Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.
Aaron Powell: And I’m Aaron Powell.
Trevor Burrus: Joining us today is William J. Watkins, Jr., Research Fellow at Independent Institute in California and Former Prosecutor and Defense Attorney who has practiced in various state and federal courts. He is the author of Crossroads for Liberty: Recovering the Anti‐Federalist Values of America’s First Constitution. Welcome to Free Thoughts, Bill.
William J. Watkins, Jr.: Guys, thank you for having [00:00:30] me. Great to be here.
Trevor Burrus: The subtitle of your book says America’s First Constitution. I assume you’re referring to the Articles of Confederation?
William J. Watkins, Jr.: That would be a great assumption. A lot of Americans and scholars and others just really don’t understand that we had a national constitution, if you will, a confederal one, before the Constitution of 1787. This book is designed to renew interest in those first [00:01:00] charters of American Liberty.
Trevor Burrus: I mean, a lot of people, if you remember, I guess, seventh grade Government, maybe sixth grade …
Aaron Powell: American History.
Trevor Burrus: … American History, you probably remember the Articles of Confederation enough to answer a Jeopardy trivia question of what came before the Constitution.
Aaron Powell: They were the failure we had before the Constitution.
Trevor Burrus: But that’s also what you learn. It’s the failure. Well, I guess, were they a failure? Is the first question.
William J. Watkins, Jr.: People are taught that they’re a failure. I disagree with that, and that’s one of the big [00:01:30] topics of the book. If we look at the Articles, there were two goals that the Framers of the Articles had: one was defeat of Great Britain in the Revolutionary War, and two was preservation of self‐government in the individual states. If you look at the outcome of that conflict and where we were in the mid to early 1780s, the Articles achieved both. We defeated a superpower, [00:02:00] the greatest military power in the world at that time. We were able to defeat that regime under the Articles of Confederation. And just as important, we were able to preserve self‐government in the states, where the people could govern themselves and their state and local assemblies without being under the thumb of Westminster.
Aaron Powell: What does confederation mean in Articles of Confederation?
William J. Watkins, Jr.: A confederal system, unlike a national system, is essentially an agreement, [00:02:30] a partnership among sovereign entities, coequal entities, where they retain their full sovereignty, yet they agree to work together in partnership for certain agreed‐upon ends, whether it be trade, national defense, et cetera. It would depend on the scope of the agreement.
Aaron Powell: So would this be like a multi‐lateral treaty?
William J. Watkins, Jr.: That’s not a bad way to describe it. Perhaps it goes in‐depth a little bit more than what we typically think of as a treaty [00:03:00] of friendship or a treaty of enmity, but that’s a fair description.
Trevor Burrus: But it seems more than the UN, is what I was thinking, where there’s a little bit more togetherness than the UN. Maybe it’s more like Switzerland. I don’t know that much about the Swiss governing system, but something like a treaty. But would it be right to think that all the thirteen colonies under the Articles of Confederation were like separate countries?
William J. Watkins, Jr.: No, they definitely were separate countries. [00:03:30] Some of the colonies … for example, Virginia … felt very strongly that once we concluded the peace with Great Britain that it, as an individual state, had to individually ratify that since it was a sovereign state for it to be binding the Confederation Congress and the emissaries. For the Congress, that was not sufficient. They recognized themselves to be a sovereign and independent state. [00:04:00] Again, I think the Treaty of Paris is really telling. If you read the Treaty of Paris, which few people do … They might have an awareness of it … but it indicates that King George is settling matters and is declaring a state of peace to exist between his realm. And then he specifically enumerates the thirteen sovereign, independent states of the United States of America.
Trevor Burrus: What else did the Articles of Confederation [00:04:30] do? Did they empower the government much at all? We always hear this sort of, they couldn’t raise armies or have taxes. Taxes is usually the one that is often cited. There was a congress … Correct? … but there wasn’t a president or a judiciary. What extra powers did they give the thirteen colonies acting together?
