1d - the form and shape of the constitutional order

Chapter One – The Form and Shape of the American Constitutional Order

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THE FORM AND SHAPE OF THE AMERICAN

CONSTITUTIONAL ORDER

―If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself…‖ —JAMES MADISON, FEDERALIST NO. 51

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WHY LIMIT GOVERNMENT?

NLIMITED POWER IS IN ITSELF A BAD and

dangerous thing,‖ counseled the Frenchmen Alexis de Tocqueville. ―Human beings are

not competent to exercise it with discretion. God alone can be omnipotent, because His wisdom and justice are always equal to His power.‖ He reasoned, ―There is no power on earth so worthy of honor in itself, or clothed with rights so sacred, that I would admit its uncontrolled and all-predominant authority, when I see the right and the means of absolute command conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is a germ of tyranny, and I seek to live elsewhere, under other laws.‖2 History abounds with lessons of historical periods marked by unfettered power that inexorably yielded to despotism and tyranny.3

Why limit government? To libertarian Americans, the necessity of placing limits upon political power has been self-evident. Mankind is by nature flawed and sinful.4 Historic evidence abounds of the perilous consequences of political power without effective restraints to thwart the concentration of power. Why the need for limitations on power? We can start with sacred scripture. In the Biblical narrative of First Samuel Eight, by way of the prophet Samuel, God counseled the wayward Israelites of the perils posed by their want of an absolute monarch to rule over them in place of the rule of judges under God. Prior to that

1 James Madison, ―Federalist #51,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 356. 2 Alexis de Tocqueville, Democracy in America, Richard D. Heffner ed. (New York, NY: Penguin Putnam, 1956), 114-115. 3 Jim Nelson Black, When Nations Die – America on the Brink: Ten Warning Signs of a Culture in Crisis (Wheaton, IL: Tyndale House Publishers, 1994), 64-

70. 4 M. Stanton Evans, The Theme is Freedom: Religion, Politics, and the American Tradition (Washington, DC: Regnery Pub., 2004), 103. ―Mistrust of human

nature armed with power was universal among the Founders, and the basis of the limited government system that they established. Hostility to unchecked power was the leading idea in all debates about the Constitution, expressed in one fashion or another by all the major actors. A fair statement of the composite view is that the impulses and disorders of human nature made government necessary, but also made it dangerous. Hence the need for checks and balances, divided powers, safeguards of all descriptions.‖

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Revolution, Republic, and the Principles of 1798

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time, as Judges 21:25 reports, ―there was no king Israel: every man did that which was right in his own eyes,‖ and there were God-ordained judges to adjudicate disputes among men:5

(10) And Samuel told all the words of the LORD unto the people that asked of him a king. (11) And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. (12) And he will appoint him captains over thousands, and captains over fifties; and will set them to earn his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots. (13) And he will take your daughters to be confectionaries, and to be cooks, and to be bakers. (14) And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants. (15) And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants. (16) And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. (17) He will take the tenth of your sheep: and ye shall be his servants. (18) And ye shall cry out in that day because of your king which ye shall have chosen you; and the LORD will not hear you in that day. ¶(19) Nevertheless the people refused to obey the voice of Samuel; and they said, Nay; but we will have a king over us; (20) that we also may be like all the nations; and that our king may judge us, and go out before us, and fight our battles. (21) And Samuel heard all the words of the people, and he rehearsed them in the ears of the LORD. (22) And the LORD said to Samuel, Hearken unto their voice, and make them a king. And Samuel said unto the men of Israel, Go ye every man unto his city.6

Herein the Scriptures, there is no vindication of the absolutism customary among the ancients, but a professed mistrust of the absolute power welded by kings. As the ancient Israelites refused to heed the admonition of Samuel, his warning soon proved prescient. God intended civil government to be limited in power (Deut. 17:14-20), but relented and gave the Israelites the King they sought due to the hardness of their hearts. The conflict between Solomon‘s son, Rehoboam, and the elders of Judah (1 Kings 12:6-19) exemplifies the struggle between the ruler and the ruled.7 John Calvin surmised the actions of the disobedient Israelites‘, ―a formerly free people who sought royal dominance and subjected themselves to it and thus gave up their liberty really deserves no better.‖8 It served as a lesson to Jew and Gentile alike that the state was at best a necessary evil. While ordained of God, the state is administered by fallible men.9 The lesson posed by the prophet Samuel is reminiscent of John Acton‘s salutary proverb: ―Absolute power corrupts, and absolute power corrupts absolutely.‖10 The rationale for government is the same rationale for limited government. Ever liable to abuse power, sinful man cannot be trusted with unbridled power. ―Unlimited power,‖ echoed Cato‘s Letters, ―is so wild and monstrous a thing that however natural it be to desire it, it is as natural to oppose it; nor ought it to be entrusted with any mortal man, be his intentions ever so upright… It is the nature of power to be ever encroaching.‖11

America‘s founding generation were keenly aware of the moral quandaries posed by fallen man and the implications it raised for the body politic. Samuel Adams opined that ―ambition and lust for power… are predominate passions in the breasts of most men.‖ Rev. Jonathan Mayhew exclaimed: ―power is of a grasping, encroaching nature…[it] aims at extending itself and operating according to mere will, whenever it

5 Judges 21:25, The Holy Bible: King James Version (2000). 6 1 Samuel 8, The Holy Bible: King James Version (2000); David Boaz, ed. ―1 Samuel 8,‖ The Libertarian Reader: Classic and Contemporary Writings from Lao-Tzu

to Milton Friedman (New York: NY: The Free Press, 1997), 5. 7 Ibid., Boaz, ed. 8 Douglas Kelly, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through the 18th Centuries (Phillipsburg,

NJ: Presbyterian & Reformed Pub., 1992), 18. 9 Evans, The Theme is Freedom:, 134-35. 10 John Acton quoted in James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (Indianapolis, IN:

Liberty Fund, 2000), 13. 11 W. Kirk Wood, Nullification: A Constitutional History, Vol. 1, James Madison, Not the Father of the Constitution (Lanham, MD: Univ. Press of America,

2008), 12.


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meets with no balance, check, constraint or opposition of any kind.‖12 George Washington remarked, ―Government is not reason. It is not eloquence. Government is force; like fire it is a dangerous servant—and a fearful master.‖13 John Adams wrote: ―There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.‖14 This skepticism of power compelled these noble statesmen in support of a constitutionalism that effectuated meaningful limitations upon political power.

