual human may deny but not consign. Government can only attempt to provide freedom from oppression. Developing human liberty is the responsibility of the individual. Again, the U.S. preamble offers clarity in 8 of 52 words: “We [provide] Union . . . Justice . . . Tranquility . . . defense . . . Welfare [to] secure . . . liberty.” Thus, civic citizens collaborate for five public provisions of freedom-from oppression so that the individual may accept the liberty-to develop responsibility. Because of a woefully insufficient education system, many fellow citizens don’t even want responsible human liberty.

In short, the U.S. preamble’s proposition offers freedom from oppressive colonial English imposition so that the American citizen may develop responsible human liberty. It is past time for American individuals to accept responsible human liberty, and proprietary scholars can help by inviting consideration of the world’s most powerful civic, civil, and legal sentence: the U.S. preamble.

An obvious stumbling block is that the U.S. preamble’s proposition seems secular. However, the U.S. preamble admits the obvious in 0 of 52 words: government has no say in the mystery of whatever-God-is. The justices of the U.S. Supreme Court proved in Greece v. Galloway (2014) that they have not the civic integrity to yield to whatever-God-is, in other words, by fellow citizens under the U.S. preamble.

An increase in fellow citizens’ collaboration using the U.S. preamble’s proposition “could actually increase overall liberty for the country.”

One other point in favor of collaborating civic, civil, and legal issues under the U.S. preamble’s proposition and the-objective-truth focuses on the 1787 U.S. Constitution, U.S. Amendment VI (1791) and U.S. Amendment XIV.1 (1868). The British imposed 12:0 unanimous jury verdicts. The framers recognized that unanimity conflicts with impartiality so did not specify unanimity. Also, Amendment VI requires states to provide impartiality. In 1880, Louisiana, singly among 38 states provided impartial criminal juries using the 9:3 majority verdict. In 1967, England mimicked Louisiana’s provision with a 10:2 majority verdict. England’s purpose is to lessen organized crime’s influence on jury trials. Will the U.S. Supreme Court negate Louisiana’s 2018 unconstitutional vote to terminate their 1974 10:2 criminal jury verdicts? Will the USA enforce the sentence, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” or U.S. Amendment XIV.1?

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Phillip Beaver

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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