William J. Watkins, Jr.: Well, under the Confederation, Congress really did have a lot of authority. It had a lot of power. I know our modern [00:05:00] Hamiltonians would disagree with me on that, but it certainly had enough power that it could fight a war. It certainly had enough power to raise troops. Did it have trouble paying those troops? Sure it did. But in a situation that we were in, fighting a superpower, being essentially a backwater, wannabe republic, or a group of republics, Congress did an excellent job in handling foreign policy [00:05:30] and handling the war effort. Were there bumps in the road? Absolutely there were bumps in the road, but it had plenty of power and order to do its business and to see that we were able to defeat Great Britain.
Aaron Powell: A government in war and the powers that a government fighting in war needs are different than those of a government in peace. What kind of powers did it have as a government, as a congress? In peacetime, [00:06:00] was it a government that could have functioned for a lengthy period of time in peace, or was it really only focused on winning this particular war?
William J. Watkins, Jr.: No, it did function in peace. It was functioning until the U.S. Constitution went into effect after the Philadelphia Convention. It also had restrictions upon the states, where the states agree, for example, not to enter into certain treaties, [00:06:30] not to lay certain duties or imposts that interfered with Congress, restrictions on vessels of war, and many other things like that. Congress could certainly spend money. Congress could act for the exigencies of the Union. Now, on some of these powers, there was a super majority requirement to ensure that Congress did not abuse its power, but Congress had plenty of powers [00:07:00] that we would typically think that a confederal or a federal or even a national government has to conduct business, to conduct international affairs, and to govern itself.
Trevor Burrus: Let’s say it’s 1786, or ’85, around that time, and there’s a discussion emerging that there might need to be some changes done to the Articles of Confederation. One of [00:07:30] the problems that had been seen was this unanimity requirement when it comes to raising certain amendments. What had happened twice was that Rhode Island had been the only state to vote down the ability of the government to raise money via tariffs, and some of these things help precipitate the Constitutional Convention. At that time, if you were around at that time, would you have been in favor of amending the Articles along the lines that some people were discussing [00:08:00] and increasing some of the powers of the confederated government?
William J. Watkins, Jr.: I absolutely would have. I think most of the Anti‐Federalists writers who oppose ratification of the Constitution would agree that there were problems in the Articles. Probably the biggest problem, as you pointed out, is Congress did not have an independent source of revenue to pay off our Revolutionary War debts, or even to really keep the government going. After the war, many [00:08:30] expected that we would be this great, prosperous country. They failed to take into account that when we lose protection of the Royal Navy, we lose trading status with Great Britain. We no longer have access to certain lucrative trading spots, such as the British West Indies, and we went into an economic depression for a while.
I think it would have helped Congress to have some limited source of revenue, even if only for a period of [00:09:00] years, so it could manage and pay the debts. There were problems getting all the states to meet the requisitions of Congress. Of course, we were under a requisition system then. Congress requested that the states provide money or material. Again, coming off of war, it was hard for all of the states to come up with what was requested. Even during the war there were troubles, but that was to be expected. Long story short, and to answer your question, [00:09:30] I would have been in favor of some, at least a limited measure that would have allowed Congress to have its own revenue. That really was the big sticking point that caused the Philadelphia Convention.
Trevor Burrus: You were called to … So the first convention is the 1786 Annapolis Convention, where they tried to amend the Articles. Not enough people showed up. And then they said, “Okay, we’ll do it again in Philadelphia in May of 1787.” [00:10:00] Would you have gone, if you were elected, had gone to that convention, going and hoping to modify parts of it, as you said, but then someone like James Madison came in thinking bigger thoughts? What was James Madison thinking?
William J. Watkins, Jr.: Madison unfortunately came in with a very detailed plan, his Virginia Plan, where he wanted so far as to give the national government a negative over state legislation, a [00:10:30] national veto there. Very broad powers to the national government rather than the specific Enumerated powers that the convention ended up with. Madison, like others, felt some frustration with some of the difficulties in the Articles. Unfortunately, he gave up on that system. Lance Banning, in his book The Sacred Fire of Liberty, posits … And I think correctly … that perhaps had Madison foreseen how some of the new [00:11:00] and invigorated powers of the Constitution of 1787 would ultimately be abused, he might have been a non‐signer to that document that he was so instrumental in crafting, as well as perhaps, as his friend Jefferson did, look back on some fondness of the checks that the Articles had on government.