Astonishingly absolutism has been defended all through history. Absolute power, in the hands of a monarchial regime, was deemed requisite by many political theorists for advancing the common good.15 Such political formulas were contended for by such intellectual minds as Jean Bodin, Thomas Hobbes, and King James I of England. History has furnished instances of brief epochs where absolute monarchs ruled with sublime restraint, which allowed culture and civilization to thrive. But with unfettered powers, the odds are in favor of rulers like Nero or Caligula, not an enlightened philosopher-king.16 The concept of limited government had its origins in medieval Christian thought, in sharp contrast to the post-Enlightenment regimes of absolutism. The notion of divided power may be traced to the words of Jesus to the Pharisees: ―Render unto Caesar, the things that are Caesar‘s, and unto God the things that are God‘s.‖17 Christ made it clear that not all life was under the control of the state.18 In the Christian summation of the socio-political order, God ordained communities and nations. The civil authorities were reduced to the practical function of procuring peace, public order, and administering justice therein. The civil authorities did their duty under God, and alongside the ecclesiastical authorities, not above them. The eternal realm beyond our own concerns the spiritual and moral aspects of the human life. God stands as the just judge to right the wrongs of this temporal realm, and holds the civil officers accountable.19

Experience demonstrates the likelihood for tyranny where power was not balanced, circumscribed and diffused. The Founders‘ desire for free government was responsive to this predicament and manifests the prudence of their statesmanship. Their political philosophy rested on a minimalist state and popular sovereignty. Madison observed, ―If men

12 Nullification: A Constitutional History, Vol. 1, James Madison, Not the Father of the Constitution , 12; Evans, The Theme is Freedom:, 99. 13 George Washington quoted in James Bovard, Freedom in Chains (New York, NY: St. Martin‘s Press, 1999), 10. 14 John Adams quoted in Bovard, Freedom in Chains, 10. 15 Thomas R. Dye, American Federalism: Competition Among Governments (Lexington, MA: Lexington Books, 1990). ―All governments, even democratic

governments, are dangerous. They wield coercive power over the whole of society. They tax, penalize, punish, limit, confine, order, direct, and regulate. They seize property, restrict freedom, and even take lives, all under the claim of legitimacy. Governments expect people to accept these vexations as rightful. Thomas Hobbes justified the creation of such a dangerous institution by arguing that it was the only alternative to anarchy—a war of all against all, ‗where every man is enemy to every man‘ and life is ‗solitary, poor, nasty, brutish and short.‘ Only the ‗continual fear and danger of violent death‘ justified the establishment of a Leviathan.‖

16 Felix Morley, Freedom and Federalism (Indianapolis, IN: Liberty Fund, 1981), 45; Keith Whittington, ―Constitutionalism,‖ American Conservatism: An Encyclopedia. Bruce Frohnen, Jeremy Beer, and Jeffrey O. Nelson, eds. (Wilmington, DE: ISI Books, 2006), 192-193; John R. Graham, A Constitutional History of Secession (Gretna, LA: Pelican Pub. Co., 2002), 185.

17 John Eidsmore, God and Caesar: Christian Faith and Political Action (Westchester, IL: Crossway Books, 1984), 16; William D. Gairdner, The Trouble With Democracy: A Citizen Speaks Out (Toronto, Ontario, Canada: Stoddart Pub., 2001), 156-157. ―Render unto Ceasar the things which are Caesar‘s, and unto God the things which are God‘s.‘ Jesus thereby established the ‗two heads of the eagle‘ of which Hobbes and Rousseau (and later Marx and Hitler) complained: all citizens in Christian societies have two rulers, one earthly and one spiritual… It was Jesus, as Rousseau so bitterly complained, who ‗came to set up on earth a spiritual kingdom, which, by separating the theological from the political system, made the state no logner one, and brought about the internal divisions which have never ceased to trouble the Christian peoples.‘ Jesus created a ‗double power‘ and a ‗conflict of jurisdictions.‘ To all the later absolutist and totalitarian thinkers – especially totalitarian democrats – such a split loyalty was intolerable. They argued vociferously that political and social unity (as embodied in the utopian schemes of political planners) cannot possibly be achieved if power and moral allegiance are divided. The chief reason the modern secular welfare state has all but banished God and prayer from the public square has been to eliminate this conflict of loyalties.‖

18 Boaz, ed. ―1 Samuel 8,‖ The Libertarian Reader, 5. 19 Alexander Landi, ―Was the American Founding a Lockean Experiment?,‖Arguing Conservatism: Four Decades of the Intercollegiate Review, Mark Henrie, ed.

(Wilmington, DE: ISI Books, 2008), 203. ―The idea of limited government is not specifically modern, but rather was original to medieval Christianity. In the medieval vision of the church, the Body of Christ, is charged with the care of spiritual things, which are eternal, whereas the political community is concerned with the things which will pass away with time. [T]he politic al community is inferior to the church, & must recognize the church‘s right to pursue its higher ends‖; Gerhart Niemeyer, ―Two Socialisms,‖ Modern Age: The First Twenty-Five Years (Indianapolis, IN: Liberty Fund, 1988), 594-595.

―If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary.‖ —JAMES MADISON


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were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary.‖20 Madison confronted two sides of the same coin: mankind was sinful that this reality rendered necessary restraints on political power in order to preserve ordered liberty, and mankind is so flawed, that no one can be entrusted with absolute power. Since no angels were available to govern, government of men by men demanded restraints on power and added safeguards.21 Jefferson posited, ―Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.‖22 Madison concurred, ―In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.‖23 History teaches the necessity of securing the government against its own destruction. This entails safeguards against centrifugal forces of uninhibited democracy24 and the centripetal forces tending toward consolidation that threatens an implosion of the federal polity from within.25 Bryce described the durability of the federal system with an astronomy metaphor. It ―keep[s] the centrifugal and centripetal forces in equilibrium, so that neither the planet states shall fly off into space, nor the sun of the central government draw them into its consuming fires.‖26 The contests provoked by resistance to absolutism dispel its supposed value for adding energy and stability to the body politic. As political science has advanced, the consensus favors a diffusion of authority and power to sustain free government.

