"The Illusion Is Liberty - The Reality Is Leviathan":
A Voluntaryist Perspective on the Bill of Rights
by Carl Watner
Number 101 - Dec 1999
Delegates to the Constitutional Convention in Philadelphia began their deliberations
on May 25, 1787. During the hot summer months when their arguments seemed to
extend interminably, Benjamin Franklin observed that life went on around them
despite their debates. At one point, he "is said to have warned the delegates:
'Gentlemen, you see that in the anarchy in which we live society manages much
as before. Take care, if our disputes last too long, that the people do not come
to think they can very easily do without us'." (1) While this story may
be apocryphal, James Iredell, another delegate, noted that if the confederation
continued as it was, it might as well "resolve into total anarchy at once,
of which indeed our present condition falls very little short." (2) These
introductory remarks demonstrate that the federalist supporters of the Constitution
were highly perceptive politicians and strategists. They realized that if they
fumbled too long, their efforts at structuring a new government would fail and
they would not attain the legitimacy which their new political enterprise required.
This article was sparked by an essay written by Forrest McDonald entitled "The
Bill of Rights: Unnecessary and Pernicious," in which he presents the thesis
(which he shares with some other historians) that the first ten amendments to
the federal Constitution were essentially a legitimizing device used by those
favoring a strong central government. In other words, many Americans who otherwise
might not have supported the new central government were won over to it by the
adoption of the Bill of Rights. Reading McDonald's article led me to review some
of the history of the adoption of the Bill of Rights, of the conflict between
the Federalists and their opponents, the Anti-Federalists, of the strategy adopted
by the Federalists in urging the ratification of the Constitution, and to consider
the ultimate significance of the Bill of Rights. Would we, as late 20th Century
Americans, have been better or worse off had the Bill of Rights never been adopted?
What would American constitutional history look like if there had been no Bill
of Rights? The purpose of this article is to examine these topics from a voluntaryist
perspective, and to decide what position the committed voluntaryist would have
taken during the struggle for the ratification of the Constitution and the adoption
of the first ten amendments.
In order to understand the place of these amendments in American history, it
is first necessary to comprehend the voluntaryist view of the Declaration of
Independence and Revolutionary War. (3) Despite the seemingly libertarian nature
of the revolution, even the Declaration of Independence was a statist document.
For example, it concluded with the statement that the representatives of the
United States of America do declare "That these United Colonies are, and
of Right, ought to be Free and Independent States; ... and that as Free and Independent
States, they have full power to levy War; conclude Peace, contract Alliances,
establish commerce and to do all the other Acts and Things which independent
States may of right do." In other words, the signers of the Declaration
intended to create a new State to replace the one they were "throwing off."
As Albert Jay Nock observed, there was great dissension about the form of the
political institutions which came after the Americans won the war, "but
[there] was none about its nature. ... Dissatisfaction was directed against administrators,
not against the institution itself." Those who fought and led the rebellion
against Great Britain meant to have a State of their own to control, not one
under the control of a far away British Parliament and monarch. The bottom line,
after all is said and done, is that colonial-era Americans, after having won
the battle against Britain, simply swapped one State for another.
Nonetheless, the first American central government, The Articles of Confederation
and Perpetual Union, was relatively weak because "most men of the Revolutionary
period took it for granted that it was the nature of all governments to seek
to acquire more power. ... [Their attitude was that] all power corrupts and all
power tends to become absolute." (4) Hence, they were jealous of political
power. Many on the frontier were independent and self-reliant to the point of
being nearly ungovernable. They "were improvident and anti-social; they
did not take kindly to any form of authority which inevitably to them meant order,
limitations on freedom of action, mutual obligations, and, worst of all taxes.
