Forbidden Questions about the American Leviathan
[33 Questions About American History You're Not Supposed to Ask. By Thomas E. Woods, Jr. Crown Publishers, 2007. c. 294 pgs.]
Thomas Woods's forbidden questions cover a variety of topics, but a common thread in his answers unifies the book: Throughout American history, the federal government has been the principal enemy of liberty. Within the government, a powerful president stands as the foremost danger. Under our constitutional system, the defense of states' rights and strict construction offers the best prospect to preserve liberty.
The present Iraq war, with its appalling malfeasance and misconduct, entirely confirms Woods's thesis. President Bush, the self-proclaimed "decider," instigated the war; Congress did not declare it, as the Constitution requires. (It is one of Ron Paul's many merits that he protested this act of gross usurpation.) But here opponents of a powerful executive must confront an objection. Has it not been the case, that in hundreds of cases, the president has sent troops into battle without prior approval by Congress? Does not long practice support the view that the president may wage war as he likes, even if he cannot formally declare it?
Woods convincingly refutes this contention:
Now what of those "hundreds" of cases of presidential war-making? This argument — surprise — originated with the U.S. government itself … The claim that the president may act with a free hand in foreign affairs, dispatching troops and committing them to offensive operations at will is … absolutely indefensible. Supporters of this position are counting chases of cattle rustlers as examples of presidential war-making and as precedents for sending millions of Americans into war with foreign governments on the other side of the globe. (p. 92)
But who bears responsibility for this "imperial presidency"? Woods places much of the blame on Theodore Roosevelt, who "loathed inactivity" (p. 136). Though highly intelligent — my late friend Mel Bradford rated him the brightest of all the presidents — he was dominated by passions he made little effort to control.
Mark Twain, who met with the president twice, declared him "clearly insane." In a way, Roosevelt set the tone for his public life to come at age twenty, when, after an argument with his girlfriend, he went home and shot and killed his neighbor's dog … When he killed his first buffalo, he "abandoned himself to complete hysteria" … His reaction was similar in 1898 when he killed his first Spaniard. (p. 137)
Woods's portrayal of Roosevelt's impetuous temperament receives support from John W. Burgess, who had been one of Roosevelt's professors at Columbia University Law School. Burgess's brief account of Roosevelt in his Recent Changes in American Constitutional Theory (Columbia University Press, 1923) is well worth the attention of readers of Woods's book.
Given his impetuous temperament, it comes as no surprise that Roosevelt had little regard for the limits the Constitution imposed on the presidency. In the United Mine Workers strike in 1902, Roosevelt threatened to order the army to run the coal mines.
Well known is TR's outburst, when told the Constitution did not permit the confiscation of private property: "To hell with the Constitution when the people want coal!" Less well known is that at one point TR summoned General John M. Schofield, instructing him: "I bid you pay no heed to any other authority, no heed to a writ from a judge, or anything else except my commands." (p. 139)
Roosevelt's disregard for the Constitution carried over to his conduct of foreign affairs. Woods explains in detail the way in which Roosevelt in 1905 arrogated to himself the power to reach a binding agreement with the Dominican Republic to administer that country's customs collections. The Constitution clearly requires that treaties be submitted to the Senate for its approval, but Roosevelt at first refused to submit the agreement to the Senate. Faced with protests, he at last did submit the treaty; but when the Senate did not act on it, Roosevelt was not deterred.
Exasperated, Roosevelt simply defied the senate, drawing up what we would today call an executive agreement, the foreign policy equivalent of an executive order. (p. 141)
Given Roosevelt's reckless record, it is surely significant that Herbert Hoover supported him for the presidency in the 1912 election. Woods, in his chapter on Hoover, rightly points out that, far from being an advocate of laissez-faire, Hoover was an ardent interventionist. His Progressivism was of long duration.
Woods makes a convincing case that we ought to fear a strong executive; but does his Constitutional remedy really help promote liberty? He favors states' rights, but was this not the catchword of Southern defenders of slavery? Well aware of this objection, Woods is ready with his response. A centralized modern state is inimical to liberty: in continuing to resist Lincoln's efforts to put an end to their "rebellion," the Southern states acted to protect liberty.
Emory University's Donald Livingston has identified one of these larger issues. In the modern age, Livingston observes, we have seen what he calls federative polities giving way to modern states. A federative polity is one in which a variety of smaller jurisdictions exist. (p. 77)
Liberty grew up in such polities, and this is what the South defended. Small wonder, then, that after the war the great classical liberal historian Lord Acton, in a letter to Robert E. Lee said, "I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo" (p. 82).