While arguably misguided in his administration, President Woodrow Wilson judiciously proclaimed: ―The history of liberty is a history of limitations of governmental power, not the increase of it. When we resist, therefore the concentration of power, we are resisting the powers of death because of concentration of power is what always precedes the destruction of human liberties.‖27 Mindful of this timeless truth, the Founders concerned themselves with questions of how to design and fortify a system of limited government. In laying the groundwork of a free constitution, ―The framers [of the Constitution] sought to establish sufficient power to deal with tasks of national scope, but to hedge that power around with every possible safeguard,‖ observed M. Stanton Evans. Such safeguards include ―the convention method of conferring and defining power, the written Constitution, the trisection of federal authority, the state-federal balance, the doctrine of ‗enumerated powers,‘ the reserved authority of the states, a Bill of Rights.‖28

THE AMERICAN FEDERAL TRADITION

The United States is understood to be a federal polity. Federalism is a characteristic American gift to political science, which makes ordered liberty tenable.29 The term ‗federalism‘ itself is derived from the Latin root foedus—a ―formal agreement or covenant,‖ and its cognate fides (faith.)30 S. Rufus Davis has suggested that ―synonymous ideas of promise, commitment, undertaking, or obligating, vowing and

20 Madison, ―Federalist #51,‖ The Federalist Papers, Wright, ed., 356; McClellan, Liberty, Order, and Justice, 327. 21 Ibid. 22 Thomas Jefferson, The Quotable Jefferson, John Kaminski, ed. (Princeton, NJ: Princeton Univ. Press, 2006), 141-142. 23 Madison, ―Federalist #51,‖ The Federalist Papers, Wright, ed., 356. 24 Alexander Hamilton, ―Federalist #15,‖ The Federalist Papers, Wright, ed., 157. Hamilton feared the centrifugal forces yielding to anarchy: ―…in the

nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre.‖

25 Jefferson, The Quotable Jefferson, Kaminski, ed., 144. Jefferson most feared the centripetal forces tending toward consolidation: ―When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.‖

26 McClellan, Liberty, Order, and Justice, 332. 27 The Rebirth of America, (Arthur S. Demoss Foundation, 1986), 131. 28 Evans, The Theme is Freedom, 150. 29 Morley, Freedom and Federalism, xxiv. 30 Wes A. Riddle, The American Political Tradition (Irvington-on-Hudson, NY: Foundation for Economic Education, 1996), 16.


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plighting one‘s word,‖ were entwined with ―the idea of cooperation, reciprocity, [and] mutuality…‖31 Scholars trace a primordial federalism back to the Old Testament of the Bible, as it is noticeable within the confederation of tribes and governing covenants of the ancient Israelite commonwealth.32 It is evident that communities create covenantal relationships with God and with each other. This precludes an all but limited role for civil authorities. Men may collaborate and ordain covenantal or federal relationships in the body politic of a republic. Political associations may establish such covenantal relationships with one another and unite for some common purposes in federation.33 Steven Samson exclaimed, ―The American constitutional tradition of liberty and self-government is rooted in the biblical concept of the covenant. Sixteenth century Reformers used biblical and historical models to carefully develop the idea of covenanted self-government into a pillar of the ecclesiastical and political order, thus giving rise to covenant (or federal) theology and the idea of political federalism.‖34

Federalism was bequeathed to America via the federal theology of the Puritans.35 Early Americans made covenants or compacts to found their new civil societies. Behold the Mayflower Compact (1620):

In the name of God, Amen. We whose names are under written…, Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of Our King and Country, a Voyage to plant the first colony in the northern Parts of Virginia; Do these Presents, solemnly and mutually in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid…36

Upon the founding of covenant-based polities, individual actions were subject not only to positive law but also to transcendent principles that undergirded their covenants.37 ―True law necessarily is rooted in ethical assumptions or norms,‖ noted Russell Kirk, ―and those ethical principles are derived, in the beginning at least, from religious convictions.‖38

THE PUBLIC VIRTUE AND FEDERALISM

The Founders esteemed non-tangible, non-quantifiable considerations such as virtue for establishing and sustaining good government.39 ―A vitiated state of morals, a corrupted public conscience, is incompatible with freedom,‖ intoned Patrick Henry. ―No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by a frequent recurrence to

31 David C. Hendrickson, Peace Pact: The Lost World of the American Founding (Lawrence, KS: Univ. Press of Kansas, 2003), 23. 32 William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York, NY: Palgrave MacMillan,

2004), 162. 33 Riddle, The American Political Tradition, 16. 34 Steven A. Samson, ―The Covenant Origins Of The American Polity,‖ Contra Mundum, No. 10 (Winter 1994); Donald S. Lutz, ―From Covenant to

Constitution,‖ Origins of American Constitutionalism (Baton Rouge, LA: Louisiana State Univ., 1988), 23-34. 35 Daniel J. Elazar, ―Our Thoroughly Federal Constitution,‖ How Federal is the Constitution?, Robert A. Goldwin and William A. Schambra, eds.

(Washington, DC: American Enterprise Institute, 1987), 42, 44-45. 36 Ibid., 60-61. 37 Barbara Allen, ―Alexis de Tocqueville on the Covenantal Tradition of American Federal Democracy,‖ Publius: Journalism of Federalism, Vol. 28 No. 2

(Spring 1998). 38 Russell Kirk, Rights and Duties: Reflections on our Conservative Constitution (Washington, DC: Regnery Pub., 1994), 139. 39 Forrest McDonald, Novus Ordo Seclorum (Lawrence, KN: Univ. of Kansas Press, 1985), 70-72, 74-75, 87-89, 90, 93-94, 98, 100, 108-109, 125-126, 134,

144, 165, 173, 178-179, 189-191, 200, 202, 239, 285; Ellis Sandoz, ed., Political Sermons of the American Founding Era: 1730-1805, 2nd ed. 2 Vols. (Indianapolis: Liberty Fund, 1998). This anthology edited by Ellis Sandoz offers insight into the Christian conceptions of virtue deemed requisite by the founding generation for sustaining ordered liberty.


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fundamental principles.‖40 A lack of virtue in the body of the people was seen as a culprit for corrupt public officials. In turn these corrupt agents may impute their moral deformity to the entire social fabric.41 ―Americans came to perceive a dynamic relationship between the two great guarantors of liberty—the good character of the people and the proper structure of the government,‖ noted historian Robert Shallope. ―Each remained susceptible to corruption and once contaminated could easily infect the other. Both must be carefully tended.‖42 The compact has a moral as well as legal dimension. For as the American federal structure was held together by the consent and good faith of its members, it stood as a voluntary association grounded within a transcendent moral order.

