Live After Quit

The Ratification Debate: A Standing Army vs. the Militias

[This passage is excerpted from Murray N. Rothbard’s Conceived in Liberty, vol. 5, The New Republic: 1784–1791.] 

One of the most important aspects of the proposed Constitution was its authorization for a permanent national standing army, a striking contrast to the simple reserve constituting the state militia. The standing army was a particular objection of the Antifederalists, who, in the liberal antimilitary tradition, believed such an army to be inimical to the liberty of the American people. In contrast, the ex-Continental Army officers, particularly the higher officers, yearned for the power, the pelf, and the prestige that would come to them once again, and this time permanently, should there be a standing army. The leading and most aristocratic ex-army officers were cohesively organized in the ultra-reactionary and militaristic Society of the Cincinnati, which looked for a European-type army established, preferably led by a hereditary officer caste. The ex-Continental Army officers and particularly their upper strata in the convention, eagerly welcomed and fought for the proposed Constitution as their long-awaited conduit to a caste status in a standing army. Elbridge Gerry, indeed, feared the power of the Cincinnati, and this was one of the reasons why Gerry (and George Mason) opposed the popular election of the president at the convention:

The ignorance of the people would put it in the power of some one set of men dispersed through the Union and acting in concert to delude them into any appointment…. such a Society of men existed in the Order of the Cincinnati. They were respectable, United, and influential.1

The ex-officer and Cincinnati support of the Constitution played a definite role in Pennsylvania. Ten delegates to the state convention were members of the Cincinnati, and all were Federalists; furthermore, of the ex-army officers among the delegates above the rank of captain, sixteen out of seventeen were Federalists. This, of course, combined nicely with the bulk of the wealthy and educated being in favor of the Constitution.

Professor Benton has done a study of the men of the ex-Continental Army officers in Pennsylvania. Of the top generals in the state, all—Arthur St. Clair, Richard Butler, Josiah Harmar, Anthony Wayne, Lewis Nicola—were all Cincinnatians, and Nicola and Wayne were such ultra-Federalists that they wanted George Washington to become King. More importantly, Benton analyzed a sample list of forty-four ex-Continental Army officers above the rank of major (comprising 41 percent of the total number), and fifty-five state militia officers of the same ranks (13 percent of the total number). Together, this comprised 19 percent of the total number of officers. Of the forty-four Continental officers, every single one was a Federalist, and thirty-two were members of the Cincinnati; in contrast, of the fifty-five high militia officers, only twenty-three were Federalist, thirty-two were Antifederalist, and only three chose to join the Cincinnati. Here is a clear contrast between the arch-federalism of the Continental officers and the absence of this trend among the far less militarily inclined officers of the state militia who were, furthermore, much less likely to acquire leading roles in a federal standing army.2

Despite the fact that the outcome of the convention was a foregone conclusion, the Antifederalists, led by the eminent radicals Robert Whitehill, William Findley, and John Smilie, put up a valiant struggle. The lengthy debate lasted from November 21 until December 15, the Federalists being unsurprisingly led by James Wilson. The Antifederalists denounced the Constitution as illegally eliminating the federation of sovereign states on behalf of a consolidated, tyrannical, and aristocratic national government; this absolute national power being funded by an unrestricted taxing power, the creation of a national standing army, supremacy clause, the necessary and proper clause, and the absence of a bill of rights. John Smilie trenchantly declared that “in a free Government there never will be Need of standing Armies, for it depends on the Confidence of the People. If it does not so depend, it is not free…. The [Constitutional] Convention knew this was not a free government; otherwise, they would not have asked the powers of the purse and sword [taxes and standing armies].” Smilie and Robert Whitehill effectively rebutted Wilson’s paradoxical sophistry that a bill of rights was unnecessary because the people retain all their liberties anyway, and dangerous because the very delineation of rights might restrict these and other unaccounted for rights. Said Smilie:

So loosely, so inaccurately are the powers which are enumerated in this constitution defined, that it will be impossible … to ascertain the limits of authority, and to declare when government has degenerated into oppression. In that event the contest will arise between the people and the rulers: “You have exceeded the powers of your office, you have oppressed us,” will be the language of the suffering citizen. The answer of the government will be short—“We have not exceeded our power; you have no test by which you can prove it.”… It will be impracticable to stop the progress of tyranny…. At present there is no security even for the rights of conscience … every principle of a bill of rights, every stipulation for the most sacred and invaluable privileges of man, are left at the mercy of government.