... Generally speaking and aside from statesmen, merchants, and the veterans
of the Revolution, the idea of a National Government had not [yet] penetrated
the minds of the people. They managed to tolerate State Governments, because
they had always lived under some such thing; but a National Government was too
far away and fearsome, too alien and forbidding for them to view it with friendliness
or understanding." (5)
The Confederation, agreed upon by the Second Continental Congress on November
15, 1777 became effective in 1781. It was based upon an alliance of the thirteen
newly independent states. The central government they created had no power to
tax, field soldiers, regulate commerce, or even enforce its own laws.Whatever
revenue it raised was done by assessing the legislatures of the individual states,
who then, in whatever form they wished, levied upon their citizenry. It was an
intolerable situation for any government, much less a national one. Consequently,
American political leaders realized that they must assume control over the financial
and military aspects of the country in order to truly govern. They required sufficient
money and soldiers to protect the new nation from foreign aggressors, criminals,
and recalcitrant states or taxpayers. In order to accomplish these goals, they
crafted a new document, known as the Constitution of the United States, which
was distributed to the various state governments for their approval in September
The Constitutional Convention was originally called to amend the Articles,
not supersede or annul them. Under the Articles of Confederation, the states
were pledged to a perpetual union, and no provision had been made for dissolving
their association - except that any changes in the Confederation had to be done
by the unanimous agreement of all the States. Thus, there are only two ways to
view the Constitutional Convention. Either the individual States had the right
to secede (without the agreement of the other States) or else the Founding Fathers
instigated a revolution to change the governing institutions of the country.
In the latter case, they "assumed constituent powers, ordained a new constitution,
and demanded a plebiscite thereon over the head of all existing legally organized
powers. Had Julius [Caesar] or Napoleon committed these acts, they would have
been pronounced a coup d'etat." (6) The fact that the Articles of Confederation
were still the fundamental law of the thirteen states was simply ignored by the
members of the Constitutional Convention.
Although the States never seem to have formally withdrawn their consent to
the Articles, in each State a special ratifying convention was held to approve
or reject the Constitution. In Rhode Island, the first ratifying convention rejected
the Constitution. It was during the struggle for the ratification (September
1787 to June 1788, when the new constitution actually went into effect in the
first nine ratifying states) that the first political parties in American took
shape. Despite the chasm between Federalists and Anti-Federalists, one very important
point is usually overlooked. Both were supportive and approved of some sort of
central statist authority over the thirteen states. All assumed that some sort
of government was necessary to protect man's rights. As Herbert Storing in THE
COMPLETE ANTI-FEDERALIST put it, "If the Federalists and Anti-Federalists
were divided among themselves, they were, at a deeper level, united with one
another." They all "agreed that the purpose of government is the regulation
and thereby the protection of individual rights and that the best instrument
for this purpose is some form of limited republican government." (7) The
Federalists and Anti-Federalists were not arguing about whether there should
be a government to rule men - but rather what form that government should take.
Many historians have often seen the Anti-Federalists as libertarian opponents
of the newly proposed federal Constitution. This, however, is a mistake. Alexander
Hamilton pointed out that the Anti-Federalists were really trying hard to reconcile
the contradiction of "limited government." (8) How could a coercive
organization that retained a monopoly on the use of violence be kept in check?
The Anti-Federalists recognized that such a monopoly carried with it the potential
for unbounded tyranny. Many features of the new Constitution frightened them:
A lifetime judiciary "removed from the people might 'enforce harsh and arbitrary
laws'." In the combined role of the President as commander-in-chief and
chief executive officer of the government they saw the powers of a military dictator.
They were also skeptical about how a government might be kept limited if Congress
could pass any laws "necessary and proper" to carry out its enumerated
One commentator has claimed that the Anti-Federalists "thought the goal
of the American Revolution was to end the ancient equation of power where arrogant,
oppressive, and depraved rulers on one side produced subservience and a gradual
erosion of self-respect, capacities, and virtue of the people on the other side.
The result was an increasing corruption and degeneracy in both rulers and ruled.