In covenantal theory, a higher moral force, namely God, stood as the witness and guarantor of that compact. By the good faith of elected officials and appointed officers, the prudence and virtue of the people, a republic may procure the blessings of providence upon the body politic and its people.43 Regarding the correlation between virtue and good government, Madison wrote, ―Republican government presupposes the existence of these qualities in a higher degree than any other form.‖44 ―Public virtue entailed firmness, courage, endurance, industry, frugal living, strength, and above all, unremitting devotion to the weal of the public‘s corporate self, the community of virtuous men,‖ opined Forrest McDonald. ―It was at once individualistic and communal: individualistic in that no member of the public could be dependent upon any other and still be reckoned a member of the public; communal in that every man gave himself totally to the good of the public as a whole. If public virtue declined, the republic declined, and if declined too far, the republic died.‖45 Prudence, adherence to moral law, and virtue produces good government, and thus strengthens the affections for the fraternal bonds of Union, as well as its security, prosperity and vitality. In contrast, history reveals that sustained immorality among a people leads to bad government, and all its bitter fruits—corruption, demagoguery, economic turmoil and social upheavals—and such a beleaguered body politic in time collapses into the twin perils of either anarchy or despotism.

Speaking of the threat posed by concentrated power, America‘s patriarch George Washington described the need for effectual checks and limits: ―A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been

40 Patrick Henry quoted in Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary

Era (Chapel Hill, NC: Univ. of North Carolina Press, 1980; repr. Lanham, MD: Rowman & Littlefield, 2001). 41 Wilhelm Roepke, The Moral Foundations of Civil Society, 2nd ed. (1st ed., 1948; repr. New Brunswick, NJ: Transaction, 1996), 95. ―When we consider

these several dangers and symptoms of decay we get the impression that these all spring a common root, the vanishing sense of responsibility, or perhaps the growing influence of those who are lacking this feeling… [W]e are faced with the tragic admission of a contemporary English observer, Michael Roberts, that fear of responsibility has become the specific curse of democratic life. It is unanimously agreed that there is everywhere a lack of a spirit of seriousness on the part of individuals in their duties towards all bodies—ranging from the family to the government—and in the manner in which they demand their all the more loudly acclaimed rights, and in the notoriously small number of people who take the trouble to and vote in many democratic countries, which is no less of an evil than the regrettable diminution of interest in all the deeper questions of public life exhibited by these people. The state of affairs gives all the freer play to the demagogues, whose irresponsible business it is to appeal to irresponsibility.‖

42 Robert E. Shalhope, John Taylor of Caroline: Pastoral Republican (Columbia, SC: Univ. of South Carolina Press, 1980), 67; Robert E. Shalhope, ―Thomas Jefferson's Republicanism and Antebellum Southern Thought,‖ The Journal of Southern History, Vol. 42, No. 4 (Nov., 1976), 529-556, viz. 533.

43 Daniel J. Ford, In the Name of God, Amen: Rediscovering Biblical and Historical Covenants (St. Louis, MO: Lex Rex Pub., 2002); Russell Kirk, The American Cause (Wilmington, DE: ISI, 2002), 35-38; and Rights and Duties: Reflections on our Conservative Constitution (Washington, DC: Regnery Pub., 1994), 143. It should be noted that Christianity was a foundational source of the law, a matter affirmed by jurists of the formative era in American jurisprudence. To that generation, it was inconceivable to divorce the law from moral precepts rooted in revealed religious truth, though the church may be separated from the political apparatus.

44 Madison, ―Federalist #55,‖ The Federalist Papers, Wright, ed., 379. 45 McDonald, Novus Ordo Seclorum, 74-75.

―No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by a frequent recurrence to fundamental principles.‖ —PATRICK HENRY


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evinced by experiments ancient and modern; some of them in our country and under our own eyes.‖46 The framers sought to reconcile the demands for order with the goal of preserving liberty. The Constitution was framed so as to serve as a restraint upon the authority and powers of both the federal and state governments. Its framers believed that limiting government to be a necessity given human nature. In the early American republic, northerners tend to emphasize the need of supporting private virtue to facilitate and sustain republicanism.47 Southerners digressed somewhat, and stressed the proper structuring of the polity rather than a focus on cultivating individual virtue through public institutions.48

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It serves to examine the characteristics of the American constitutional order as originally framed and established. The republican framework prescribed in the Constitution was built on these elemental pillars: (1) the rule of law; (2) separation of powers amongst the legislative, executive, and judicial branches of government; (3) a system of checks and balance among these respective branches; (4) a system of federalism or division of powers between the various state authorities and the singular federal authority; (5) recognition of individual rights that antedate government; (6) and the principle of representative republicanism whereby the people consent to a prescribed mode for popular rule in the administration of government.49

THE RULE OF LAW

FOR ALL THE CONTEMPORARY EXTOL OF THE VIRTUES OF

democracy, it is adherence to the rule of law that is most integral to the preservation our liberties. The wisdom of the ancients was instructive for the Founders. ―For law,‖ Cicero said, ―is the highest reason implanted in nature, which prescribes those things which ought to be done, and forbids the contrary.‖50 In his classic treatise Politics, Aristotle presaged the dangers that arise when a government of men supplants reason and law with the caprice of the powerful. ―[H]e who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.‖51 Benjamin Rush avowed, ―Where there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community.‖52 Not only are citizens bound by the law, but the Founders‘ ideal is that the institutions of free government were to remain within the prescriptive constraints of the rule of law. ‗A government not of men, but of laws‘ was and still remains the ideal.53

The Founders were not content with mere pieties about the law; they wanted the law fixed and certain. To the extent the rule of law is eclipsed by the rule of man, we find that tyranny and arbitrary whim

46 George Washington, ―Farewell Address,‖ 19 Sept. 1796, George Washington: A Collection (Indianapolis, IN: Liberty Fund, 1988), 521. 47 D. Grier Stephenson, Campaigns and the Court: The U.S. Supreme Court in Presidential Elections (New York, NY: Columbia Univ. Press, 1999), 35. Justice

William Paterson stated, ―Religion and morality were pleasingly inculcated and enforced, as being necessary to good government, good order, and good laws; for ‗when the righteous are in authority, the people rejoice.‘

48 McDonald, Novus Ordo Seclorum, 75. ―The more a nation depends for liberty on the qualities of individuals,‖ conjectured John Taylor, ―the less likely it is to retain it. By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.‖

49 Bruce Frohnen, ―Carey on Constitutions, Constitutionalism, and the Tradition,‖ Defending the Republic: Constitutional Morality in a Time of Crisis, Essays in Honor of George W. Carey (Wilmington, DE: ISI Books, 2008), 22; Riddle, The American Political Tradition.

