Constitutional Futility

The feature article of the June 2004 issue of "The Insider," published by The Heritage Foundation in Washington, D.C., is one of dozens of articles written over the past twenty years or so by Roger Pilon of the Cato Institute urging Americans to educate themselves on how the Constitution supposedly limits government. Cato Institute staffers are known for carrying little pocket-sized copies of the Constitution around with them, presumably so that they will never miss a chance to prove to anyone who will listen that there is indeed a way of limiting government: enforce the Constitution.

But this whole enterprise of preaching about the Constitution, as conservatives and libertarians have been doing since at least the 1930s, is utterly futile. It has had no effect whatsoever, yet Cato, Heritage, and many other institutions continue to churn out essentially the same old arguments about how the Constitution can limit government.

The reason all these efforts are useless is that those who partake in them invariably ignore any serious discussion of how constitutional restrictions on government can be seriously enforced. They typically implore the public to educate itself, as though politicians will then magically transform into dutiful tribunes of the people, take their advice, and shut down most of the government. Or they believe in the pie-in-the-sky notion that the federal judiciary could somehow be reeducated and turned into modern-day Thomas Jeffersons, writing such things in their judicial decisions as "that government is best which governs least."

This is all extraordinarily naïve. The government has had an iron grip on the American educational system for generations, and it's not about to ease up on that grip by teaching American school children about the virtues of limited government. This is true of all levels of education, including – and especially – the law schools. Furthermore, elementary public choice theory, which Cato Institute scholars should be aware of, suggests that this crusade will inevitably fail. The reason is straightforward: The parties who are interested in limited constitutional government are widely dispersed and not very well organized politically (i.e., the general public); whereas the advocates of ever-expanding legal plunder (the state itself, and all of its special-interest groups) tend to be much more concentrated and well organized. Therefore, it is the nature of politics that the enemies of constitutional limitations on government will win out, as in fact they have in the U.S. for well over a century.

The Constitutionalists’ Fatal Conceit

The fatal flaw in the thinking of the libertarian/conservative constitutionalists stems from their unawareness or willful ignorance of how the founders themselves believed the Constitution could be enforced: by the citizens of the free, independent, and sovereign states, not the federal judiciary. The Constitution not only sought to limit government with its "enumerated powers," something that Pilon emphasizes, or the system of checks and balances, but also with the much more important doctrine of divided sovereignty. That is, the citizens of the states, as well as all other organs of government, were to have an equal voice in constitutional matters. As political philosopher Gottfried Dietze explained in America’s Political Dilemma: From Limited to Unlimited Democracy (p. 67), "Federalism, instituted to enable the federal government to check oppressions by the governments of the states, and vice versa, appears to be a supreme principle of the Constitution (emphasis added).

That is, the central government was given certain abilities to police attempted infringements upon liberties – especially economic liberties – of the states, but at the same time the Tenth Amendment reserved to the states, respectively, and the people, the right to police or veto the despotic and unconstitutional usurpations of the central government. States’ rights, in other words, was the key to enforcing the constitutional limitations on the central state. If the people were to be sovereign over their central government, it was to be accomplished as members of political communities organized at the state and local levels.

But the system of dual sovereignty was all but destroyed by the War to Prevent Southern Independence. As Dietze further observed (p. 73): "[B]efore the Civil War . . . the nature of American federalism was still a subject of debate. The outcome of the Civil War ended that debate. The Nationalists emerged as victors. National power increased as the twentieth century approached [along with] the disappearance of states’ rights." That period of history, Dietze concluded, was "characterized by an increasing interference with economic freedom" and "constitutes a constitutional revolution that can well be termed a reversal of the revolution of 1787."

The Quixote-like libertarian constitutionalists are wasting their time because they fail to acknowledge the essential truth about Abraham Lincoln’s war: It overthrew the Constitution of 1789 by destroying the system of dual sovereignty and, in so doing, ended any hope that the citizens would remain sovereign over their own government. Indeed, early twentieth century statists and imperialists like Woodrow Wilson celebrated this fact. As Wilson approvingly wrote in his book, Constitutional Government in the United States (Transactions Publishers Reprint, p. 178), "The War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers." Of course, Thomas Jefferson and other founders always understood that if the day were ever to come when the federal government would become the final judge of the limits of its own powers, then it would eventually decide that there were, in fact, no limits to its powers. That day has long since arrived.

