Crossroads for Liberty with William Watkins Jr.

2017-02-04 · Guest: William Watkins Jr. (Author of Crossroads for Liberty) · 47:14

Articles of Confederation and the US Constitution

Bob Zadek and William Watkins Jr. discuss the historical transition from the Articles of Confederation to the U.S. Constitution. They explore the Anti-Federalists’ warnings about the expansion of federal power and consider whether amending the Articles would have better preserved individual liberty and state sovereignty.

Topics: U.S. Constitution, Articles of Confederation, Anti-Federalists, Federalists, State Sovereignty, Federal Power, Ratification, Constitutional Amendments, Supreme Court, William Watkins Jr.

Speakers: Bob Zadek, William Watkins Jr., Caller (Steve)

Historical Context: The 16th Amendment and Court Packing [00:00]

Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. Thanks so much for joining me this in San Francisco, somewhat gloomy Super Bowl Sunday. This was a black week in American history. Two pretty gosh-darn dark events happened this week in our past. On February 3rd, in 1913, the despised 16th Amendment was ratified, proposed by William Howard Taft, then president. What was the 16th Amendment? It was the income tax. Life changed after February 3rd, 1913.

To make matters even worse, in 1937, President Franklin Delano Roosevelt announced his plan to pack the Supreme Court. The Supreme Court had been finding all of President Roosevelt’s New Deal legislation to be unconstitutional, which of course it was. But the Supreme Court would find it unconstitutional. President Roosevelt stared down the court and threatened to pack the court and to increase the number of justices to 15 unless the court backed down. And as was said at the time, a switch in time saved nine—the nine justices. The Supreme Court backed down to the will of President Roosevelt, and we have the New Deal legislation and our country has been changed forever. So I shudder at the thought of what has happened on this week in history.

Introduction to Crossroads for Liberty [01:45]

Bob Zadek: With that cheerful note, I’m happy to welcome to the show Bill Watkins. Bill has written Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution. The Articles of Confederation were, of course, our first constitution. And this is perhaps the third time in the 10-year history of my show that I visit one of my favorite historical issues, and that is—it can be summarized in my words as—did the founders get it wrong? Was it a mistake to replace the Articles of Confederation in full with the Constitution? Was the ratification of the Constitution a mistake? Would we have been better off fixing the Articles of Confederation, which was, after all, the reason the founders met in 1787 in Philadelphia in May of 1787?

Bill, welcome to the show this morning. Well, we start off with a sort of rather dramatic topic. Was our Constitution a mistake? Well, that doesn’t seem like a very easy mistake to fix, but first of all, let’s find out: was it a mistake? If it was a mistake, what went wrong? And what is your proposal for remedying it? Now, if you answer that question, it will take the entire hour. So let’s break it down. First of all, tell us about the Articles of Confederation. No one is taught the Articles of Confederation in history. Nobody, I don’t think, knows much about it. Tell us the stories of the Articles of Confederation and how it got to be replaced by the Constitution.

The Success of the Articles of Confederation [04:05]

William Watkins Jr.: Well, thank you, Bob. Just quickly, of course, getting to your main question: even if we do conclude it’s a mistake and people say, “Well, that’s a big mistake, how do you fix it?” you first have to know that there’s a mistake that’s been made before you can even go from there on any sort of policy issue. But to the Articles: well, as you mentioned, the Articles are our first national constitution. The Articles were drafted by the Continental Congress, later to become the Confederation Congress once the Articles were ratified. And they set forth the relationship between the states and this national government, to use that term loosely.

Of course, this was a state-centered system. The states chose the representatives that would go to the seat of government and handle the national matters, which at the time, of course, was war with Great Britain. They had great control over their representatives. Congress did not have the power to tax directly; requisitions and money had to come through the states. It was a very decentralized system where each state expressly retained all its sovereignty and independence that they were seeking from Great Britain. And were the Articles worth it? Were they a success story? Well, absolutely. If you measure the Articles against the goals that they were supposed to achieve: one would be independence from Great Britain, and two, the preservation of self-government in the individual states. Those were the two goals. Were they met? Absolutely. Once Cornwallis surrenders to Washington and the French in Yorktown, for all practical purposes, the revolution was over. Peace talks for the Treaty of Paris start right there after. And with the coming of peace and under the Articles and the system that they adopted, the states were very free to run their own domestic policies, to experiment with various policies to serve as laboratories of democracy, if you will. And so if we look at those two goals, we have a great success story.