50 Clarence Carson, The Colonial Experience, 1607-1714 (Wadley, AL: American Textbook Committee, 1983), 16. 51 James J. Kilpatrick and David Mays, et al., eds., We the States: An Anthology of Historic Documents and Commentaries thereon, Expounding the State and Federal

Relationship (Richmond, VA: Virginia Commission on Constitutional Government), xiii 52 Benjamin Rush, ―Letter to David Ramsay,‖ March or April 1788, Letters of Benjamin Rush (Princeton, NJ: Princeton University Press, 1951), 1:454. 53 Ronald M. Peters, The Massachusetts Constitution of 1780: A Social Compact (Amherst, MA: Univ of Massachusetts Press, 1978), 163.

―Where there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community.‖ —BENJAMIN RUSH


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supersedes ordered liberty. ―Under a rule of law,‖ M. Stanton Evans remarked, ―not only are there exterior limits on the power of the state, but citizens have some definite idea about what the political authorities may or may not do, and benchmarks by which to measure official conduct; equally important, the citizens have a definite idea of what they may do, and can plan their lives accordingly.‖54 Samuel Adams‘ legal maxim rings true: ―In all free states, the constitution is fixed.‖55 A free constitution under law signified a system of fundamental principles, fixed institutions, a body of basic laws, for the governing of a republic.56 Owing to ‗federalism,‘ the American republic is not a unified rule of law, but rather polyarchal systems of law.57

In principle, ―No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.‖58 The Constitution was the embodiment of the founding generation‘s belief in the rule of law. Eighteenth-century classical liberalism looked upon the freedom of the individual as the chief political object. Never intended to govern the people per se, its purpose is to serve as a standard bearer to govern the governors. The subordination of the interlocking federal government structure to the rule of law was deemed vital. Institutions of government were not to be subject to the arbitrary dictates of men, but to the law, providing for the equitable administration of justice and the affairs of state. The instrumentality of the Constitution delineated the scope of authority and power possessed by the federal power vis-à-vis the States.59 Its written form is intended to place clear strictures on the limits of power.60

SEPARATION OF POWERS

THE CONSTITUTION ORDAINED THREE DISTINCT BRANCHES of the general government of the United States, the legislative, executive, and the judicial branches. It is axiomatic in a free government, that the three branches, namely legislative, executive, and judiciary, shall be separate of one another.61 As Madison surmised, ―The preservation of liberty requires that the three great departments of power should be separate and distinct.‖62 With this division of powers between the federal branches, and the added security of the division of power between the federal power and the states, ―a double security arises,‖ for the purpose of securing ―the rights of the people.‖63

The doctrine of ‗separation of powers‘ is not peculiar to the American Founders, as it encompassed the accumulated wisdom of Western political thinkers through the ages. For example Charles de Secondat, baron de Montesquieu and his classic The Spirit of the Laws states:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. Again, there is no liberty, if the judiciary be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject

54 Evans, The Theme is Freedom, 81. 55 Ibid., 256, 311; Samuel Adams, The Writings of Samuel Adams, ed. Harry A. Cushing, ed. (New York, NY: G.P. Putnam‘s Sons, 1904), 1:170. 56 Russell Kirk, Rights and Duties: Reflections on our Conservative Constitution (Dallas, TX: Spence Pub., 1997), 3. 57 Marshall DeRosa, Redeeming American Democracy: Lessons from the Confederate Constitution (Gretna, LA: Pelican Pub., 2007), 52. 58 United States v. Lee, 106 U.S. 196, 220 (1882). 59 Ibid; Richard Weaver, ―The South and the American Union,‖ The Southern Essays of Richard Weaver (Indianapolis, IN: Liberty Press, 1987), 233. 60 McClellan, Liberty, Order, and Justice, 347-348; Riddle, The American Political Tradition, 30. 61 Gottfried Dietze, The Federalist: A Classic on Federalism and Free Government (Baltimore, MD: John Hopkins Univ. Press, 1999), 157; M.J.C. Vile

Constitutionalism and the Separation of Powers, 2nd Ed. (Indianapolis: IN: Liberty Fund, 1998), 405. ―It is a fundamental maxim of free government, that the three great departments of power, legislative, executive, and judiciary, shall be essentially distinct and independent, the one of the other. The traditional theory of the separation of powers sought to divide the functions of government between the three branches of government and to keep the personnel of the three branches separate.‖

62 Madison, ―Federalist #47,‖ The Federalist Papers, Wright, ed., 337. 63 Ibid., 357.

―The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government…‖ —PATRICK HENRY


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would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people to exercise those three powers, that of enacting laws, that of executing public resolutions, and of trying the causes of individuals.64

The Founders built on the wisdom of Montesquieu. But they had no intention of erecting a Parliamentary system based wholly on the English model.65 The safeguards in the English constitution, arbitrary executive rule, majoritarian tyranny and manipulation by special interests were found to be lacking. Prior to the American experiment, few systems in practice had ever sustained a meaningful separation of powers. Historical lessons from this failure were abundant.

In 1784, Jefferson opined, ―An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among several bodies of magistracy so that no one could transcend their legal limits without being effectively checked and restrained by the others.‖66 Madison declared, ―the accumulation of all powers—legislative, executive, and judiciary—in the same hands… may be justly pronounced the very definition of tyranny.‖67 Thus the Constitution prescribed the horizontal separation of powers across three independent branches. The first three distributive articles delineated the sphere of each respective branch of the federal government, and the scope of authority and powers vested in the Congress (Article I), the executive (Article II), and the judiciary (Article III). The ―horizontal balance‖ among the separate branches was predicated upon the ideal that each respective branch would be staffed by self-interested individuals who would jealously guard their own institutional interests against those of the other branches. The institutional equilibrium sustained by mutual jealousy gave rise to conditions that in theory thwarted the concentration of power in any one branch of government.68 The absorption of power in an absolute sovereign was to be supplanted by a desire for a workable government, typified by a dispersal of power, and sustained by a spirit of compromise, cooperation and a desire for consensus.69

Madison lauded the necessity of a ‗separation of powers‘ as he proposed that government must be checked internally. It did so by sustaining autonomous centers of power that maintained an institutional interest. This premise emanated from a realistic assessment of human nature. It was mutual jealousy of institutional prerogatives that thwarted the concentration of power by setting up counter-poises within the government itself.70 ―[A] mere demarcation on parchment of the constitutional limits of the federal department is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all powers of government in the same hands.‖71 Madison remarked in

64 Montesquieu quoted in M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd Ed. (Indianapolis: IN: Liberty Fund, 1998), 99. 65 Ibid., 194, 405. Vile observed, ―The separation of powers, however, upon which Montesquieu had placed so much stress, became an essential article

of faith of the men of 1789.‖ He noted, ―many commentators have rejected the idea that the British government embodies a separation of powers…‖ evident in its executive‘s efforts to stir the legislature by patronage.