Aaron Powell: Why were the states … You said that under the Articles of Confederation, the states maintained sovereignty. That [00:11:30] seems to have been something that was pretty important to them, that they thought of themselves as their own entities first and then members of this larger group second. What changed? Why, when Madison showed up with his detailed plan, were so many of them willing to give up what had seemed like a pretty central piece of their identity?
William J. Watkins, Jr.: Well, you’ve got to remember, too, Madison, in selling the Constitution along with the other Federalists to the states and to the [00:12:00] people, pointed out in the Federalist Papers and in other speeches and documents that the states would still be sovereign entities with respect to those items not given over to the general government. He specifically enumerated trade, war, peace, and a few other matters. Essentially, we would be one as to external matters relating to foreign affairs, war, and peace. [00:12:30] As to commerce among the states, we would have a great free trade area that the national government would ensure, that customs booths didn’t go up, for example, between North and South Carolina, but rather that goods could move freely.
There was a promise to the people and the states that they would indeed be sovereign, that they would be as sovereign as France or Great Britain over their own internal concerns, but [00:13:00] the Federal Government, the national government, would be sovereign over those national or foreign concerns. That was the promise. That was the understanding. Now, has it worked out that way? I would say, absolutely not. Many Anti‐Federalists writing at the time scoffed at Madison’s idea that you could split the atom of sovereignty, that the national government could be sovereign as [00:13:30] to some matters and the states as to others. They scoffed at that. Said it was a solecism in politics. Of course, looking back on that, it seems like they had perhaps a pretty good argument. When we see the states now as, what, merely administrative subdivisions of the national government.
Trevor Burrus: Was the convention, the Constitutional Convention, was it just full of Nationalists, so to speak? Was it just full of people who wanted to greatly expand [00:14:00] the powers of the Articles? Well, actually, not just expand them, because they sort of ditched them within the first week and said, “We’re not even going to amend them anymore.” It seems like the convention was just full of particularly Nationalists’ type of attitude.
William J. Watkins, Jr.: There was a strong contingent of Nationalists. Of course, you had your George Masons, your Roger Shermans, and others that would advocate for the smaller states, for retaining [00:14:30] more of a confederal type system, not going so far as Madison and some of the others would. The New York delegation, other than Hamilton, of course, who left after a spell, was a strong, sort of Anti‐Federal contingent. Unfortunately, Madison had things so well planned out, had his Virginia Plan ready to go, when by the time that the New Jersey Plan or the Paterson [00:15:00] Plan … however you want to describe it … could be drawn up and offered as a counter, the Virginia Plan was the plan of discussion. That framed the whole debate despite the fact that the charge of the convention was to consider amending and revising the Articles, not creating an entire new system of government.
Trevor Burrus: There are a lot of … I think the right word … I don’t think conspiracy theories, but theories of planning and grandiose theories [00:15:30] of action behind the Constitutional Convention, the most famous probably being Charles Beard sees this … that it was a bunch of rich people trying to make themselves richer, to make that very simplified. And Libertarians are kind of prone to describing the Constitutional Convention as a coup, a particular type of Constitutional Libertarian who liked the Articles of Confederation a lot. Is that an accurate characterization, or is that a little bit overblown? Should we be calling [00:16:00] it a coup, or should we recognize that they were trying to do some work to fix something that didn’t work at the time?
William J. Watkins, Jr.: No, I think it’s more complicated than trying to consider this convention as either a coup or a completely good‐faith effort at modifying the scheme of government. Undoubtedly, there were those in the convention that would have stopped at nothing. Actually weren’t very happy, truly, with the final product, [00:16:30] because they thought too much power was left with the states. You have that. And then I think, also, you have as we march forward into the 1790s, when we see how the Constitution is actually implemented and used, I think Madison and some others were truly aghast that provisions were being interpreted in a very nationalistic and Hamiltonian way, when that was [00:17:00] not the bill of goods sold to the people.
