In his 1850 Disquisition on Government, John C. Calhoun argued that a written constitution would never be sufficient to contain the plundering proclivities of a central government. Some mechanisms for assuring consensus among the citizens of the states regarding "federal" laws would be necessary. Consequently, Calhoun proposed giving citizens of the states veto power over federal laws that they believed were unconstitutional (the "concurrent majority"). He also championed the Jeffersonian idea of nullification. To Calhoun (and Jefferson), states’ rights meant that the citizens of the states were sovereign over the central government that they created as their agent, and could only be so if such mechanisms — including the right of secession — existed.
Without these political mechanisms the forces of nationalism, mercantilism, and political plunder would relentlessly reshape the Constitution with their rhetoric, and their efforts would eventually overwhelm the strict constructionists. At that point the Constitution would become a dead letter.
In his new book, The Constitution in Exile, Judge Andrew Napolitano explains in very clear language just how prescient Calhoun was. The biggest special-interest group of all — the federal government itself — has "seized power by rewriting the supreme law of the land," as Judge Napolitano says in the subtitle to his book. Just as Calhoun predicted. The purpose of the book, says the judge, is to tell "the unhappy story of liberty lost, federalism trampled, and Big Government run amok." How did we get to the point, he asks, of where the "federal" (i.e., central) government defines for us the drinking age for alcohol, how much wheat farmers can grow, the ability of terminally ill cancer patients to medicate themselves with marijuana, the amount of sugar that can be used in ketchup, and even the size of toilets?
Unlike the neocons who surround Judge Napolitano in his appearances on the FOX News Channel, he understands that freedom comes "from God and is inherent to our humanity . . ." "Freedom" is not derived from military adventurism under the guise of phony humanitarianism, as the David Horowitz/William Kristol/Rush Limbaugh/ crowd would have us believe. (For an amusing rendition of this fascistic theory take a look at the web site of the "David Horowitz Freedom Center").
Judge Napolitano is one libertarian who is not intimidated by the forces of political correctness, a defining feature of so many "beltway libertarians." Consequently, he is not afraid to recognize the truth about the American founding: "The states were sovereign entities that the Continental Congress could not directly control. Essentially, there was no binding central government" Even better, "Congress could not tax the people of the United states (Ah, the good old days!)" Advocates of centralized governmental power have long falsely associated statements about states’ rights with racism and slavery, which has intimidated most beltway libertarians, but not Judge Napolitano.
After a lucid explanation of each section of the Constitution the judge discusses how the nationalist/mercantilist coalition, led by Alexander Hamilton and his accomplice Judge John Marshall, conspired to effectively rewrite (and undermine) the Constitution almost as soon as he ink was dry on the original copy. The "Federalists" (who would eventually morph into the Whigs, and then the Republicans) never accepted their defeat in the Constitutional convention (which created a federal, not a national government). Nor did they accept Jefferson’s election as president. Thus, two days before his term ended the Federalist President John Adams appointed dozens of "midnight federal judges" and appointed John Marshall to the Supreme Court on March 3, 1801, one day before he would leave office. Marshall "spent the remainder of his career finding clearly disingenuous, historically inaccurate, and highly questionable justifications for ruling that federal power is not limited," writes Judge Napolitano.
In his most famous decision, Marbury vs. Madison, Marshall gave the federal judiciary the power to rule on the constitutionality of both statutory law and the behavior of the executive branch. "[T]his means that the Supreme Court granted itself the authority to declare the will of the people . . . null and void . . ." This of course has caused endless mischief and tyranny. This principle of a monopoly in reviewing constitutionality was not widely accepted, however, until after Lincoln’s war of 1861—1865 destroyed state sovereignty once and for all. Until that point, many Americans believed that the citizens of the states, as well as the president and Congress, should have equally legitimate claims on interpreting the Constitution. As President Andrew Jackson famously said, "John Marshall has made his decision, now let him enforce it if he can."
Marshall and his fellow Federalists, such as Justice Story, also paved the way for the Supremacy Clause of the Constitution. This clause only grants "supremacy" to the central government on the seventeen specific functions of the central government that are delineated in Article I, Section 8, period, many of which have to do with waging war and foreign policy. This power has been grossly abused by implying that the central government is somehow "supreme" in anything and everything vis-à-vis the citizens of the states. This of course is a perfect recipe for tyranny.
Judge Napolitano recognized that it was Federalists like Joseph Story and John Marshall, and later Whig politicians like Daniel Webster and Abraham Lincoln, who would tell The Big Lie that the Constitution was ratified by "the whole people" and not as it actually was — by the citizens of the sovereign states, with their representatives assembled in state conventions. "That was both historically incorrect and intellectually dishonest," says Judge Napolitano.
According to this false view of the American founding the central government was always the master, not the servant, of the people. This, too, is a perfect recipe for tyranny that has been made by tyrants everywhere (Hitler even invoked this argument in Mein Kampf to make his case for destroying state sovereignty in Germany).