66 Thomas Jefferson quoted in David N. Mayer, The Constitutional Thought of Thomas Jefferson, (Charlottesville, VA: Univ. of Virginia Press, 1994), 62; Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:163

67 Hamilton, ―Federalist #47,‖ The Federalist Papers, Wright, ed., 336; Watkins, Reclaiming the American Revolution, 141. 68 Madison, ―Federalist #51,‖ The Federalist Papers, Wright, ed., 356-358. 69 Keith Whittington, ―Constitutionalism,‖ American Conservatism: An Encyclopedia. Bruce Frohnen, Jeremy Beer, and Jeffrey O. Nelson, eds.

(Wilmington, DE: ISI Books, 2006), 192-193. 70 Madison, ―Federalist #51,‖ The Federalist Papers, Wright, ed., 356-358. 71 Ibid., Madison, ―Federalist #48,‖ 347; Dietze, The Federalist, A Classic on Federalism and Free Government, 127;

―To preserve the republican form and principles of our Constitution and cleave to the salutary distribution of powers which that has established. These are the two sheet anchors of our Union. If driven from either, we shall be in danger of foundering.‖ —THOMAS

JEFFERSON, JUNE

12, 1823


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Federalist #51:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government… In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.72

The security of the people rested on the preservation of the separation of powers. ―[T]o preserve the republican form and principles of our Constitution and [to] cleave to the salutary distribution of powers which that [the Constitution] has established… are the two sheet anchors of our Union. If driven from either, we shall be in danger of foundering.‖73 Thomas Jefferson sought to bring the separation of powers to fruition, emphasizing a coordinate view of the distinct branches of the federal government. ―My construction of the Constitution is... that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal.‖74

A SYSTEM OF CHECKS AND BALANCES

THE SEPARATION OF POWERS WAS NEVER INTENDED TO BE AN ABSOLUTE. As Madison echoed Montesquieu, he posited no ‗pure separation of powers‘ was contended for by the framers. Rather a ―degree of separation‖ was deemed ―essential to a free government, can never in practice, be duly maintained.‖ The Founders sought to reconcile a ‗separation of powers‘ with an overlapping series of ‗checks and balances‘ in sort of a hybrid system that became a pillar of American constitutionalism.75 The free constitutional order avoids tyranny of any one branch over the other by an arrangement of checks and balances, serving as a constitutional mechanism for the promotion of individual liberty.

The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.76

To thwart the concentration of power in an institutional symmetry effectuated by law, ‗ambition

72 Ibid., Madison, ―Federalist #51,‖ 356. 73 Thomas Jefferson to William Johnson, June 12, 1823, The Writings of Thomas Jefferson, Richard Holland Johnston, ed. (Washington, DC: Thomas

Jefferson Memorial Association of the United States, 1907), 15:452. 74 Ibid., Thomas Jefferson to Spencer Roane, 1819. 15:214; H.L. Cheek, Jr., Calhoun and Popular Rule: The Political Theory of Disquisition and Discourse

(Columbia, MO: Univ. Press of Missouri, 2001), 150. ―The general government stood in relation to the state governments as ‗co-ordinate governments‘ that provided a ‗partition‘ of authority: ‗The government of the United States is, in each State, the co-ordinate of its separate government; and taken together, the two make the entire government of each, and of all the States. On the preservation of this peculiar and important division of power, depend the preservation of all the others, and the equilibrium of the entire system.‘‖

75 Dietze, The Federalist, A Classic on Federalism and Free Government, 127. 76 Madison, ―Federalist #51,‖ BBB.


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must be made to counter ambition.‘77 Jurist James McClellan opined, ―The check and balance system is probably the most ingenious and carefully crafted feature of the American Constitution. Like the principle of federalism, it permeates the document.‖78 Through the edifice of the Constitution, an elaborate system of checks and balances is prescribed to distribute and check the concentration of power. The legislative, executive, and judicial branches each exercise a constitutional check against the other branches. With their skepticism of consolidated power, the Founders wisely provided auxiliary precautions.79 As Federalist #73 noted, each branch is furnished ―with constitutional arms‖ for its own ―effectual powers of self-defense.‖ These checks act to counter the ascendancy of any one branch over the other in practice.80

Americans, even post-1783, looked with affinity upon the English constitution filtered through the settlement of 1688-89.81 It was a mixed constitution that vested sovereignty in Parliament. It was possessed of a series of checks and balances so that ―all the parts of it form a mutual check upon each other.‖82 King and kingdom, lord and commons, and indeed all constituencies of government were represented by Parliament. Circa 1766, Blackstone boasted that ―all parts‖ of the English constitution‖:

Form a mutual check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people; … while the king is a check upon both, which preserves the executive power from encroachments. And this very executive power is again checked, and kept within due bounds by two houses… Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, enacting by themselves, would have done; but at the same time in a direction partaking, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community.83

John Adams spoke with approbation of the English model:

The checks and balances of republican governments have been in some degree adopted at the courts of princes. By the erection of various tribunals, to register the laws, and exercise the judicial power—by indulging the petitions and remonstrances of subjects, until by habit they are regarded as rights—a control has been established over ministers of state, and the royal councils, which, in some degree, approaches the spirit of republics.84

The internal checks of the English constitution did not check the whole since Parliament in theory embodied the whole.85 In contrast to the English model, the framers wanted to put the ramparts around liberty and provide for an effectual separation of powers. They prescribed the limits of power by a written constitution, through a harmonious co-ordinate federal system that diffused both authority and power.86 They thought the English model to be deficient as it embodied an unhealthy ―fusion‖ of the legislative and