Hamilton and others had specifically advocated in a different manner during the debate. Were there a handful of folks who perhaps acted in bad faith and were simply trying to stage a coup for national power? I think there were. Were there also a number of good and solid men who were simply trying to do the right thing and invigorate the national [00:17:30] government as needed but not destroy the states and sort of the idea of a federal system of government? There were. I think it’s a complicated story. We can’t just pigeonhole what happened in one category or another.
Trevor Burrus: Are we overselling what happened to the Constitution when we say something like … Again, Constitutional Conservatives and Libertarians are prone to saying things like, “Very quickly, the Constitution proved to be what the Anti‐Federalists say it was going to be,” or, “It proved [00:18:00] to be a system of national power that immediately broke the bounds that they had tried to put on it in the convention.” Because we don’t have much of a federal government until the 20th century, comparatively speaking.
At the very least, it took 110 years, if we just said until 1900, for them to start expanding into food and drug regulation and things like this. And then, of course, the New Deal was another big moment when the [00:18:30] government expanded drastically. If it did for 140 years … if we say from 1790 to 1930 … if it did a pretty good job of keeping things under, I guess the federal government under some sort of control, isn’t that kind of a success and something we should acknowledge and say, “Yes, it did work for a while”?
William J. Watkins, Jr.: Sure. Compared to what we have today, it was definitely a success. But I think we would be dishonest if we didn’t note that, [00:19:00] again, at the very beginning with Hamilton’s financial plan, with the national bank, with the Neutrality Proclamation, as we see the president rather than the congress taking a strong hand in foreign affairs. Then we see in the late 1790s under the Adams Administration with the Alien and Sedition Acts, where despite a clear first amendment, despite the ratification debates being in everyone’s [00:19:30] recent memory, the national government makes criticism of its officers and its doings. A crime, where you could go to jail, be fined $2,000. Many newspaper editors and others were indeed imprisoned.
We see Madison join the ranks of Jefferson and into opposition, trying to halt this expansive interpretation, trying to keep the genie of implied powers in the bottle, [00:20:00] or at least not growing to the extent that it would. We had problems early on. The Anti‐Federalists were correct that the Constitution’s powers were susceptible of abuse. They pointed these things out. However, even with this abuse, we don’t see anything on the scale of what we have today til perhaps … You could say with the Civil War, War Between the States … whichever you prefer [00:20:30] there … with the Lincoln presidency, you see sort of a glimpse of what could happen, where these powers could take the national government. Then things quiet down for a while.
Course, we have World War I and the Mr. Wilson’s War socialism that gives another good glimpse where we’re headed there and what the powers of the Constitution and certain interpretations are susceptible of. So, yes. [00:21:00] Would we feel like we were much freer even under Woodrow Wilson’s Constitution? Yes, we would, but that’s still a far cry from what the Anti‐Federalists, and even Madison and his advocacy early on, would have preferred.
Aaron Powell: Do you think that had … At that convention, had they stuck to the initial stated goals of revising and amending the Articles of Confederation instead of proposing and then adopting this new Constitution, [00:21:30] that we would be freer today, that the country would be more effective and better from a Libertarian perspective than it is now?
William J. Watkins, Jr.: No, I think we absolutely would be. When Jefferson first saw the draft of the Philadelphia Convention, the plan, he wrote back to his friend Madison that he was very disappointed from what he saw, that we had abandoned the confederal system, [00:22:00] that the Articles should have been kept, he said, and almost like a great relic and venerated and still used. He thought, in his words, three or four amendments to the Articles would have sufficed and cleaned up some of the problems that we had as a country. I think some strong structural Constitutional change rather than a unicameral structure … [00:22:30] I think our bicameralism was a big improvement in the Constitution.
