Doomed from the Start: The Myth of Limited Constitutional Government in America

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After spending a lifetime in politics John C. Calhoun (U.S. Senator, Vice President of the United States, Secretary of War) wrote his brilliant treatise, A Disquisition on Government, which was published posthumously shortly after his death in 1850. In it Calhoun warned that it is an error to believe that a written constitution alone is u201Csufficient, of itself, without the aid of any organism except such as is necessary to separate its several departments, and render them independent of each other to counteract the tendency of the numerical majority to oppression and abuse of poweru201D (p. 26). The separation of powers is fine as far as it goes, in other words, but it would never be a sufficient defense against governmental tyranny, said Calhoun.

Moreover, it is a u201Cgreat mistake,u201D Calhoun wrote, to suppose that u201Cthe mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted, with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powersu201D (emphasis added). The party u201Cin possession of the governmentu201D will always be opposed to any and all restrictions on its powers. They u201Cwill have no need of these restrictionsu201D and u201Cwould come, in time, to regard these limitations as unnecessary and improper restraints and endeavor to elude them . . .u201D

The u201Cpart in favor of the restrictionsu201D (i.e., strict constructionists) would inevitably be overpowered. It is sheer folly, Calhoun argued, to suppose that u201Cthe party in possession of the ballot box and the physical force of the country, could be successfully resisted by an appeal to reason, truth, justice, or the obligations imposed by the constitutionu201D (emphasis added). He predicted that u201Cthe restrictions [of government power in the Constitution] would ultimately be annulled, and the government be converted into one of unlimited powers.u201D He was right, of course.

This is a classic statement of the Jeffersonian states’ rights position. The people of the free, independent and sovereign states must be empowered with the rights of nullification and secession, and a concurrent majority with veto power over unconstitutional federal laws, if their constitutional liberties are to have any chance of protection, Calhoun believed. The federal government itself can never, ever be trusted to limit its own powers.

How did Calhoun come to such conclusions? One answer to this question is that he was a serious student of politics, history, and political philosophy for his entire life, and understood the nature of government as much as anyone else alive during his time. He also witnessed first hand or quickly learned about the machinations of the sworn enemies of limited constitutional government in America: men such as Alexander Hamilton, John Adams, John Marshall, Joseph Story and Daniel Webster.

The Founding Fathers of Constitutional Subversion

America’s first constitution, the Articles of Confederation and Perpetual Union, did a much better job of limiting the tyrannical proclivities of government than the U.S. Constitution ever did, and it did so while permitting enough governmental power to field an army that defeated the British Empire. The limits on government that the Articles contained outraged the advocates of unlimited governmental powers, such as Alexander Hamilton, which is why the u201CPerpetual Unionu201D that was created by the Articles was abolished as all the states peacefully seceded from that union

The constitutional convention was Hamilton’s idea as much as anyone’s. Upon arriving at the convention Hamilton laid out the plan of his fellow nationalists: a permanent president or king, who would appoint all governors, who would have veto power over all state legislation. This monopoly government would then impose on the entire nation a British-style mercantilist empire without Great Britain, complete with massive corporate welfare subsidies, a large public debt, protectionist tariffs, and a central bank modeled after the Bank of England that would inflate the currency to finance the empire.

Hamilton did not get his way, of course, thanks to the Jeffersonians. When the Constitution was finally ratified, creating a federal instead of a national or monopolistic, monarchical government, Hamilton denounced the document as u201Ca frail and worthless fabric.u201D He and his Federalist/nationalist colleagues immediately went to work destroying the limits on government contained in the Constitution. He invented the notion of u201Cimplied powersu201D of the Constitution, which allowed him and his political heirs to argue that the Constitution is not a set of limitations on governmental powers, as Jefferson believed it was, but rather a potential stamp of approval on anything the government ever wanted to do as long as it is u201Cproperlyu201D interpreted by clever, statist lawyers like Alexander Hamilton or John Marshall. Hamilton u201Cset out to remold the Constitution into an instrument of national supremacy,u201D wrote Clinton Rossiter in Alexander Hamilton and the Constitution.