Robert Whitehill added: “I will agree that a bill of rights may be a dangerous instrument, but it is to the view and projects of the aspiring ruler, and not the liberties of the citizen.” Whitehill also eloquently summed up the liberal views of the Antifederalists on the menacing nature of political power: “Sir, we know that it is the nature of power to seek its own augmentation, and thus the loss of liberty is the necessary consequence of a loose or extravagant delegation of authority. National freedom has been, and will be the sacrifice of ambition and power, and it is our duty to employ the present opportunity in stipulating such restrictions as are best calculated to protect us from oppression and slavery.”

Of the Federalists, only the enthusiastic Benjamin Rush was indecent enough to let slip the admission that the Constitution was a national government that ultimately eliminated the states. The other Federalists knew that it was not polite to admit in public, and their public position was to subtly deny that a national government was intended or implied in the Constitution. Wilson, however, was franker than the Federalist leaders in the other states, and while not going so far as to proclaim national government and suppression of the states, hailed the Constitution as eliminating the sovereignty of the states. Wilson then demagogically masked his cause in the mantle of “The People”; only The People were sovereign, he opined, and this was established in the Constitution. Where this led was clearly in the direction of plebiscitary tyranny, as Wilson declared: “The Supreme Power must be vested somewhere, but where so naturally as in the Supreme Head chosen by the free Suffrages of the People mediately or immediately.” In short, The People became mystically transmitted into the president.

William Findley astutely replied that Wilson’s argument—setting up The People against the states—was a straw man: of course sovereignty of the states ultimately depended upon the people of the various states. And Smilie quoted from the Pennsylvania Constitution: “That all power [is] originally inherent in, and consequently derived from the people.”

At the end of the debate the Antifederalists tried at the very least to impose a list of fifteen amendments—basically a bill of rights—as a price of ratifying the Constitution, and to induce the convention to adjourn to give the public time to study the Constitution and the proposed amendments. This was the first suggestion of Antifederalists of insisting upon amendments to check the central government if the Constitution could not be defeated at the convention. The Federalists, however, had no time for this. They brushed the proposal aside and ratified the Constitution on December 12 by 46-23. The Federalists, with their characteristic hostility to keeping the public accurately informed, moved from the start to keep the record of the convention debates from the public. Alexander J. Dallas, editor of The Pennsylvania Herald, was prevented by Federalist pressure from printing the complete records in the paper. Full records were also kept by one Thomas Lloyd, an ardent Federalist; Lloyd was purportedly bribed by Federalist delegates at the convention to scuttle his original plan to publish the complete debates and was instructed to publish only the edifying speeches of the two Federalist leaders James Wilson and Thomas McKean.

The dauntless radicals refused to give up the fight, and the Antifederal delegates prepared a lengthy Address of the Minority to explain their position in Pennsylvania and other states. The Federalists postal authorities did their best to ban the Address from the mail. The Address repeated and elaborated the charge that the Constitution established a consolidated national government of absolute power; it particularly elaborated an incisive libertarian analysis of the dangers of national militarism:

The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private; whether of a personal, civil or religious nature.

First, the personal liberty of every man probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind; and to death itself, by the sentence of a court martial….

Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. … This is the more remarkable, because even when the distresses of the late war, and the evident disaffection of many citizens of that description … the rights of conscience were held sacred…. 