I think having a separate executive department as well as a judiciary was an improvement when we consider separation of powers there. As a matter of fact, I think if we look at Jefferson’s draft of a Constitution for the state of Virginia, we see several provisions such as I’ve just mentioned that could have been [00:23:00] incorporated and essentially saved what was a sound structure, though with some problems. We would not have seen so quickly in what we have today with just a host of officials, federal officials, micromanaging really every aspect of lives or the states’ business.
Aaron Powell: When we are looking back at that time period, or when we’re judging the Articles of Confederation versus the Constitution and [00:23:30] the scope of U.S. history since … especially when we’re kind of critiquing it, saying, “Would we have been freer? When were we freer than we are now?” … the elephant in the room in always slavery. How would the Articles or something that didn’t look like the Constitution, the federal government that it created, have dealt with the slavery problem? Do you think we would have had slavery longer if we hadn’t adopted the Constitution?
William J. Watkins, Jr.: [00:24:00] I think eventually. And I can’t give you a precise time period, but whether we have a Constitution or a confederation, slavery would have eventually died out on its own. If you look at the history of slavery in the modern world, the only two countries in this hemisphere to have resorted to violence to end slavery would be modern‐day Haiti [00:24:30] and the United States of America. In Brazil, many other places where the institution existed, there was a peaceful emancipation there. Why do we have to be an exception to the rule? I don’t believe it’s some sort of original sin as the Straussians would have us believe there. As Libertarians, do we believe that each individual is created [00:25:00] equal and have certain rights that ought to be guaranteed? Absolutely. We find the institution anathema. But I think we can look at world history, especially of that time, and see that it was dying out, or did die out, on its own without violence in most places. There’s no reason we should have seen ourselves as an exception.
Trevor Burrus: There’s also an argument, which I find pretty fascinating, that the Constitution helped perpetuate slavery longer [00:25:30] than it should have gone, partially because of the voting power that was given to the South due to the Three‐fifths Compromise, that they were just … If you’re having representation for enslaved African Americans, that meant that the South had more representatives in Congress than they would have had otherwise, which meant that up until Jackson … The only Northern president is John Adams for most of the first seven presidents, [00:26:00] and that created, I would say, a stronger slave power constituency in the Congress than it would have otherwise had. Of course, on the flip side, you would have slave states just continuing to be able to operate as slave states, and the question of whether or not it petered out.
William J. Watkins, Jr.: No. I think the Northern states certainly, though they entered into the agreement with eyes open, they had good gripes of disproportionate Southern power because of that compromise, the Three‐ [00:26:30] fifths Clause. It’s a good argument that slavery was perpetuated by that. Just that extra political power, sure, that would rankle other states and perpetuate tension among them. Whereas, in a confederal system, you likely wouldn’t have that.
Trevor Burrus: There’s another interesting problem that comes up with the Articles of Confederation. A while back, I did a Free Thoughts episode. [00:27:00] Aaron was not part of the episode. It was with Gary Gerstle, who wrote a book called Liberty and Coercion. In that episode, his main argument is that Libertarians … He doesn’t mean Libertarians specifically, but freedom‐oriented people who cite the Constitution as a freedom document are often ignoring how unfree the states could be. And not just with the obvious unfreedom of slavery, but states were incredibly coercive in their ability [00:27:30] to control what substances you could put in your body, who you could marry, what your sexual practices where, a ton of other things also.
They were devaluing their currency possibly. They were privileging creditors over debtors. They were basically had … Occasionally, and this was in Madison’s view too, they would just go nuts that the states would be dominated by some faction, which would create a very unfree world. Liberty of having secure debt, for example, would be [00:28:00] compromised. Are we really putting our eggs in the right basket of freedom if we said that, “Ah, this would have been much better for the states to have more sovereign power over their own citizens without control of the federal government”? Because the states could definitely have become despotisms in their own right.
William J. Watkins, Jr.: They certainly could have, but the big difference is, would you rather have a system where you roll the dice for 50 states with [00:28:30] a national one‐size‐fits‐all remedy? Or would you rather have a system where, sure, states can enact very bad policies, make poor decisions? But you have the state serving as laboratories of democracy where different things can be tried. If they’re found to fail, well, that’s a good example to other states not to try that particular policy or program, whether it be devaluing [00:29:00] the currency or whatever. People can vote with their feet if … For example, let’s look at a modern issue like health care.
