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 178788. 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