77 Roger Pilon, ―Madison‘s Constitutional Vision: The Legacy of Enumerated Powers,‖ James Madison and the Future of Limited Government (Washington,

DC: Cato Institute, 2002), 29; M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd Ed. (Indianapolis: IN: Liberty Fund, 1998), 17. 78 McClellan, Liberty, Order, and Justice, 331. 79 Andrew Napolitano, The Constitution in Exile: How the Federal Government Has Seized Power By Rewriting the Supreme Law of the Land (Nashville, TN:

Nelson Current, 2006), 8, 37; Riddle, The American Political Tradition, 13. 80 Hamilton, ―Federalist #73,‖ The Federalist Papers, Wright, ed., 468-469. 81 McClellan, Liberty, Order, and Justice, 22. ―The American Constitution is distinctively English,‖ posited Sir Henry Maine in his book Popular Government

(1885). 82 Daniel J. Boorstin, The Mysterious Science of the Law: An Essay on Blackstone‘s Commentaries (Chicago, IL: Univ. of Chicago Press, 1996), 159. 83 William Blackstone, Commentaries on the Laws of England, 4 vols. (1st ed. 1765-1769; repr. Chicago: Univ. of Chicago Press, 1979), 1:150-51. 84 John Adams, ―A Defense of the Constitutions of the United States of America, Against the Attack of M. Turgot, in his letter to Dr. Price,‖ 22

March, 1778, The Political Writings of John Adams, George W. Carey, ed. (Washington, DC: Regnery, 2000), 108. 85 McDonald, Novus Ordo Seclorum, 81. 86 Riddle, The American Political Tradition, 9, 18; Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition (New York, NY:

Cambridge Univ. Press, 2007). ―The textual basis – the necessarily written nature – of American constitutionalism was a crucial characteristic of the process of establishing governments. This written feature remained a hallmark of American constitutions.‖; St. George Tucker, View of the Constitution of the United States, Clyde Wilson, ed. (Indianapolis, IN: Liberty Fund, 1999), 33. ―It is the proper object of a written constitution not only to restrain the several branches of the government, viz. the legislature, executive, and judiciary departments, within their proper limits, respectively, but to prohibit the branches, united, from any attempt to invade that portion of the sovereign power which the people have not delegated to their public functionaries and agents, but have reserved, unalienably to themselves. A written constitution has moreover the peculiar advantage of serving as a beacon to apprise the people when their rights and liberties are invaded, or in danger.‖; Gordon S. Wood, The Creation of the American Republic 1776-1787 (Chapel Hill, NC: Univ. of North Carolina Press, 1969), 152, 292-293, 449, 451-453, 550.


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executive power. Walter Bagehot described the nineteenth century English constitution:

This fusion of the legislative and executive functions may, to those who have not much considered it seem but a dry and small matter, to be the latent essence and effectual secret of the English constitution; but we can only judge of its real importance by looking at a few of its principal effects, and contrasting it very shortly with its great competitor, which seems likely, unless care be taken, to outstrip it in the progress of the world. The competitor is the Presidential system. The characteristic of it is that the President is elected from the people by one process, and the House of Representatives by another. The independence of the legislative and executive powers is the specific quality of Presidential Government, just as their fusion and combination is the precise principle of Cabinet Government.87

The American model entailed a number of ―auxiliary precautions.‖88 Each of the three branches is nominally independent of one another, and each branch possessed a series of constitutional safeguards (i.e., checks and balances) to counter the ambition of the other branches. Congress is divided between a House, in which representation is based on population, and the Senate, in which representation in each state is equally represented.89 The President is authorized to veto bills passed by the Congress,90 and the Congress, in turn, can override the presidential veto with a concurrence of a two-thirds majority in both houses.91 The President is vested with the authority to appoint judges, ambassadors, and other public officers,92 but the Senate must lend its assent and confirm those appointments.93 The President has the authority to negotiate Treaties,94 but with the ―advice and consent‖ of the U.S Senate and their concurrence for approval of any Treaties.95 The President is commander-in-chief of the armed services in time of war,96 but Congress is vested with the exclusive authority to constitutionally declare war and inaugurate war.97 The staggered terms of the President, Senators, and Representatives serve as a check against the concentration of power and majoritarian tyranny.98 The President cannot influence the Congress in the manner of the British ministerial system through patronage.99 Taken together, these provisions created a sense of competition and mutuality between the Congress and the Presidency by thwarting the concentration of power, allowing for mutual restraints of one branch upon the other.

THE DIVISION OF FEDERAL AND STATE AUTHORITY

ATTENDANT TO THE SYSTEM OF CHECKS AND BALANCES, the Founders held that the maintenance of the sovereign states to be requisite to sustaining ordered liberty. They envisioned a division of authority and power as the means of establishing and sustaining ordered liberty.100 ―In the compound republic of America,‖ observed Madison, delegated power ―is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises for the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.‖101 The Founders sought to fortify a vertical axis of balance between the

87 Walter Bagehot, The English Constitution and Other Political Essays (New York, NY: D. Appleton & Co., 1877), 47. 88 James Madison, ―Federalist #51,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 355-359. 89 U.S. Const., Art. I, § 2 and § 3. 90 U.S. Const., Art. I, § 7. Cl. 3. 91 U.S. Const. Art. I. § 2. Cl. 2. 92 U.S. Const., Art. II. § 2. Cl. 1. 93 U.S. Const., Art. II. § 2. Cl. 1. 94 U.S. Const., Art. II, § 2. Cl. 2 95 Ibid. 96 U.S. Const., Art. II. § 2. Cl. 1. 97 U.S. Const., Art. I. § 8, Cl. 11. 98 Edwin Meese, III, David F. Forte, Matthew Spalding, eds., The Heritage Guide to the Constitution (Washington, DC: Heritage Foundation, 2005), 62-64. 99 Thomas Prentice Kettell, ed., The United States Magazine and Democratic Review (New York, NY: Langtree and O'Sullivan, 1848), 22:206. 100 McClellan, Liberty, Order, and Justice, 302-305, 327-341. 101 James Madison, ―Federalist #51,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 357


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singular federal authority and the authorities of the several states.102 ―This balance between the national and State governments… is of the utmost importance,‖ observed Madison. ―It forms a double security for the people.‖103 The counter-intuitive genius in the Founders‘ design of multiple governments is the dispersal and diffusion of both authority and power. This served to enhance individual liberty rather than impede it.