If we didn’t have Obamacare, if the states had been allowed to experiment as, say, Massachusetts, Tennessee did with TennCare … where they created their own mini versions of Obamacare, if you will … well, absent the national government getting involved, if that [00:29:30] was slowing the economy of those states or the health care deteriorated in those states, people had the option to vote with their feet rather than move to a different country, like Canada or Mexico or somewhere in South America. A citizen of Tennessee that was unhappy with what was going on Tennessee could cross the Blue Ridge Mountains and be in North or South Carolina, a very similar culture, climate to what they were used to, [00:30:00] where such programs weren’t going on.
They could vote with their feet on also a smaller scale with state government. You know your representatives more likely than not versus your national representative. Try getting close to a national senator or even a representative. An average representative represents about 700,000 people in the typical district. Whereas, [00:30:30] in the states, you’re much more likely, say, perhaps, to go to church with your representative, see him around town. These representatives in the states typically still have jobs. You might be interacting with those representatives. In other words, the people can inveigh against particular programs, hold these representatives accountable moreso than at the national level, and as I said before, vote with their feet.
[00:31:00] And you have the added benefit, if these policies are failing and failing badly, you have other examples in nearby states of economies being strong or robust versus the drag put on an economy by a Massachusetts type health care system or a Tennessee health care system. I say all that to say yes. Can small entities be evil? Can they make very bad mistakes? Sure. Anybody that’s lived in a [00:31:30] subdivision with a homeowner’s association knows how nasty people can be. But you have it on a smaller scale. You have more control, more access to the individuals in charge. It’s a better system. Where you have a national one‐size‐fits all, and you’re essentially rolling the dice and constitutionalizing or making policy for all X‐ty million in the United States.
Trevor Burrus: Let’s talk about some of the [00:32:00] Anti‐Federalists, since we got to them, and we talked a little bit about what they were writing, or at least implied or referred to what they were writing, during the Constitutional ratification debates. Who were some of the Anti‐Federalists, I mean, specifically? Do we know who these people were?
William J. Watkins, Jr.: Yeah. That’s a good question. There were a number of Anti‐Federalists. A number wrote under pseudonyms. We really don’t know their identity. But in certain states, for example, [00:32:30] Melancton Smith in New York, or what folks call the Smith Circle of his followers there, powerful Anti‐Federalist with excellent arguments made during the New York Ratification Convention, as well as in newspapers and other places. In Virginia, you’ve got George Mason, the drafter who wanted to draft a Bill of Rights at the Constitutional [00:33:00] Convention modeled on the Virginia Declaration of Rights but was rejected in that task. What a man of learning, a man who believed in the people and small government. You’ve got a number of well‐known individuals like that.
Samuel Bryan, for example, out of Pennsylvania, a strong Anti‐Federalist. And then we have a number of people who wrote with pseudonyms [00:33:30] and we don’t know who they are, like the Old Whigs. Some of the great Anti‐Federalist letters are from the Old Whig, for example. Richard Henry Lee is believed to have written some of the Federal Farmers letters in Virginia. These are men that go back to the Revolution. They were fighting for an idea that, they thought the Revolution secured this idea of self‐government in the states and a lack of interference from a [00:34:00] central power, whether it be Westminster or Philadelphia.
Aaron Powell: Did they have … We think of the Federalists as having a unified voice to some extent, that they all were advocates for adopting the Constitution. We can think of the Federalist Papers as this body of somewhat unified arguments. Are the Anti‐Federalists similar? Can we read it as a corpus in that way, or were they just [00:34:30] more of a grab bag of people who were all opposed but maybe for different reasons or had different solutions in mind?