Unless this cycle could be broken, [the Anti-Federalists thought] independence
would mean little more than the exchange of one tyranny for another. The intense
Anti-Federalist suspicion of corruption, greed, and lust for power" was
not without merit, but not one of them recognized the error of the Federalist
claim that "the true principle of the American Revolution was not hostility
to government, but hostility to tyrannical government." In fact, that was
their error: they objected to tyrannical government, believing that some form
of government might not be tyrannical. In this they were wrong. History has not
only sustained the Anti-Federalists in their claims that "corruption and
tyranny would be rampant ... when those who exercised power felt little connection
with the people," but has also shown that all government, by its very nature,
is tyrannical. (9)
The inconsistent and unprincipled attitude of most Anti-Federalists shows how
they were manipulated into supporting the Constitution. At first, they argued
that the Articles of Confederation were preferable to the newly proposed Constitution,
but as more and more state ratifying conventions approved the Constitution, they
began to realize that they had better cut their losses. They began calling for
amendments in order to safeguard and protect the rights of individual citizens,
as well as to reserve the unenumerated powers of governing to the individual
State governments. Furthermore, if the Anti-Federalists had a strategy for opposing
the Constitution it was flawed from the beginning. Instead of objecting to the
legal irregularities of the Philadelphia convention and boycotting the proceedings,
some of the Anti-Federalists participated in the convention and had a direct
role in creating the compromises incorporated into the new Constitution. By arguing
against specific details of the Constitution, they gave it a legitimacy which
it otherwise could not have obtained. If they were opposed on principle to the
new Constitution, they should have stated their opposition to it and refused
to debate the details. By participating in the debates over ratification in the
States, the Anti-Federalists implied that they were willing to accept the decision
of the special conventions called together in each State to decide whether or
not that State would accept the Constitution. How could the Anti-Federalists
reject the vote of the majority of delegates to special ratification conventions
if they participated in the political campaigns that led to the selection of
Initially, the Federalists had a clear-cut goal. Their objective was to get
the new Constitution ratified by the conventions in nine States as quickly as
possible. Otherwise, they would be in danger of losing their new Constitution
altogether. "The Federalists were determined that Americans not be diverted
... from the main task of providing themselves with effective government. ...
The main political business of the American people ... was ... not to protect
themselves against political power, but to accept the responsibility of governing
themselves. The Federalists did not deny that government, once established, may
need protecting against, but they tried to make" that a secondary consideration.
(10) Thus in June 1788, when New Hampshire became the ninth state to ratify the
Constitution, both the Federalists and Anti-Federalists underwent a sudden change
of strategies. The Anti-Federalists began campaigning for a new constitutional
convention, which was permissible under Article V of the newly adopted Constitution.
They hoped that they would have the required political clout to change some of
the objectionable features of the new Constitution. On the other hand, many of
the Federalists who had hitherto resisted supporting a call for any constitutional
amendments, changed their tune. James Madison became the leader of those advocating
the incorporation of a bill of rights into the new Constitution. In June 1789,
he proposed twelve amendments to the Constitution, ten of which were adopted
in 1791 and which later became known as the Bill of Rights.
Originally, most of the Federalists had been opposed to any bill of rights.
Alexander Hamilton, for example, pointed out that there was no reason to limit
the powers of the federal government in areas where it was not constitutionally
granted any powers. Nevertheless, Madison believed, and rightfully so, that his
suggested amendments would help keep the Constitution intact and protect it from
destruction by the Anti-Federalists. His objective, as he said in his speech
of June 8, 1789, was "to give satisfaction to the doubting part of our fellow-citizens."
(11) His proposal for a bill of rights was designed to forestall a call for a
new constitutional convention and to counter the efforts of the Anti-Federalists
to revise the powers and basic structure of the new government. His hope was
to save the constitution "by pushing forward a set of amendments that almost
everyone could accept and that excluded all the Anti-Federalists' [radical and]
fundamental proposals." (12) The most significant of these had been the
suggestion from several of the States that direct taxes and excises not be collected
in any State raising its own quota of money for the federal government.