A Compact Between States [06:37]

Bob Zadek: One interesting observation I’d like to make and have you respond to it is the Articles of Confederation said nothing about the relationship between the citizen and his or her government. It only regulated—it was a compact between states. As compared with the Constitution, which has a whole lot to say about the relationship between citizens and the government. So the Constitution established the relationship between citizens and the federal government. However, under the Articles of Confederation, the state constitutions did that. The Articles of Confederation was nothing other than an agreement among states how they can live together for mutual benefit.

William Watkins Jr.: Now, that is a very good point there. Under the Articles of Confederation, the Congress did not have the power to act directly upon individuals. The states essentially served as mediating bodies between the people and the government of Congress. And it wasn’t until we had our current Constitution, the Constitution of 1787, that the national government could act directly on individuals. So when you just think about that fact, what a great palladium of liberty that we the people would have an intermediary body, the state, to protect us from the national government and what sort of powers that it could impose.

Perceived Weaknesses and Shays’ Rebellion [08:23]

Bob Zadek: What’s interesting is your enthusiasm for the Articles of Confederation and mine was not shared by many of the founders, else they would never have called a meeting in Philadelphia in 1787 to say, “Let’s get rid of this thing, we need something better.” So what was perceived to be the weaknesses of the Articles of Confederation that caused the movement to have a constitution?

William Watkins Jr.: Well, there were some things that I think were just—whether we’d have had a strong central government or not under the Articles—there would have nonetheless been some troubles in the years after the war. One is British troops in occupying bases, forts in our American Northwest, chose not to leave too quickly because of confiscation of loyalist property and other things.

Bob Zadek: We lost Bill for a second. We’re going to go to break in a second anyway. So Bill, let’s get Bill back after the break. This is Bob Zadek talking to Bill Watkins. We are discussing the Articles of Confederation. Was the Constitution an improvement? We’ll be back in one short minute to find out: were the founders on the right track? Please stay tuned.

[Commercial Break]

Economic Struggles and National Credit [10:18]

Bob Zadek: Welcome back to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. We are speaking this morning with Bill Watkins, who has written Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution. We dare to ask the question: did the founders blow it? Was the Constitution—is it proven to be a mistake? Was there a better way to organize the affairs of the 13, now 50 states? Bill, welcome back to the show. Now, Bill, before the break, I was asking you—since you and I find a lot of merit in the Articles of Confederation, what do we not see that the founders did see that caused them to do a do-over?

William Watkins Jr.: Well, I think they were very concerned about the fact that after the war, we were having difficulty paying our debts. Of course, that would have been true no matter what system—we could have had a monarchy or some other form of government. When you spend that much money, that much capital in a venture like war, there’s typically going to be some economic depression or recession. That followed the war, and Congress was having trouble paying the interest on the debt for money that it had borrowed and so forth. So, you know, that was a great concern to them, and Congress did not have an independent source of revenue at the time, which some saw as a very good thing—a limit on Congress—but others in establishing national credit believed that they needed it.

Also, you know, many thought that the United States, once free of Great Britain, well, we would be a richer country automatically. What they failed to realize is that the colonies had enjoyed the protection of the Royal Navy, they had certain trading rights, say with the British West Indies, that they would lose as an independent nation. And so we lost some of that, which gave people cause for concern. But again, that’s not intrinsically related to any kind of weakness in the Articles, but the economic situation plays in.

And of course, we have a little rebellion up in Massachusetts as farmers essentially having their property confiscated because of taxation and other things to again try to bring money into government coffers and stood up against that. So you have a lot of unrest, and there’s some other things, but those are some of the big issues. And many of the framers believed that, you know, the United States just needed a stronger government to be able to handle these things. Frankly, I think they went overboard when several modifications to the Articles could have easily addressed these problems. But it was obviously a good opportunity for your more continental-minded, your more nationalistic, your more centralized thinkers to bring in a new form of government, and that’s what they did.

The Philadelphia Convention and the Virginia Plan [13:46]

Bob Zadek: I guess they realized that a crisis is a terrible thing to waste. And so they got together; they used the unrest, especially Shays’ Rebellion, which scared the bejesus out of many people because it was a rebellion of debtors against creditors, of agrarian against the more moneyed interest, and it scared everybody because it demonstrated a weakness in our new, under the Articles of Confederation, country.