The Forgotten Jeffersonian Tradition

Perhaps the clearest statement of the Jeffersonian, states’ rights tradition of dual sovereignty as a defense of freedom is Jefferson’s own Kentucky Resolve of 1798 (See William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, Independent Institute, 2003). In response to the Adams administration’s alien and sedition acts, the latter of which made it essentially illegal to criticize the central government, Jefferson wrote:

First of all, note that Jefferson referred to the "United States" in the plural, signifying the fact that the free, independent, and sovereign states were part of a compact of states and not a part of one consolidated empire ("The United States," singular), as they are today.

In all cases of a compact where there is no common judge, such as with the Constitution, Jefferson argued that each party has an equal right to judge for itself the constitutionality of federal government actions. James Madison concurred in the Virginia Resolve of 1798, writing that if the citizens of a state decided that the central government enacted a "dangerous exercise of powers," then the citizens "were duty bound to interpose for arresting the progress of the evil . . ."

Thanks to governmental control of education, the nationalists have so dominated American political discourse that today most Americans have only been exposed to the New England version of American history. Consequently, they are completely unaware of the Jeffersonian states’ rights philosophy and tradition. This philosophy has been so severely censored that William J. Watkins’s 2003 Independent Institute book on the Virginia and Kentucky Resolves is the first book to be published on the subject in over 100 years.

The Jeffersonian tradition was carried on in the quarter century after Jefferson’s death most forcefully by John C. Calhoun, who Murray Rothbard characterized as one of America’s greatest political philosophers. Unfortunately, Calhoun has been marginalized and defamed by the nationalists, who consider themselves to be the gatekeepers of America’s Official History. Nevertheless, Calhoun’s book, A Disquisition on Government, is one of the most insightful works in all of American history, filled with ingenious insights about the nature of democratic politics and forecasts that have all proven to be amazingly accurate.

A written Constitution is a good thing, argued Calhoun, but those who favor enforcing it "would be overpowered" eventually, by the "party of government." "At first they might command some respect, and do something to stay the encroachment; but they would, in the progress of the contest, be regarded as mere abstractionists; and, indeed, deservedly, if they should indulge in the folly of supposing that the 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 constitution . . . . The end of the contest would be the subversion of the constitution." (See Ross M. Lence, Union and Liberty: The Political Philosophy of John C. Calhoun, Liberty Fund, 1992, p. 27).

Calhoun further forecast that all of the constitutional restrictions on government "would ultimately be annulled, and the government be converted into one of unlimited powers." This has certainly come true, despite all the efforts of "abstractionists" like Roger Pilon and several generations of similarly well-meaning constitutionalists. This is why Calhoun, like Jefferson, believed it was absolutely essential for the citizens of the states to possess "this negative power – the power of preventing or arresting the action of the government – be it called by what term it may – veto, interposition, nullification, check, or balance of power . . ." It is precisely such negative power, wrote Calhoun, that "forms the constitution" (p. 28). It is the very essence of constitutional liberty. This power, however, was destroyed in 1865.

The Jeffersonian Constitution

The Jeffersonian view of the Constitution prevailed until it was overthrown by force of arms in 1861–1865. The best presentation of this view is St. George Tucker’s book, View of the Constitution of the United States. Tucker was a professor of law at William and Mary College, fought in the Revolution, became a successful lawyer afterward, adopted a young John Randolph whose mother had been widowed, and authored one of the first plans for the abolition of slavery in Virginia (in 1796).

Tucker warned that any confederacy would become a despotism if the central government ever ceased being merely the agent of the states that created it and delegated certain enumerated powers to it. "The union of the SOVEREIGNTY of a state with the government," he wrote, "constitutes a state of USURPATION and absolute TYRANNY, over the PEOPLE" (p. 24). Moreover, if the "unlimited authority" of the central state were ever to extend so far as to "change the constitution itself, the government, whatever be its form, is absolute and despotic . . ." (p. 27). This, too, has occurred, via "judicial activism" in the post-1865 era.