William J. Watkins, Jr.: No. The Federalists definitely win the war with organization. As we talked about earlier, even at the Constitutional Convention, because of the planning and organization, they had a leg up there. Madison, Hamilton, and of course Jay had a small contribution to the Federalist Papers in New York, [00:35:00] they were organized in how they wanted to present their arguments, mapped them out, worked long hours, and gave a more coherent voice to what we know as the Federalist Papers, though we should not forget that there were many other Federalists in other states that were writing not so much as organized as Madison and Hamilton, but still had a lot of output there where we can learn a lot from them.
The Anti‐Federalists didn’t have that same [00:35:30] organization that the Federalists, though I will say, if you pick up the Anti‐Federalist papers, it is far from just a collection of essays that really differ so much from each that you have trouble making sense out of them. You find coherent arguments put forth. You find common themes dealing with certain clauses of the Constitution, how these are going too far, what [00:36:00] the dangers are. We see more importantly, to me, rather than these men having no answer to what plagued the Confederation or how to improve on the Constitution, we see a detailed program offered in the Anti‐Federalist papers and, importantly, in the state ratification messages. Even as states ratify, Anti‐Federalists offer very comprehensive amendments [00:36:30] targeted at specific problems that they sought to fix that, unfortunately, Madison and the First Congress ignored.
Trevor Burrus: You have any favorite arguments … Well, I guess, what you think were the most prescient arguments offered amongst the Anti‐Federalists in terms of their ability to correctly assess and predict what the Constitution would become.
William J. Watkins, Jr.: I mean, I think some of the arguments … We’ll talk big [00:37:00] picture arguments … would be the argument on consolidation, that essentially taking the view from Montesquieu that a republic needs to be small in size. I think one of the things plaguing us today is, no matter how much we want to tinker with the Constitution, how many changes we want to make, the fundamental question is, are we really too big to be free? Now, no one seriously wants to divide the country up into various confederations [00:37:30] these days, but I think it’s a fundamental question. Was Montesquieu correct? Or was Madison correct that if you extend the sphere, you’re going to cut down on faction and increase liberty and have this great population of whiz kid national legislatures that will be so much brighter than state officials?
Well, considering our national debt is approaching 20 trillion, considering all the problems [00:38:00] we have just balancing our books, I don’t think we have a great nation of whiz kid legislators there. I don’t think the problem of faction was addressed. Throughout our history, like‐minded people in the United States have been able to join … craft policy programs, whether it be in the early republic, things dealing with slavery or even the [00:38:30] Alien and Sedition Acts early on, or going forward. One, I think the fundamental questions that they asked are important. Representation. The Anti‐Federalists thought that representatives, as we mentioned briefly earlier, ought to rub shoulders with their constituents, be amenable to them, ought to live under the laws they make in the community where they still hold jobs. They shouldn’t be just full‐time [00:39:00] professional politicians.
What does our scheme of representation say about that today when we have one representative for essentially about 700,000 people? Is that true representation? George Washington was very concerned about ratios of around one representative for 30 or 40,000 people. Washington, a Federalist, was concerned that that was too much. What [00:39:30] would our first president say about the situation of representation today? Those are some fundamental issues I think the Anti‐Federalists got right. I think you look at certain clauses that they pointed out, of course, the General Welfare Clause, the Commerce Clause, Necessary and Proper Clause. They were right on on their predictions of how these definite clauses would be abused [00:40:00] and used to aggrandize national power.
Trevor Burrus: And possibly even beyond their wildest dreams, I would say. I think that some of the things you see with the government today might go further than even the most pessimistic Anti‐Federalist.
William J. Watkins, Jr.: It might even go further than even the most energetic Federalist if they saw what’s [inaudible 00:40:24] today.
Trevor Burrus: That’s a good point. Yeah. Even further than, say, Alexander Hamilton thought it could go. If [00:40:30] we’re going to try and fix some of these things, as you say, the subtitle of your book, Recovering the Anti‐Federalist Values of America’s First Constitution, if we’re going to try and recover some of them, and maybe through public education and discussions like this, but if we have some actual fixes … I mean, if we could go back and think about what we could do to fix something, you have any specific suggestions?