Thirdly, the absolute command of Congress over the militia may be destructive of public liberty…. The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing their liberty and independency…. Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow-citizens, and on one another. This power can be exercised not only without violating the constitution, but in strict conformity with it; it is calculated for this express purpose …

The address concluded with a trenchant analysis of the new centralized dispensation:

The standing army must be numerous, and as a further support, it will be the policy of this government to multiply officers in every department: judges, collectors, tax-gatherers, excisemen and the whole host of revenue officers, will swarm over the land, devouring the hard earnings of the industrious. Like the locusts of old, impoverishing and desolating all before them…. its establishment will annihilate the state governments, and produce one consolidated government that will eventually and speedily issue in the supremacy of despotism.

The Antifederalists, furthermore, bitter at the haste of ratification, stepped up a campaign to get the legislature to repudiate the actions of the convention. As Samuel Bryan, Benjamin Workman, and William Findley waged the attack in the press, the Antifederals of Franklin County also urged this course upon the legislature, and during the month of March 1788, over 5,000 people signed petitions to the legislature to repudiate the Constitution. John Smilie was accused by the Federalists of inciting people to armed rebellion against the Constitution in western Fayette County and Pittsburgh. At the end of December 1787, in radical Cumberland County the Federalists in the town

of Carlisle tried to hold a public celebration and bonfire in honor of ratification, but a radical mob intervened to give battle. The mob threw a copy of the hated Constitution into the fire and shouted “Damnation to the 46 members, and long live the virtuous 23.” The next day, as the Federalists celebrated, the radicals paraded and burned effigies of James Wilson and Chief Justice McKean. At the behest of the vindictive McKean, seven of the leading rioters were arrested; finally, in late February 1788, the government agreed to release the prisoners and close the proceedings. Nearly 1,500 men paraded to the jail in celebration and hailed the liberation of their radical comrades. The fiery Antifederalist agitation resulted in the last effort of radicals in Pennsylvania: the Harrisburg convention of September 1788. While George Bryan had developed the idea of such a convention by February, the movement for a convention began in Cumberland County, where a meeting called a county convention to insist on amendments to the Constitution. The radical convention met at Harrisburg on September 3, with thirty-three representatives from all but five scattered counties in the state, and led by Bryan, Whitehill, and Smilie. But by this point enough states had ratified for the Constitution to take effect, and all thought of overturning ratification had disappeared. The radicals mildly confined themselves to petitioning for amendments that would restrict the powers of the central government. In doing so, they overrode a young farmer of Fayette County, a brilliant associate of Smiley, Albert Gallatin, future Secretary of the Treasury under President Thomas Jefferson, who urged Pennsylvania to push for amendments at a second constitutional convention. It was young Gallatin’s first appearance in the political scene. The radicals, however, failed even to induce the Pennsylvania legislature to seriously propose amendments to the Constitution.3

• 1. Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1961), pp. 38–40. [Editor’s remarks] For more on the Society of the Cincinnati, see Murray N. Rothbard, Conceived in Liberty, vol. 4 (New Rochelle, NY: Arlington House Publishers, 1979), pp. 1518–26, 404–12.
• 2. William A. Benton, “Pennsylvania Revolutionary Officers and the Federal Constitution,” Pennsylvania History (October 1964): 419–35. Benton’s broader interpretation of these facts differ considerably from the above; he rather naïvely attributes the pro-Constitution outlook of the army officers to their superior insight and broader outlook.
• 3. [Editor’s footnote] Jackson T. Main, The Antifederalists: Critics of the Constitution, 1781–1788 (Chapel Hill: University of North Carolina Press, 2004), pp. 147, 250; Robert L. Brunhouse, The Counter-Revolution in Pennsylvania, 1776–1790 (Harrisburg: Historical Society of Pennsylvania, 1942), pp. 208–15; Pennsylvania and the Federal Constitution, 1787–1788, ed. John McMaster and Frederick Stone (Lancaster: Historical Society of Pennsylvania, 1888), pp. 14–15, 250, 255–56, 161, 480, 557–58; R. Carter Pittman, “Jasper Yeates’s Notes on the Pennsylvania Ratifying Convention, 1787,” William and Mary Quarterly (April 1965): 308.