Ex-Constitution

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Psst.
I have news for you: the Constitution you live under has an extremely
attenuated relationship to the one Thomas Jefferson swore to administer
206 years ago. In significant respects, the current American federal
system is in fact the polar opposite of the one he knew and loved.

How is
it that questions such as whether abortion is allowed and when,
whether homosexuals may marry each other and where, what penalties
may be imposed on convicted criminals and when, and who received
Florida's electoral votes in the election of 2000 have been and
continue to be decided by federal judges? The short answer is that
"constitutional law" — the body of judicial decisions
implementing the Constitution — has been off the rails virtually
from the beginning. Nationalists in control of the federal judiciary
have consistently used their offices to further their personal political
ends, all in the name of "interpreting" the Constitution.

The changes
they have wrought since 1801, the year Jefferson was inaugurated,
have gone far toward eliminating three basic features — republicanism,
federalism, and limited government — from the federal system. Sure,
there are elections at federal and state (including local) levels,
and kids and immigrants still are taught, while soldiers and politicians
still must swear, to uphold the Constitution.

But, to
be blunt, the original federal system's three main attributes —
republicanism, federalism, and limited government — have given way
to a system in which virtually all matters of any import are governed
ultimately by federal policymakers. Worse, when someone thinks to
put the matter in the form of a legal question, it is apt to be
decided by an unelected, life-tenured federal judge, purportedly
— but rarely actually — on the basis of the federal Constitution.

All of
which constitutes nothing less than betrayal of the American Revolution.

What do
I mean? Isn't America, as the politicians say, "the freest
country on earth"? Wasn't our system devised, as Ronald Reagan
used to like to say, by "the People"? How could our glorious
system be contrary to the Revolution?

The Revolution
was fought not to vindicate American nationality, but to reestablish
home rule in the colonies-cum-states. Parliament's post-1763 attempts
to tax and otherwise regulate the thirteen colonies yielded growing
insistence that only the colonial legislatures could tax, then in
any sense legislate for, the colonists. When Britain proved irrevocably
committed to its policy of legislating for the colonies, the colonists
declared their independence — first in Virginia (May 15, 1776),
then in the other colonies/states.

The American
Declaration of Independence's chief author, Thomas Jefferson, was
only a member of Congress because the leaders of Virginia's ruling
May Convention refused to send a replacement so that he could head
home. He would have preferred to help write the first Virginia Constitution,
which he said was the object of the Revolution.

The priority
given to state identity was reflected in the Declaration of Independence,
which said that the thirteen former colonies were (not "one
nation" or "a big country" or "an amalgamated
mass," but) "free and independent states," plural.
Lest the significance of the plural be missed, the first federal
constitution (the Articles of Confederation) said in the second
article that each state retained its sovereignty. In other words,
each was on a par in the international system with Sweden, Spain,
and Great Britain itself.

"But,"
you may ask, "didn't the federal Constitution of 1788 [the
year it was ratified by the ninth state — the one whose ratification
made it effective] change this situation?" In a word, no.

Republicans,
as opponents of ratification styled themselves in the debate over
ratification of the Constitution, insisted that the proposed constitution
as it stood was a threat to the states' self-government. The powers
of Congress, they said, were not defined clearly enough, and neither
were the limits of the federal courts' jurisdiction; those institutions,
then, likely would grab power intended to be left to the states.
These shortcomings, when added to the omission of explicit provisions
requiring the federal government to respect certain traditional
English rights, struck Republicans as overwhelming.

The Federalists
did not respond by saying "It's a good thing that the new government
will be so efficient and powerful. We don't need the states to have
a great and wonderful nation." Instead, they insisted — in
South Carolina, in Massachusetts, in New York, in Virginia, in Pennsylvania
— that the federal government would have only the powers it was
"expressly delegated."

People bought
that argument. They were narrowly persuaded to try the experiment
— on condition that the Bill of Rights be adopted right away to
answer the major objections about the lines between federal and
state power and about the traditional individual rights of English-speaking
people.

In other words,
people still wanted what they had made the Revolution to vindicate:
republicanism, federalism, and limited government. So when did they
change their minds? Which generation of Americans decided to substitute
today's government characterized by a huge policymaking role for
appointed judges, a highly centralized "federal" system,
and congressional discretion to legislate regarding virtually any
question that came to mind for the original version of the Constitution?

In short, never.
When the first party to control the federal government, the Federalist
Party of Alexander Hamilton, attempted to ignore the principles
of federalism and limited government, it was voted out. Thomas Jefferson,
leader of the party that defeated Hamilton and permanently consigned
the Federalists to oblivion, explained his party's victory by reference
to republicanism, federalism, and limited government. He described
the "Revolution of 1800" as "as real a revolution
in the principles of our government as that of 1776 was in its form."

Yet, from the
beginning, federal judges attempted to undermine the model of government
that the people had ratified. So, for example, in Chisholm v.
Georgia (1793 — only four years into the life of the new government),
Chief Justice John Jay, the first chief justice, attempted to extend
federal courts' jurisdiction to a class of cases not among those
over which the Constitution had been intended to give federal courts
authority. The people quickly slapped this power grab down by adopting
the Eleventh Amendment.