William J. Watkins, Jr.: Sure. I think one thing, the overall amendment [00:41:00] process is a problem. Congress, which has no motive to curtail national powers or its powers, is in control of the amendment process. It submits amendments to the states, or it would call a Constitutional Convention if so petitioned by the requisite number. But still, there’s an argument that Congress would control the issues of a convention, et cetera. Not getting into the runaway convention issue, but just [00:41:30] looking at the fact that Congress controls the amendment process. If we could just push for one amendment somehow from the grassroots level, I would want to change the way that we amend our fundamental law. The states ought to be able to directly recommend amendments without these having to go through Congress. I think that would be a huge change.
Other amendments that we might could learn from the Anti‐Federalists … [00:42:00] For example, we have this debt ceiling fight every now and then in the United States as we continue to spend beyond our means. When we had the demise of the requisition system, the Anti‐Federalists feared we were lurching too far to give Congress a blank check, or unlimited credit card, if you will. For example, in the New York Ratifying Convention, they proposed [00:42:30] that before the federal government would be able to borrow money, it would require a 2/3 vote in each house. Can you imagine the debt ceiling just willy‐nilly being raised and raised and raised if the Liberty Caucus and some other like‐minded folks could demand that 2/3 majority there? That would solve a good bit, I think, on our national debt and force Congress to cut where cuts [00:43:00] are needed there.
I think another amendment would be to expand the House of Representatives. If we do think we’re not too big to be free but there’s something salvageable, the ratios that we have with our representatives compared to other republics and democracies are way out of whack. Japan, Germany, Great Britain all have more favorable ratios of representation than [00:43:30] we do. We’ve been stuck on 490 since the early 1900s. Congress just decided, hey‐
Trevor Burrus: You mean 435? Or …
William J. Watkins, Jr.: Excuse me. I was … 435. We’ve been stuck on 435 since the early 1900s. Congress has, by statute, set it there, when we should be augmenting the number of representatives. I understand the Senate is fixed, but augmenting the number of representatives [00:44:00] in the House to take account of our growing population. Again, it could be a more of a vision of that Anti‐Federal idea of representatives mixing with the people, being part of the people. We’re a long way from what Washington himself thought was proper, but can we not do something such as augment the House? Rotation in office. I know term limits were killed by the Supreme Court in [00:44:30] the mid 1990s. If we want to think of amendments and things that we could do, rotation in office was a critical part of the Articles of Confederation. I think the careerism that we have in Washington … Though, again, the term limits movement has lost steam nationally, it continues to gain in local and state offices. It’s something that we should reconsider as well.
Trevor Burrus: Would those be moved toward freedom in the sense that … [00:45:00] I don’t particularly see increasing the size of the House … That expresses the value of representation in democracy, which is not necessarily the same as the value of substantive freedom. If we need to have a … I’m trying to think of what the … In the original Second Amendment … which means that Madison proposed 12 amendments that were ratified by the Congress. [00:45:30] One of the amendments, actually, was a representation amendment. It said that it should go up to one per 50,000, and it shall never go higher than one per 50,000, which would mean we’d have 7,000 or so members of the House, which would seem to be …
Aaron Powell: Sounds unbearable.
Trevor Burrus: … unbearable. I mean, it could be a fun reality show, but maybe dysfunctional to the point of craziness. At that point, should we be having the conversation … which I think you’ve alluded to, and also maybe [00:46:00] the big lesson here is … that we’re just too big?
William J. Watkins, Jr.: Now, I agree that the problem is that we are too big to be free. It’s a fundamental issue. It goes to the original argument between the Federalists and the Anti‐Federalists. Again, going back to Montesquieu, until we can figure a way to tackle that hard issue … We want to be a great empire, not a confederal system with small republics. Until we change [00:46:30] our mind there, I think … I wouldn’t say we’re hopeless, but we’re in bad shape.
Trevor Burrus: Thanks for listening. This episode of Free Thoughts was produced by Tess Terrible and Evan Banks. To learn more, visit us on the web at www.libertarianism.org.