So the founders get together and they—of course, as many people may not realize, when they met in Philadelphia in 1787, the ostensible purpose of the meeting was to fix the Articles of Confederation. But Madison had a different idea, and he ran the show, and he attended that meeting in 1787 with the outlines, called the Virginia Plan, of a new government starting from scratch. And he was the most prepared, so he sort of got to moderate the discussion. Also, he was quite brilliant and understood the issues better than perhaps many of the other people. So from the get-go, if you will, the Articles of Confederation were basically discarded even though that was the purpose of the meeting, and Madison said, “Let’s just start from scratch,” and off they went for five months in designing the Constitution.

Federalists vs. Anti-Federalists [15:18]

Bob Zadek: Now, during the ratification—after the Constitution was drafted, the country was asked to ratify. And the country broke down into two factions called the Federalists, those who supported the newly drafted Constitution, and the Anti-Federalists, those who opposed it. Tell us about the competing camps of Federalists and Anti-Federalists and who, in your opinion, as history shows us, knew more about what was going to happen, who was a better predictor of the future.

William Watkins Jr.: Well, the Anti-Federalists were your Republicans with a small ‘r’ that believed in a true form of republicanism. Bob, you have me there, my friend?

Bob Zadek: Yeah, oh sorry, we’re there. So Bill, I’m sorry, I lost you for a second. So in the ratification battle in the 13 colonies—although Rhode Island didn’t participate—in the ratification battle, who does history tell us seemed to have understood more the long-term effects of the Constitution, for better or for worse: the Federalists who supported it or the Anti-Federalists who opposed it?

William Watkins Jr.: I tell you, if you go through the Constitution, you go through the Federalist Papers, and you look at the promises of the Federalists on how the Constitution would be limited, on how certain clauses would not confer really any new powers on the national government—they would just invigorate already existing powers—and then you look at the Anti-Federalists’ arguments and their predictions of what these provisions would actually do, and you start to run a tally almost like a scoreboard, it’s clear that the Anti-Federalists were correct.

They predicted over and over again how the national government would likely abuse certain clauses, such as the General Welfare clause at the beginning of Congress’s enumerated powers, the Necessary and Proper clause at the end of Congress’s enumerated powers, the Commerce clause, which today has become a sort of universal jurisdiction for the national government over many matters. They predicted how the treaty power could be used to undermine the rights of the people and the states. Again and again and again, we could go on. It was almost as if they had a crystal ball and they could look into the future and see what was going to happen. These were men dedicated to a form of republicanism that stressed government on the local level, what Mr. Jefferson would call his ward republics. It was really a different vision of government and republicanism than we have today.

The Anti-Federalist Papers [18:35]

Bob Zadek: In other words, all of the founding generation were of course patriots; they all had the same goal. But the Anti-Federalists saw something that either the Federalists knew was there but didn’t care, or that the Federalists didn’t see. And I invite our listeners to read a collection of writings called The Anti-Federalist Papers. They are a collection of essays written by those who opposed the Constitution. And when you read The Anti-Federalist Papers and what was at the time their dire predictions of what would happen, well gosh, it all happened. And to a T, all of their dire predictions about the king-like power of the president, the reach of the federal government into our everyday lives—all of the promises made by the founders turned out to be not so, and the Anti-Federalists got it right.

So therefore, if given the goals of the new government, the Anti-Federalists knew what they were doing, and the Federalists—Madison, Hamilton, Jay, and many others, of course, Washington, but he didn’t speak out much—they got it wrong in terms of their promises. Now, when we come back from break, I’d like to discuss with Bill whether the founders, the Federalists, knew they were selling us something that wasn’t as promised, or whether they simply didn’t understand what they were doing as much as the Anti-Federalists. Hard question, Bill. We’ll discuss that when we come back. This is Bob Zadek talking to Bill Watkins on whether the founders got it wrong with our Constitution. Please stay tuned.

[Commercial Break]

The Federalist Papers as Propaganda [21:07]

Bob Zadek: Welcome back to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend, the show of ideas, never of attitude. Thanks so much for listening to my discussion this morning with Bill Watkins, who has written Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution. Our first constitution was, as Bill has pointed out, the Articles of Confederation. That was a compact and agreement among states; it did not focus on individuals. The states got together and said, “Let’s join forces, let’s do some stuff together,” retaining the autonomy of statehood. So the citizen’s relationship—the citizen had very little relationship with the federal government, only a relationship with the states, and the states had the relationship with the newly formed United States of America. That was replaced in 1788 by the Constitution after a bitter ratification battle. But the Constitution was ratified by the requisite nine states, ultimately 12 ratified, finally South Carolina ratified—they were the last state, if I’m not mistaken. And thus we have the Constitution.