The system of checks and balances is not what protects the people from tyranny, Tucker explained. What did was "the nature and extent of those powers which the people have reserved to themselves as the Sovereign." (p. 28). That is, it all depends on states’ rights. Moreover, the "doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind" (p. 112). Having been created by the citizens of the states, a free government must by bound to the Constitution "by its creators, the several states in the union, and the citizens thereof." Otherwise, despotism is the inevitable result.

Tucker’s contemporary, Virginia Senator John Taylor, was also a Jeffersonian who mocked the idea that the founders would ever have trusted the Supreme Court to be the sole judge of constitutionality (and the limits of government). "Being an essential principle for preserving liberty," he wrote in Tyranny Unmasked (p. 198), the Constitution "never could have designed to destroy it, by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments."

Until 1865, virtually every state of the union invoked the Jeffersonian states’ rights tradition in defense of liberty and against encroachments on liberty by the central government. The New England states "nullified" President James Madison’s trade embargo (1807); they also invoked Jefferson’s Kentucky Resolve in refusing to participate in the War of 1812; the New England Federalists plotted to secede for over a decade after Jefferson’s election to the presidency in 1800, culminating with the Hartford Secession Convention of 1814; Ohio, Kentucky, Tennessee, Connecticut, South Carolina, New York and New Hampshire all invoked the Kentucky Resolve to oppose the existence of the Bank of the United States within their borders; some New England states nullified the Fugitive Slave Act by refusing to enforce it; and South Carolina famously nullified the infamous 1828 Tariff of Abominations. The rights of nullification and secession, which were accepted as inalienable rights of the citizens of all the states, ceased to exist after 1865.

The Classical Liberal States’ Rights Tradition

Unlike Cato Institute scholars, Liberty magazine, Reason magazine, and most other contemporary "libertarian" organizations and publications (the Mises Institute and Independent Institute being the major exceptions), the last generation of classical liberals were cognizant of the importance of the great Jeffersonian states’ rights tradition to the preservation of liberty and prosperity. In The Income Tax: Root of All Evil (p. 83) Frank Chodorov wrote that

Stalin, Mussolini, and Lenin liquidated any and all competing authorities, including the sovereign states of their respective countries, before gaining totalitarian power, Chodorov wrote.

To Chodorov, dual sovereignty or "divided authority" was "the bulwark of freedom" for "Freedom is the absence of restraint. Government cannot give freedom, it can only take it away. The more power the government exercises the less freedom will the people enjoy. And when government has a monopoly of power the people have not freedom. That is the definition of absolutism – monopoly of power." This lesson seems lost on most of today’s libertarian constitutionalists, with their handy dandy pocket constitutions and no apparent knowledge at all of the real American liberal tradition, the Jeffersonian states’ rights tradition.

Ludwig von Mises is another classical liberal of the last generation who understood the importance of the Jeffersonian philosophy and was not fooled by nationalist propaganda. Commenting on the effects of interventionism that was spawned in the United States in the post-1865 era, and in Switzerland during the same period, Mises wrote in his book, Omnipotent Government (p. 268) of how

To Mises, the whole fight against government control was fundamentally a fight against consolidated or monopoly government and in favor of decentralization and states’ rights. This was also a theme of F.A. Hayek’s work, especially The Road to Serfdom, and of Felix Morley’s classic, Freedom and Federalism. "Socialism and federalism are necessarily political opposites," Morely wrote, "because the former demands that centralized concentration of power which the latter by definition denies" (pp. 3–4).

A young twenty-three-year-old Murray Rothbard also expressed the importance of states’ rights in the fight for a free society in a May 11, 1949 letter to the headquarters of the States Rights Party in Jackson, Mississippi. "Although a New Yorker born and bred," Rothbard wrote, "I was a staunch supporter of the Thurmond movement [i.e., the Strom Thurmond for President movement). But the problem with the Thurmond movement, said Rothbard, was that it was too narrow, focusing primarily on the "Civil Tyranny Program," which is how he described impending "civil rights" legislation. The "Civil Tyranny" program should be opposed as an affront to property rights and freedom of association, said the young Rothbard, but what was really needed was a national, as opposed to a merely regional, states’ rights party to fight the "power hungry Washington bureaucracy." Jefferson would have wholeheartedly agreed.