One of the first subversive things Hamilton did was to rewrite the history of the American founding by saying in a public speech on June 29 1787, that the states were merely u201Cartificial beingsu201D and were never sovereign. The u201Cnation,u201D not the states, was sovereign, he said. And he said this while the constitutional convention was busy crafting Article 7 of the Constitution, which holds that the Constitution would become the law of the land only when nine of the thirteen free and independent states ratified it. The states were to ratify the Constitution because, as everyone knew, they were sovereign and were delegating a few express powers to the central government for their mutual benefit.

It was Hamilton who first invented the expansive interpretations of the General Welfare and Commerce Clauses of the Constitution, which have been used for generations to grant totalitarian powers to the central state. He literally set the template for the destruction of constitutional liberty in America the moment it became apparent at the constitutional convention that he and his fellow nationalists would not get their way and create a u201Cmonarchy bottomed on corruption,u201D as Thomas Jefferson described the Hamiltonian system.

Hamilton’s devoted disciple, John Marshall, was appointed chief justice of the United States in 1801 and served in that post for more than three decades. His career was a crusade to rewrite the Constitution so that it would become a nationalist document that destroyed states’ rights and most other limitations on the powers of the centralized state. He essentially declared in Marbury vs. Madison that he, John Marshall, would be the arbiter of constitutionality via u201Cjudicial review.u201D The Jeffersonians, meanwhile, had always warned that if they day ever came when the federal government became the sole arbiter of the limits of its own powers, it would soon declare that there were, in fact, no limits on its powers. This of course is what the anti-Jeffersonians wanted — and what has happened.

In the case of Martin v. Hunter’s Lessee Marshall invented out of thin air the notion that the federal government had the u201Crightu201D to veto state court decisions. Marshall also made up the theory that the so-called Supremacy Clause of the Constitution makes the federal government u201Csupremeu201D in all matters. This is false: The federal government is only u201Csupremeu201D with regard to those powers that were expressly delegated to it by the free and independent states, in Article 1, Section 8.

Marshall also repeated Hamilton’s bogus theory of the American founding, claiming that the u201Cnationu201D somehow created the states. He amazingly argued that the federal government was somehow created by u201Cthe whole peopleu201D and not the citizens of the states through state political conventions, as was actually the case. In the name of u201Cthe people,u201D Marshall said, the federal government claimed the right to u201Clegitimately control all individuals or governments within the American territoryu201D (Edward S. Corwin, John Marshall and the Constitution, p. 131).

All of the Hamilton/Marshall nonsense about the founders having created a monopolistic, monarchical government and having abolished states rights or federalism was repeated for decades by the likes of Supreme Court Justice Joseph Story and Daniel Webster. Story was u201Cthe most Hamiltonian of judges,u201D wrote Clinton Rossiter. His famous book, Commentaries on the Constitution, published in 1833, could have been entitled u201CCommentaries on Alexander Hamilton’s Commentaries on the Constitution,u201D says Rossiter. He u201Cconstrued the powers of Congress liberally,u201D i.e., meaning there were virtually no limits to such powers; and u201Cupheld the supremacy of the nation,u201D i.e., of monopolistic, monarchical, and unconstitutional government. Stories Commentaries provided a political roadmap for u201Cthe legal profession’s elite or at least among the part of it educated in the North during the middle years of the nineteenth century,u201D wrote Rossiter.

Story’s u201Cfamousu201D Commentaries are filled with phony history and illogic. On the Articles of Confederation, he wrote that u201CIt is heresy to maintain, that a party to a compact has a right to revoke that compact.u201D But of course the Articles were revoked!