Now, the ratification battle—an interesting political battle itself—was of course presented to the American people pretty much on a take-it-or-leave-it basis. There were lots wrong with the Constitution in the eyes of many folks living at the time; the Anti-Federalists pointed that out. However, they were not able to carry the day. And if you study the ratification process, Bill—and I’ll invite your thoughts on it—that battle, that battle for the hearts and minds of Americans to ratify was, if you look under the hood, in some degrees a pretty nasty affair. The books were cooked, people were denied access to a lot of information, Anti-Federalist articles weren’t allowed to be printed. So if you read what happened during ratification, it’s not so clear to me that the Constitution was embraced by a majority of the people, and if it was, they might not have known what they were getting themselves into. So comment for a few minutes, if you will, on the ratification process, because it was, if you look under the hood, in some degrees a pretty nasty affair.

William Watkins Jr.: No, it was a big fight. And you know, there was a dispute among the Anti-Federalists, or at least many, on whether they should just push for an outright rejection of the Constitution unless there were prior amendments, or for those when, you know, states started to ratify quickly early on and moving towards the required nine, whether they should go along with ratification, go ahead and be in the union, and then work within the instruments of the new government to change it. So you have a fissure there.

Fear-Mongering and the Ratchet Effect [25:15]

Bob Zadek: And one of—if I’m not mistaken—one of the issues was that the voters were told, “Vote on the Constitution up or down, ratify or don’t ratify, but do not try to change it because there isn’t any time. The British are about to invade, the Spanish are about to invade, the French are about to invade. If you don’t do it now, we’ll never have a country and you’ll all be dead, or you’ll all be British or Spanish or French.” So you don’t try to change it, just ratify or not. And the public had no way of knowing how true that was. So when given the choice of should they ratify or not, it was kind of a pretty obvious choice at the time.

William Watkins Jr.: No, it’s sort of like the thing with, you know, when we have things like the Patriot Act and other legislation. Those that want to augment government power typically either use an actual crisis or they try to cook one up in order to disturb the minds of the people and their representatives that, “Oh, we have to do something, we have to take some action now,” rather than sit back and deliberate and to further think through things. And unfortunately, as you and I both know, there is a ratchet effect, as Frank Meyer said, with power. Once government receives a power or accrues more power, that’s rarely ever given up; it’s just ratcheted up further to augment more power.

Caller Steve: How to Reel Government Back In? [26:47]

Bob Zadek: We have a caller on the line I’d like to hear from. Steve in Pleasanton this morning. Steve, welcome to the show this morning, and what’s on your mind?

Caller (Steve): Well, first of all, I want to thank you very much for a show that’s worthy of listening. There’s so little actual knowledge to be had on talk radio today, and I really appreciate this show. To get to my point, how do you go about reeling federal government back in to a concise method of getting control back over our country and getting rid of all the control? The country’s been going backwards for a long time—I mean, our liberties are dissolving, they’ve turned into a monster. How do we get this under control?

Bob Zadek: Well, we thought you’d never ask, Steve. Bill Watkins is not so mean-spirited as to present a problem without being gracious enough to present solutions. So we thought you’d never ask, Steve. Now Bill, we have two minutes before we go to break and we’ll finish after the break, but what can you suggest to Steve and our other listeners as ways we can—Steve’s words—roll back the encroachment on individual liberty by the federal government? What are some solutions that have occurred to you in your scholarship?

Proposed Solution: State-Centered Amendment Process [28:23]

William Watkins Jr.: I’ll tell you, here’s the biggest thing I think that we can push for, aside from just general education of the people about our history, about liberty, would be the amendment process to the Constitution. We really got a pig in a poke when we have an amendment process where essentially the national government controls all amendments that could affect its power. One, we have the never-used convention method where you would have a national constitutional convention. There are obviously fears over a runaway convention and what people would do today in a convention, but nonetheless, Congress is the one that would call it and perhaps could set strictures on what the convention could consider.