Madison purposefully crafted his proposals to quickly help legitimize the new
government. He avoided statements detailing perpetual standards or maxims "to
which a people might rally" because he realized "that they tended to
undermine stable and effective government." Since the new federal government
needed (and in his opinion deserved) a presumption of legitimacy and permanency,
it would have been foolish of him to include any reference to first principles
that would have undermined that presumption. For this reason, Madison limited
his proposals to "specific protections of traditional civil rights"
rather than embrace a statement of first principles like those found in the Declaration
of Independence or the Virginia Bill of Rights. Congress showed that it understood
this need for legitimacy when on September 25, 1789 it submitted the completed
constitutional amendments to the States and noted that "their acceptance
would extend 'the ground of public confidence in the government'." (13)
Madison's amendments were simply window dressing for public consumption. First
of all,they did not curtail any of the substantive powers of the central or state
governments. Secondly, they had little legal or constitutional significance because
many of the critical rights of Americans were already respected without a bill
of rights. (14) A few like the prohibition on "ex post facto" laws
had originally been included in the Constitution. (Indeed, some had questioned
the propriety of the prohibition's inclusion there arguing that "there was
no lawyer, no civilian who would not say that 'ex post facto' laws were void
in [and of] themselves. It cannot be necessary to prohibit them." (15) Others,
like the presumption of innocence, were considered so basic and self-evident
that they never required constitutional recognition. Under the English common
law "basic, natural, and fundamental individual rights were protected whether
enumerated specifically in the Constitution or not." (16) Consequently,
the personal security of those living under the common law at that time did not
"really depend upon or originate in any general proposition contained in
any written document." The enactment of constitutions or bills of rights
or parliamentary statutes were "records of the existence of a right"
rather "than statutes which conferred it." Freedom for Americans at
the time of the adoption of the Bill of Rights grew out of custom and tradition,
not written law. (17)
As several observers have pointed out, it would be interesting to speculate
how our constitutional liberties would have evolved without a Bill of Rights
or what would have occurred had the amendments not been set off by themselves
at the end of the Constitution. (Madison originally opted for their insertion
at various places within the document.) Hadley Arkes, in his essay "On The
Danger Of A Bill Of Rights" comments that justification for interference
with personal liberties would still have to be made whether or not a particular
liberty was embraced in the Bill Of Rights. (18) Herbert Storing wrote that "Without
a Bill Of Rights our courts would probably have developed a kind of common law
of individual rights to help test and limit governmental power." (19) What
we do know, for sure, is that several violations of individual rights were and
still are found right in the Bill of Rights. For example, according to the Third
Amendment, soldiers may be quartered in private homes during war time without
the homeowners consent. (As one commentator noted, the government has bypassed
even this requirement "by simply removing the citizens from their houses
and conscripting them into the army, navy, and air force.") (20) By the
Fourth Amendment, the government may conduct searches and seizures so long as
they are of a reasonable nature. The wording of the Fifth Amendment implies that
people may be deprived of their property so long as such confiscation is countenanced
by due process of law. Private property may be taken for public purposes so long
as just compensation is paid by the government. The Seventh Amendment, which
provides for jury trials in civil suits, also provides that "no fact tried
by a jury, shall be otherwise reexamined by any Court of the United States, than
according to the rules of the common law." "By implication, limiting
the exemption to a reexamination of facts effectively confirmed the power of
appellate courts to overturn jury findings in matters of law." (21) Thus
it was that juries lost the final say in matters of law.
Forrest McDonald in his essay mentioned at the beginning of this article labeled
the Bill of Rights as "Unnecessary and Pernicious." They were unnecessary
because most of them were already embraced by the common law. They were pernicious
because they helped legitimize the Constitution in the minds of the American
people. Furthermore, McDonald points out that "The Bill of Rights has never
been an especially effective guarantor of rights." (22) "One by one,
the provisions ... [of the Constitution] have been eaten away, and nobody seems
to have noticed or cared. The illusion is liberty. The reality is Leviathan."
(23) Whenever the government's revenues have been threatened, whenever the nation
has been gripped by some sort of national emergency, or by a major war, the Bill
of Rights and other provisions of the Constitution have usually been laid aside.
One need only mention Lincoln's violation of civil liberties during the Civil
War, the Legal Tender and Gold Cases, the Red Scare during World War I, the internment
of Japanese-Americans during World War II, and the imprisonment of tax resisters
during this century to see how little protection the Bill of Rights has offered
Many nations have been brutally tyrannized by governments that ruled according
to constitutions, but the question about government is not really whether it
is tyrannical. The question is: Should there be a state, however weak or strong
it might be? A man who is a slave asks: by what right is he enslaved, not whether
he has a good or kind master. All governments and all slavemasters are unjust.
The weakest or strongest of governments must necessarily make the same claims
and both attempt to exercise a monopoly of power within their borders. They must
both have exclusive possession of and control over the military and the police.