Secession of a single state would mean u201Cdissolution of the government,u201D Story wrote. Nonsense. After eleven Southern states seceded in 1860—61 the U.S. government proceeded to field the largest and best-equipped army in the history of the world up to that point. It was hardly u201Cdissolved.u201D

In a classic of doubletalk, Story admitted that u201CThe original compact of society . . . in no instance . . . has ever been formally expressed at the first institution of a state.u201D That is, there was never any agreement by the citizens of any state to always and forever be obedient to those who would enforce what they proclaim to be u201Cthe general will.u201D Nevertheless, said Story, u201Cevery part should pay obedience to the will of the whole.u201D And who is to define u201Cthe will of the wholeu201D? Why, nationalist Supreme Court justices like Joseph Story and John Marshall, of course.

Story admitted that social contract theories of u201Cvoluntaryu201D state formation were mere theoretical fantasies. He also held the rather creepy and totalitarian, if not barbarian view that u201CThe majority must have a right to accomplish that object by the means, which they deem adequate for the end . . . . The will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual.u201D

What Story is saying here is not that there should be a national plebescite on all policy issues that can express the u201Cwill of the majority.u201D No, as with Hamilton he adopted the French Jacobin philosophy that such a u201Cwillu201D was possessed in the minds of the ruling class, and that that class (the Storys, Hamiltons, Marshalls, etc.) somehow possessed u201Cabsoluteu201D power as long as it has the military means to u201Cmake its will effectual.u201D Here we have the theoretical basis for Abe Lincoln’s waging of total war on his own citizens.

Contrary to the political truths expressed by Calhoun which have all proven to be true, by the way Story expressed the elementary-schoolish view that the appropriate response to governmental oppression should be only via u201Cthe proper tribunals constituted by the governmentu201D which would supposedly u201Cappeal to the good sense, and integrity, and justice of the majority of the people.u201D Trust the politicians and lifetime-appointed federal judges to enforce their view of u201Cjustice,u201D in other words. That hasn’t really worked out during the succeeding 170 years.

Story also repeated John Marshall’s fable that the Supremacy Clause created a monopolistic government in Washington, D.C. and effectively abolished states’ rights, along with the equally ridiculous myth that the Constitution was magically ratified by u201Cthe whole peopleu201D (presumably not counting women, who could not vote, or slaves and free blacks).

Another famous and influential subverter of the Constitution was Daniel Webster, who repeated many of these same nationalist fables during his famous U.S. Senate debate with South Carolina’s Robert Hayne in January of 1830. This is a debate that Hayne clearly won according to their congressional colleagues, and the media of the day, although nationalist historians (a.k.a., distorians) have claimed otherwise.

The first Big Lie that Webster told was that u201Cthe Constitution of the United States confers on the government itself . . . the power of deciding ultimately and conclusively upon the extent of its own authority.u201D No, it does not. John Marshall may have wished that it did when he invented judicial review, but the document itself says no such thing. As Senator John Taylor once said, u201CThe Constitution never could have designed to destroy [liberty], by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments.u201D

Webster then presented a totally false scenario: u201COne of two things is true: either the laws of the Union are beyond the discretion and beyond the control of the States; or else we have no constitution of general government . . .u201D Huh? All the laws? Are the people to have no say whatsoever about laws they believe are clearly constitutional? Apparently so, said Daniel Webster.

The a-historical fairy tale about the Constitution being somehow ratified by u201Cthe whole peopleu201D was repeated over and over by Webster. His strategy was apparently to convince his audience not by historical facts but by repetition and bluster. u201CThe Constitution creates a popular government, erected by the people . . . it is not a creature of the state governments,u201D he bellowed. Anyone who has ever read Article 7 of the U.S. Constitution knows that this is utterly false.

In fine French Jacobin fashion, Webster asked, u201CWho shall interpret their [the peoples’] will? Why u201Cthe government itself,u201D he said. Not through popular votes, mind you, but through the orders, mandates, and dictates of u201Cthe government itself.u201D The people themselves were to have nothing to do with u201Cinterpretingu201D their own u201Cwill.u201D

Article 3, Section 3 of the U.S. Constitution clearly defines treason under the constitution: u201CTreason against the United States shall consist in levying war against them, or in adhering to their enemies, giving them Aid and Comfort.u201D Thus, treason means levying war against u201Cthem,u201D the sovereign states. This is why Lincoln’s invasion of the Southern states was the very definition of treasonous behavior under the Constitution. Had the North lost the war, he could have been justifiably hanged.