In McCulloch vs. Maryland Marshall enshrined into law Hamilton’s dangerous (to liberty) notion that there were supposedly "implied powers" in the Constitution. He did this in order to justify a central bank, which is mentioned nowhere in the Constitution under actual powers. This created the situation where the powers of the central government were only to be limited by the imaginations of federal politicians. Judge Napolitano proceeds to describe myriad examples of this, from the PATRIOT Act ("a lawless law because it allows the federal government to obtain information without a warrant, thus violating the Fourth Amendment") to census snooping, television regulation, and hundreds of other major and minor power grabs.
By far the most brilliant chapter of The Constitution in Exile is chapter four, entitled "Dishonest Abe: The Lincoln You Didn’t Know." Here the judge recounts how, "In order to increase his federalist vision of centralized power, u2018Honest’ Abe misled the nation into an unnecessary war." And, "with very little regard for honesty, Lincoln increased federal power and assaulted the Constitution. His actions were unconstitutional, and he knew it." Moreover, "Lincoln’s view was a far departure from the approach of Thomas Jefferson, who recognized states’ rights above those of the Union." He goes on to present chapter and verse of the abuse of the constitution and the consolidation of political power in Washington that took place during and after the Lincoln regime. "Lincoln increased the power of the federal government at the expense of the rights of the states and civil liberties. This opened the door to more unconstitutional acts by the government in the 1900s through to today." The judge also recognizes that all other countries in the world ended slavery peacefully, which could have happened in the U.S had the slaves not simply been used as political pawns by the neo-federalist Republican Party to achieve its main goal, the consolidation of political power in Washington and the destruction of citizen sovereignty. "The next time you see Lincoln’s portrait on a five-dollar bill," writes Judge Napolitano, "remember how many civil liberties he took away from you!"
Thanks to the final victory of the Federalist/Whig/Republican cabal continued to enhance governmental power and diminish liberty by perverting the Commerce Clause of the Constitution in the post-war years in ways quite familiar to many LRC readers. By the late nineteenth century, the monopolistic federal judiciary began attacking capitalism in the name of regulation that supposedly served "the common good." The judge is wise enough to understand that capitalism itself serves the common good, and that regulation more often than not is the result of special-interest politics. These attacks intensified during the New Deal, which "codified socialism, evaded the Constitution, disregarded the Natural Law, and put individualism on the path to extinction."
And here’s a shocker: "Between 1937 and 1995, not a single federal law was declared unconstitutional by the Supreme Court. Not one piece of legislation was seen as exceeding the scope of Congress’s commerce power." (Emphasis added). So much for the phony argument that "judicial review" by the federal courts acts to protect liberty. Instead, it does the opposite: It expands the size and scope of government at the expense of liberty. This sad story is told over the course of several of the latter chapters of The Constitution in Exile.
The back cover of Judge Napolitano’s book has blurbs from such high profile neocons as Bill O’Reilly, Sean Hannity, and Rush Limbaugh (as well as civil libertarian Nat Hentoff and liberal commentator Alan Colmes). I doubt that the neocons on this list ever read the book, however. In a chapter entitled "After 9/11" the judge writes that "The PATRIOT Act and its progeny are the most abominable, unconstitutional governmental assaults on personal freedom since the Alien and Sedition Acts of 1798" and "the most unpatriotic of the things that the Bush administration and this [Republican controlled] Congress could have visited upon us." (These "most unpatriotic of things" are what O’Reilly, Hannity, and Limbaugh have spent hundreds, if not thousands, of hours defending on their respective television and radio shows.)
And it is indeed unpatriotic and traitorous to the Constitution to support current policy, which is that "federal agents and local police can write their own search warrants, serve them on American financial institutions without the intervention of a judge, and obtain information about you without you even knowing it!" The PATRIOT Act "has allowed the government to circumvent completely the Fourth Amendment" and "makes it a crime — punishable by five years in jail — for the recipient of a self-written search warrant to tell anyone that he or she has received the search warrant." These rats know that they are rats.
It gets worse. "The government can now . . . break into your house . . . steal your checkbook, put an electronic bug under your kitchen table, and make it look like it was a house burglary. It can even leave and not tell you or the local police what has happened."
Dub-Yuh is recognized as the tyrant and dunce that he is: "President Bush does not recognize the constitutional limitations imposed on his office. His only concern is with victory over u2018the enemy,’ whoever that may be. "
So what can be done? Among Judge Napolitano’s common sense recommendations are abolition of the income tax ("the Sixteenth Amendment . . . should be abolished outright"); same for the Seventeenth Amendment which called for the direct election of U.S. senators and a return to the system of appointing them by state legislatures; and the recognition that the federal government will never check its own power. "Thus, I would clarify the right of the states to secede from the Union," writes the judge from New Jersey, "losing all the benefits that come from membership [in the union], but regaining all the freedom membership has taken away.
The U.S. government is now characterized by dictatorial power, abuse of every kind of personal liberty, confiscatory taxation, economic fascism, dangerous militarism, and imperialism. Every American who is concerned about this Nazification of the American government needs to own a copy of The Constitution in Exile.
Thomas J. DiLorenzo [send him mail] professor of economics at Loyola College in Maryland and the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His next book, to be published in October, is Lincoln Unmasked: What You’re Not Supposed To Know about Dishonest Abe (Crown Forum/Random House).