The great classical liberal historian of liberty, Lord Acton, was another important historical figure who was not duped by nationalist rhetoric. In a November 4, 1866 letter to General Robert E. Lee Lord Acton wrote that

The Enemies of States’ Rights

Despots and tyrants have always been the enemies of states’ rights, as have all manner of power-hungry politicians and their intellectual supporters, such as modern-day neoconservatives, especially the nationalistic warmongers at the Claremont Institute. "9/11 proves more than ever that we need a strong federal government," Harry Jaffa declared during my May 2002 debate with him at the Independent Institute, apparently oblivious to the fact that it was the failure of our "strong federal government" that allowed 9/11 to happen in the first place.

Then there are the weak-willed or cowardly academics, who are intimidated by the statists’ tactic of falsely identifying states’ rights with racism or slavery as a means of censoring all discussion of it. These are people who are much more concerned with being "accepted" by the establishment than with discovering historical truths or defending the free society.

In case there is any doubt about the love/hate relationship that despots and tyrants have with regard to states’ rights, consider Adolf Hitler’s writings in Mein Kampf (Houghton-Mifflin 1998 edition). Hitler mocked the "so-called sovereign states" of Germany and condemned their "impotence" and "fragmentation." He lavishly praised Otto von Bismarck for all but abolishing states’ rights in Germany, which was supposedly a victory in the "struggle between federalism and centralization . . ." (p. 565). The abolition of states’ rights, Hitler correctly noted, was essential for the establishment of "a powerful national Reich" (p. 572).

To make his case against states’ rights in Mein Kampf Hitler quite logically turned to Abraham Lincoln’s first inaugural address for intellectual ammunition. "The individual states of the American Union," Hitler wrote, "could not have possessed any state sovereignty of their own. For it was not these states that formed the Union, on the contrary it was the Union which formed a great part of the so-called states" (p. 566).

This is exactly the false theory of the American founding that Lincoln invented in his first inaugural address, where he said:

This statement is a-historical as well as logically absurd. It is not possible for the union of two things to be older than either of the things it is a union of. That would be like saying a marriage (marital union) can be older than either spouse. Besides that, it was the citizens of the free, independent and sovereign states who adopted the Articles of Confederation and the Constitution, not "the whole people" of the union. Lincoln was a master of legalistic double talk, and this was one of his most "masterful" passages. It is little wonder that, some sixty years later, Adolf Hitler would find it so appealing.

In his 1962 book, Patriotic Gore (pp. xvi–xvii), the literary critic Edmund Wilson noted that Lincoln had much in common with two other "uncompromising dictators" of the nineteenth and early twentieth centuries, Lenin and Bismarck.

Each of these men, wrote Wilson, was an uncompromising dictator while in office who was succeeded by newly-formed government bureaucracies that became so powerful that "all the bad potentialities of the policies [they] had initiated were realized, after [their] removal, in the most undesirable ways"(pp. xviii–xix).

The death of the rights of secession and nullification was achieved in 1865, and the final nails were pounded into the Jeffersonian, states’ rights coffin in 1913, with the adoption of the income tax, the Federal Reserve, and the Seventeenth Amendment. The income tax declared, essentially, that all earned income is the property of the state, and the state will decide how much income working Americans may keep for themselves by determining the rates of taxation.

The Fed soon became an enormous and menacing tool of political control based in Washington, D.C., with the board of governors. The Seventeenth Amendment, which established the popular election of senators, relieved U.S. senators from the obligations they once had to vote only for legislation that was generally in the interest of the citizens of their states, since they were appointed by state legislatures. After 1913, they were "obligated’ mostly to whomever could give them the biggest campaign contributions.

If there is any lesson to be learned here, it is that constitutional liberty – in America or anywhere else – is an empty slogan unless the people possess the rights of secession and nullification. This is how the founders intended the people to be sovereign over their government. Until these powers are restored – and the Fed, the income tax, and the Seventeenth Amendment abolished – Americans have no hope of ever returning to a regime of constitutional liberty.