Webster attempted to re-define treason under the Constitution by claiming that u201CTo resist by force the execution of a [federal] law, generally, is treason.u201D Thus, if the federal government were to invade a sovereign state to enforce one of its laws, a clearly treasonous act under the plain language of the Constitution, resistance to the invasion is what constitutes treason according to Webster. He defined treason, in other words, to mean exactly the opposite of what it actually means in the Constitution.

Then there is the elementary-schoolish faith in democracy as the only necessary defense against governmental tyranny: u201CTrust in the efficacy of frequent elections,u201D u201Ctrust in the judicial power.u201D Well, we tried that for decades and decades, Daniel, and it didn’t work.

All of these false histories and logical fallacies were repeated by other nationalist politicians for decades. This includes Abraham Lincoln, who probably lifted his famous line in The Gettysburg Address from this statement by Webster during his debate with Hayne: u201CIt is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law.u201D Of course, they did not.

As Lord Pete Bauer once said in commenting on the rhetoric of communism, whenever one hears of u201Cthe people’s republicu201D the u201Cpeoples’ government,u201D etc., it is a sure bet that the people have nothing whatsoever to do with, or control over that government.

Hamilton, Marshall, Webster, Story, and other nationalists kept up their rhetorical fog-horning for decades, trying to convince Americans that the founding fathers did, after all, adopt Hamilton’s plan of a dictatorial executive that abolished states rights and was devoted to building a mercantilist empire in America that would rival the British empire. But their rhetoric had little or no success during their lifetimes.

New Englanders plotted to secede for a decade after Thomas Jefferson was elected president in 1800; all states, North and South, made use of the Jeffersonian, states’ rights doctrine of nullification to oppose the Fugitive Slave Act, protectionist tariffs, the antics of the Bank of the United States, and other issues up until the 1860s. There was a secession movement in the Mid-Atlantic states in the 1850s, and in 1861 the majority of Northern newspaper editorialists were in support of peaceful secession (see Northern Editorials on Secession by Howard Perkins).

The false, nationalist theory of the American founding was repeated by Abraham Lincoln in his first inaugural address (and praised decades later by Adolf Hitler in Mein Kampf, wherein Hitler mad his case for abolishing states’ rights and centralizing all political power in Germany). In the same speech Lincoln threatened u201Cinvasionu201D and u201Cbloodshedu201D (his words) in any state that failed to collect the newly-doubled federal tariff tax. He then followed through with his threat.

The only group of Americans to ever seriously challenge this false nationalist theory, Southern secessionists, were mass murdered by the hundreds of thousands, including some 50,000 civilians according to James McPherson; their cities and towns were bombed and burned to the ground, tens of millions of dollars of private property was plundered by the U.S. Army; Southern women, white and black, were raped; and total war was waged on the civilian population. This is what finally cemented into place the false, Hamiltonian/nationalist theory of the American founding, for the victors always get to write the history in war. Government of the people, by the people, for the people, is u201Climited onlyu201D by the state’s u201Cpower to make its will effectual,u201D as Joseph Story proclaimed. The technology of mass murder in the hands of the state finally made this will u201Ceffectualu201D in the first half of the 1860s. Americans have been mis-educated and misinformed about their own political history ever since. It is this mis-education, this false theory of history, that serves to prop up the Hamiltonian empire that Americans now slave under.

Thomas J. DiLorenzo [send him mail] is professor of economics at Loyola College in Maryland and the author of The Real Lincoln; Lincoln Unmasked: What You’re Not Supposed To Know about Dishonest Abe and How Capitalism Saved America. His latest book is Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution — And What It Means for America Today.

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