But does not this defense of states' rights overlook a key fact? To some extent, the Southern states seceded to protect slavery. What is libertarian about that? Woods responds in the best passage of his brilliant book. He notes that many historians praise Lincoln for his moral growth during the war: He did not begin the war to abolish slavery, they contend, but this goal increasingly gained importance in his mind. In like fashion, Woods suggests, isn't
it possible that the South's own self-understanding also evolved over the course of the war? Even if some people did believe that they had seceded over slavery — as some certainly did — is it not possible that they, too, may eventually have begun to appreciate larger issues at stake in the conflict just as Lincoln is said to have done? (p. 77)
Woods also points out that states' rights could be used to oppose slavery. The Wisconsin Supreme Court argued that since the Fugitive Slave Act was in its view unconstitutional, it had the power to refuse to enforce the law within the state. In case of conflict between the federal and state authorities, the court held, it could act on its own view of the question. It was not bound to defer to the federal government's understanding of its own powers. (The act was considered unconstitutional because the regulations governing the federal commissioners who would decide whether claims to fugitive slaves were valid were in various ways constitutionally deficient.)
Woods's defense of a strict construction of the Constitution is by no means confined to his Jeffersonian position on states' rights. He maintains that the interstate commerce clause of the Constitution was intended to give Congress only the power to regulate trade that takes place between one state and another. As both Jefferson and Madison pointed out, the clause did not give Congress the power to regulate internal matters within a state that affected interstate commerce.
Against this original understanding, the federal government now claims vast powers to regulate nearly all commercial activity. This usurpation came about, Woods maintains, through a tendentious ruling.
In the Supreme Court case of Gibbons v. Ogden (1824), Chief Justice John Marshall put a fateful stamp on the commerce clause when he observed that the internal commerce of a state was a matter reserved to the state itself, unless that commerce "affects other states." That proviso had not a shred of support in the history of the commerce clause … It opened up a potentially limitless field of power for the federal government, since anything can be said to "affect" anything else. (p. 200)
Even if Woods is right that a strict interpretation of the Constitution drastically limits the power of the federal government, should this be of concern to us today? Do we not need a Constitution that changes with the times? He notes that Bruce Ackerman, an eminent Yale law professor, thinks that popular support for the federal government can expand its powers, bypassing the formal amendment process. The major legislation of the New Deal, as an example, has now been incorporated into the Constitution by popular acclamation.
Woods shows that the Founding Fathers, well aware of this view, rejected it out of hand. Jefferson said that Americans must not make of the Constitution "a blank paper by construction" (p. 127), and Hamilton in the Federalist addressed Ackerman's issue directly:
Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding … and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. (p. 121)
One might object that Woods has begged the question. His opponents favor a "living, breathing" Constitution rather than a document construed according to the intentions of its authors. To them he responds that their view contradicts the intentions about interpretation of the Founding Fathers. But why would someone who favors a flexible Constitution regard this as an objection? Precisely his proposal is to disregard these intentions, if present needs require this.
Woods has the resources to reply to this counterargument. If we adopt the principle that the government can do what it wishes to cope with present needs as it understands them, then we repudiate, not some legal technicality, but the basic principle of the American Revolution. The British government at that time claimed that "a measure was ipso facto Constitutional if Parliament approved it" (p. 123). The American colonists rightly saw that this principle was tyrannical. Instead, they held that only laws in accord with natural law and well-established custom were valid. The proponents of the living Constitution embrace the view that Americans repudiated in the Revolution. Woods's entire book is a magnificent defense of the Revolutionaries' standpoint.
David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store. See his archive. Send him mail. Comment on the blog.
This review originally appeared in The Mises Review, Summer 2007.
 It is better to say that the Senate must "approve" a treaty, not "ratify" it. After a treaty has been approved, ratification takes place by the exchange of signed instruments of ratification among the parties to the treaty. This brings the treaty into effect.
 A quibble with the author is best confined to a footnote. He rightly says that the view that an act of Parliament is unconditionally binding is an expression of legal positivism. But I do not think that a legal positivist has to reject the claim that laws must answer to tradition and custom. That depends on whether he thinks that the traditions are part of the legal system. So long as he does, a positivist can hold that laws must conform to tradition. Opponents of positivism contend that, to be valid, laws must conform to moral requirements, even if these have not been incorporated into the legal system.
 My page citations in this review are to a proof copy of the book.