They must both demand the right to declare war and peace, conscript life, and
expropriate income and property, levy taxes, and regulate daily life. The main
point is, as Robert Nisbet has so ably put it in his essay, "The State":
"With all respect to differences among types of government, there is not,
in strict theory, any difference between the powers available to the democratic
and the totalitarian State. We may pride ourselves in the democracies on Bills
or other expressions of individual rights against the State, but in fact they
are rights against a given government and can be obliterated or sharply diminished
when it is deemed necessary." (24) Constitutions and bills of rights are
legitimizing tools of the ruling elite. Both are badges of slavery not liberty,
and should be rejected. It is only when people awaken to these facts that they
will become free.
1. Leonard Krimmerman and Lewis Perry (eds.), PATTERNS OF ANARCHY (Garden
City: Anchor Books, 1966), p. xv.
2. Herbert Storing (ed.), Volume II, THE COMPLETE ANTI-FEDERALIST (Chicago: The
University of Chicago Press) 1981, p. 14 (footnote 7).
3. Readers who are interested should consult my earlier discussions in THE VOLUNTARYIST.
On the Revolutionary War see Issue 21, "A Plague on Both Your Houses,"
and on the Declaration see Issue 60, "Would You Have Signed the Declaration
4. Hillman Metcalf Bishop, WHY RHODE ISLAND OPPOSED THE FEDERAL CONSTITUTION
(Providence: The Roger Williams Press, 1950), p. 38. (Reprinted from 8 RHODE
ISLAND HISTORY, 1949).
5. William E. Nelson and Robert C. Palmer, LIBERTY AND COMMUNITY: CONSTITUTION
AND RIGHTS IN THE EARLY AMERICAN REPUBLIC (New York: Oceana Publications, Inc.,
1987) pp. 42-43.
6. Jerry Fresia, TOWARD AN AMERICAN REVOLUTION (Boston: South End Press, 1988),
7. Storing, op. cit., Volume I, p. 5.
8. Storing, op. cit., Volume I, p. 6.
9. Ralph Ketcham, THE ANTI-FEDERALIST PAPERS (New York: New American Library,
1986), pp. 19-20; and Storing, op. cit., Volume I, p. 71.
10. Herbert Storing, "The Constitution and the Bill of Rights," in
Robert A. Goldwin and William A. Schambra (eds.) HOW DOES THE CONSTITUTION SECURE
RIGHTS (Washington: American Enterprise Institute for Public Policy Research,
1985), p. 28.
11. Ibid., p. 20.
12. Ibid., p. 22.
13. George Anastalpo, THE AMENDMENTS TO THE CONSTITUTION (Baltimore: The Johns
Hopkins University Press, 1995), p. 326.
14. Ibid. p. 45 and Bennett B. Patterson, THE FORGOTTEN NINTH AMENDMENT (Indianapolis:
The Bobbs-Merrill Company, Inc., 1955), p. 7.
15. Hadley Arkes, BEYOND THE CONSTITUTION (Princeton: Princeton University Press,
1990), pp. 61 and 70. Chapter 4 of this book, from which these quotations are
taken, is titled "On The Dangers of A Bill of Rights: Restating the Federalist
16. Patterson, op. cit., p. 7.
17. See the discussion in Carl Watner, YOUR DOCUMENT FOR THE USE OF SILENCE (Boulder
City: Neo Tech Research, 1984), p. 21 citing Bernard Schwartz, THE GREAT RIGHTS
OF MANKIND (New York: Oxford University Press, 1977), p. 24.
18. Arkes, op. cit, pp. 69-70.
19. Storing, "The Constitution and the Bill of Rights," p. 26.
20. Forrest McDonald, "The Bill of Rights: Unnecessary and Pernicious"
in Ronald Hoffman and Peter Albert (eds.), THE BILL OF RIGHTS: GOVERNMENT PROSCRIBED
(Charlottesville: The University Press of Virginia, 1997), p. 401.
21. Ibid., p. 400.
22. Ibid., p. 417.
23. Ibid., p. 420.
24. Robert Nisbet, "The State," in D. J. Enright (ed.), FAIR OF SPEECH
(Oxford: Oxford University Press, 1985), p. 186.