Secondly is all the other amendments that we have have come through an amendment process where Congress sends an amendment to the states. And what do those amendments typically do outside of the early founding era? They augment power of the national government typically in some way. So what do we need to do? The people need to push hard for more of a state-centered amendment process where the people in the states can actually propose amendments and that they can be ratified in the states without the action of Congress, without having to be filtered through Congress. It’s just a great sadness I have that we have such a nationalistic amendment process. No wonder you’re not going to get a balanced budget amendment. No wonder you’re not going to get a rollback of certain federal powers. So a change to the amendment process, I think, would be high on the list.

The Role of the Supreme Court [30:18]

Bob Zadek: The problem with your solution is that it requires a lot of public officials—House, Senate, President—to agree to move forward in the way that you said, and that’s not likely because they are the ones who many of them will perceive to be surrendering power. I—and Bill, we’re going to go to break in a second, but I’ll throw this out to you so you can have a minute to think about it when we come back—is that I find the greatest hope to be in the Supreme Court. Because with one or two changes in the composition of the court in the right direction, the likelihood for change is profound. So you get a lot of leverage: one or two humans change in the court and the whole relationship between citizens and the government will change dramatically. And Neil Gorsuch is, I think, a step in the right direction. This is Bob Zadek. Bill, you can comment on that after we come back from break. Talking to Bill Watkins, we are talking about the Articles of Confederation. Were the founders on the right track? Should they have changed it? I’ll be back in one short minute.

[Commercial Break]

Skepticism of Judicial Power [31:51]

Bob Zadek: Welcome back to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend, the show of ideas, never of attitude. Thanks so much for listening to my conversation this morning with Bill Watkins, who has written Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution. Our first constitution was, as Bill has pointed out, the Articles of Confederation. That was a compact and agreement among states; it did not focus on individuals. The states got together and said, “Let’s join forces, let’s do some stuff together,” retaining the autonomy of statehood. So the citizen’s relationship—the citizen had very little relationship with the federal government, only a relationship with the states, and the states had the relationship with the newly formed United States of America. That was replaced in 1788 by the Constitution after a bitter ratification battle. But the Constitution was ratified by the requisite nine states, ultimately 12 ratified, finally South Carolina ratified—they were the last state, if I’m not mistaken. And thus we have the Constitution.

Now, Bill, before we went to break, I suggested to you that I find hope in the Supreme Court, or in the change in the composition of the Supreme Court. And the reason I find hope is because it only requires a change of one or two justices towards more liberty-minded justices and the change would be profound. I would remind us all that some of the movements away from and towards liberty—the dramatic movements—were done as a result of action by the Supreme Court, not action by the Congress. Therefore, I look to them because they have great leverage. Any thoughts, Bill?

William Watkins Jr.: No, there’s no doubt there’s great leverage. And whatever one wants to think about Donald Trump, he’s done us a real solid, as they say on the streets, with the nomination of Gorsuch. He seems to be a strong originalist, definitely someone who could fill the seat of a Justice Scalia. My only concerns about that is, yeah, I have a fundamental problem with the court serving as a final arbiter of the Constitution and having nine unelected individuals exercising the power that they do. There’s absolutely much they can do for good and for liberty, but on the other hand, there’s a whole lot they can do to destroy and undermine liberty. I would prefer to see the popular branches, at least where the people have a shot, a say, be more in the process there, or the state legislatures, which are accountable to the people.

Closing and Where to Find Bill Watkins’ Work [35:24]

Bob Zadek: Bill, we have about 30 seconds left. How could our friends out there follow your writings, and what are you working on next?

William Watkins Jr.: Well, if you’re interested in Crossroads for Liberty or other areas dealing with the Constitution and individual liberty, go to www.independent.org. That is the Independent Institute in Oakland, California. You will find a good collection of libertarian writings, timely blog entries, and a number of things there. I have several books that are mentioned there and a number of articles. I welcome folks reading and submitting any feedback via the website on what they see.

Bob Zadek: Bill, thank you so much for the contribution to liberty and to the understanding of our early history with your book Crossroads for Liberty: Recovering the Anti-Federalist Values. And by the way, I’ll close by saying you have focused on the Supreme Court’s power in being the arbiter of constitutionality. That of course has piqued my interest and will be an upcoming show, and who knows, Bill, maybe you’ll be on it with me. I sure hope so. So this is Bob Zadek saying thanks again. Thanks again to Bill Watkins for his contribution to our scholarship and understanding of the American early history. This is Bob Zadek. I’ll be back next Sunday for another hour of libertarian thought. Thanks so much for listening. Have a nice Sunday.