Federal courts,
however, had not learned their lesson, but continued to work against
the three guiding principles of the American Revolution, as reflected
in the new Constitution. Most spectacularly, at the very time that
Jefferson and his Virginia Republican Party were thumping the Federalists
into non-existence, John Marshall handed down a series of Supreme
Court decisions establishing the opposite principles as fundaments
of American "constitutional law."

Which brings
up a very important point: "constitutional law" (the body
of judicial decisions implementing the Constitution) has very little,
if anything, to do with the federal Constitution ratified in 1787–88.
What is more, many pillars of this anti-constitutional constitutional
law were known by their authors to be contrary to the people's
understanding of the constitution at the time they ratified it
— in other words, inconsistent with what the Federalists told the
people they were going to get if they voted "aye."

Take, for example,
the Supreme Court's decision in McCulloch v. Maryland (1819).
This decision, and the Court's explanation of it, are remarkable
for several reasons. First, Marshall had been a member of the five-man
committee that reported the instrument of ratification to the Virginia
Ratification Convention. In presenting the instrument — the actual
language on which the Convention voted when it decided the issue
of ratification — the committee's two spokesmen (George Nicholas,
who often spoke in the convention on behalf of poor public speaker
James Madison, and Governor Edmund Randolph) said that Virginia
would be one of thirteen parties to a compact in case of ratification
and that the Congress would have only the powers that were expressly
delegated. Marshall sat silently as this explanation was offered.

Second, Maryland's
lawyer, Luther Martin, had been a delegate to the Philadelphia Convention
of 1787 in which the Constitution was drafted. He had played a very
significant role in defeating the nationalist elements of the Virginia
Plan and bringing the Convention to give the states equal Senate
representation, as well as provide for election of the president
by an electoral college in which small states were overrepresented.

Martin
argued that the Congress had only the powers it was expressly delegated.
He said that the Constitution was the creation of the states, which
retained all other powers. Marshall, in response, lectured Martin
that Martin misunderstood what had happened in the Philadelphia
Convention (of which Marshall had not been a member) and told him
that since the Tenth Amendment did not include the word "expressly,"
Congress's powers were more extensive than Martin said.

To recapitulate:
in 1788, Marshall's committee said the Congress would only have
the powers it was expressly delegated. Then the Tenth Amendment,
which said that Congress had only the delegated powers, was added
to insure that a principle said to be implicit was explicit. Finally,
Marshall said that the Tenth Amendment proved that the principle
Federalists had called implicit was not included at all!

Third,
Marshall "corrected" Martin's uncontroversial statement
that the Constitution was the creature of the states — each of which
had ratified it for itself and only itself — by saying that the
Constitution was the creation of one American people. Of course,
there is no mechanism in the Constitution for one American people
to speak; elections, whether of representatives, of senators, or
of presidents and vice presidents, are held federally, not nationally
(as the presidential election of 2000 demonstrated).

Martin argued
that the Necessary and Proper Clause of Article I, Section 8 did
not empower Congress to charter a bank corporation, because doing
so was not necessary to exercise of the enumerated powers earlier
in that section. Marshall, for the Court, lectured Martin that “necessary”
did not mean “absolutely” necessary, but empowered Congress to adopt
legislation “conducive” to a power’s end.

One could
add more, but the point is clear: Marshall's McCulloch decision,
a landmark of centralization, is a tissue of unfounded assertions
(to be no more candid).

Numerous
other opinions of the Marshall Court — notably Fletcher v. Peck,
Dartmouth College v. Woodward, Martin v. Hunter's Lessee,
and Gibbons v. Ogden — handled the Constitution in the same
way: despite the version of the Constitution presented by Federalists
at the time of the ratification debates, federal judges' "constitutional
law" consistently centralized the government. They often did
so by offering novel definitions of common words and making patently
counter-factual assertions, as in McCulloch.

As Justice
William Brennan, the closest thing to a 20th-century
Marshall, would say, with five votes, a justice can do anything.
This "Rule of Five" was not enunciated in those terms
before Brennan, but it might as well have been. Republicanism —
rule via elected officials; federalism — the division of powers
between the state and federal governments; and limited government
have been the perennial victims of judicial misconstruction of the
Constitution. The case names and subjects under dispute have changed,
but the tendency has been the same: a persistent power grab by the
federal government, in the persons of federal judges. Over time,
the arrogation has been increasingly bald-faced.

Suppose that
a federal judge opposed this tendency of "constitutional law"
to distort the constitutional system; might he not counteract it?
The form of legal education in American law schools today makes
that exceedingly unlikely.

Since the beginning
of the 20th century, legal education has been dominated
by the "case method" of instruction, which substitutes
reading of judicial opinions for historical study. Thus, "Constitutional
Law" classes feature a heaping helping of the opinions of John
Marshall, William Brennan, and their ilk, and no consideration at
all of the debates in the ratification conventions in which Federalists
authoritatively told the American people how the Constitution would
work. Only the mischaracterizations, in other words, and not the
truth.

Lawyers-in-training
are never told that Marshall's opinions came out exactly, precisely,
completely, perfectly opposite where he and his fellow Virginia
Ratification Convention Federalists explicitly and vociferously
said they would, or that William Brennan's account of the Fourteenth
Amendment's Equal Protection Clause has no relationship to that
provision's intended meaning. Even "originalist" judges,
then, are unlikely to be very originalist.

It is an infuriating
tale. I have written a
book about it
.

June
11, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail
], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution
, new from
Regnery today, which tells the whole story.

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