Scholars refer to the original constitutional framework as a system of ‗dual federalism,‘ alluding to the twofold sovereign character of the federal government in its respective sphere, and that of the several states each in their sovereign capacity. This system of dual sovereignties, each with its own particular field of action, sanctioned the federal government with tasks that were national in scope: defense, diplomacy, foreign and interstate commerce. Concurrently the states held to the broad regulation of domestic affairs.104

Jefferson‘s Inaugural stated republican principles, as ―the support of the state governments in all their rights, as the most competent administrations for our domestic concerns, & the surest bulwarks against anti-republican tendencies,‖ on the one hand, and ―the preservation of the General government, in its whole constitutional vigour, as the sheet anchor of our peace at home, & safety abroad.‖ This was the ―true theory‖ of the Constitution, and values antithetical to these must be reversed and opposed.105 Considered jointly, these precepts reveal the groundwork of the constitutional system: the simultaneous attempt to balance the centrifugal and centripetal forces innate within the American federal polity.106

The character of the Union was revealed in the limited delegation of powers to the general government of the United States, specifically the powers delegated to Congress under Article 1, Section 8 of the U.S. Constitution.107 Charles Pinckney extolled this unique balance of national and state power during the South Carolina ratification debates:

It had been an opinion long established, that a republican form of government suited only the affairs of a small state; which opinion is founded in the consideration, that unless the people in every district of the empire be admitted to a share in the national representation, the government is not to them as a republic… [Much of the objection] would be done away by the continuance of a federal republic, which, distributing the country into districts, or states, of a commodious extent, and leaving to each state its internal legislation, reserves unto a superintending government the adjustment of their general claims, the complete direction of the common force and treasure of the empire.108

This federal-state balance is reflected in the Tenth Amendment. These tenets surmise ‗dual federalism‘:

a) The federal government possesses a delegation of enumerated powers b) The federal government is obligated to a limited set of constitutional purposes c) The federal government and each State are sovereign within their respective sphere of

operations d) The relationship between federal government and the states is best summed up as an

102 Riddle, The American Political Tradition, 14-20. 103 Raoul Berger, Federalism: The Founders‘ Design (Norman, OK: Univ. Oklahoma Press, 1987), 46; James Madison, ―Federalist #51,‖ The Federalist

Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 357. 104 Evans, The Theme is Freedom, 204; Frederick D. Drake and Lynn R. Nelson, eds., States‘ Rights and American Federalism: A Documentary History

(Westport, CT: Greenwood Press, 1999), xx. ―Proponents of states‘ rights hold that the Constitution is a compact, or an agreement, between the states and the federal government. Both states and the national government are supreme within their own sphere. By no means are state governments subordinate to the national government. Advocates of dual federalism draw on the Tenth Amendment to the Constitution. They argue that the national government cannot ‗invade‘ the power that is reserved to the states.‖; Harry N. Scheiber, ―Dual Federalism,‖ Oxford Companion to the Supreme Court, Kermit L. Hall, ed. (New York, NY: Oxford Univ. Press, 1992), 236; James Q. Wilson, American Government, 9th Ed. Abridged. (Boston, MA: Wadsworth, 2009), 77-78.

105 Mayer, The Constitutional Thought of Thomas Jefferson, 208. 106 Ibid., 185. 107 Ibid., 71; U.S. Const., Art. I, § 8, Amd. X.; Evans, The Theme is Freedom, 265; McClellan, Liberty, Order, and Justice, 425. 108 Jonathan Eliot, ed., The Debates of the Several State Conventions, 2nd. Ed. (1880, reprint ed., Salem, NH: 1987), 4:262; Tara Ross, Enlightened Democracy:

The Case for the Electoral College (Los Angeles, CA: World Ahead Pub., 2005), 54.


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ingrained tension rather than harmonious cooperation109

The independence afforded to the States under the Constitution was not absolute, as that instrument ordained several express limitations upon state power. The constraints placed upon state power were intended in part to uphold economic liberty.110 Article IV established that the ―Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.‖ Article I, Section 10, set forth added constraints that Madison described: ―Bills of attainder, ex-post-facto laws, and laws impairing the obligations of contracts are contrary to the first principles of the social compact.‖ Their express provision in the Constitution provides ―a constitutional bulwark of personal security and private rights.‖111

INDIVIDUAL RIGHTS

THE FOUNDERS ESTEEMED INDIVIDUAL LIBERTY and the Rights of the Englishmen. Jefferson wrote in the Declaration of Independence, that ―men are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.‖112 George Mason, in the Virginia Declaration of Rights, wrote, ―That all men are born equally free and independent, and have certain inherent natural Rights… among which are the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety.‖113 Hamilton declared, ―The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased.‖114 The basis for republicanism is individual liberty. As Jefferson noted, ―It is to secure our rights that we resort to government at all.‖115

Americans naturally looked first to their states and communities as the guardian protectors of these sacred rights.116 The modern fixation with nationally guaranteed individual rights obscures the Founders‘ concern with the rights of the community. In the view of the Founders, liberty was best preserved by negative limitations upon the exercise of power rather than a positive grant of rights.117 The Ninth Amendment provides that ―the enumeration in the Constitution, of certain rights, shall not be construed

109 Frederick D. Drake and Lynn R. Nelson, eds., States‘ Rights and American Federalism: A Documentary History (Westport, CT: Greenwood Press, 1999),

xx. 110 Thomas Dilorenzo, How Capitalism Saved America: The Untold Story of Our Country From the Pilgrims to the Present (New York, NY: Crown Forum, 2004),

81; Robert H. Bork, Federalism and Federal Regulation: The Case of Product Labeling (Washington, DC: Washington Legal Foundation, 1991), 4. As Robert Bork observed, ―one of the major reasons for holding the Philadelphia Convention was the states' interference with national trade.‖

111 James Madison, ―Federalist #44,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 319 112 Thomas Jefferson, et al., ―The Declaration of Independence,‖ The Constitution of the United States and the Declaration of Independence, Roger Pilon, ed.

(Washington, DC: Cato Institute). 113 George Mason, ―Virginia Declaration of Rights,‖ June 12, 1776, The Founders‘ Constitution, Philip B. Kurland and Ralph Lerner, eds. (Chicago, IL:

Univ. of Chicago Press, 1987, reprint Indianapolis, IN: Liberty Fund), 2:446-447. 114 Ron Chernow, Alexander Hamilton (New York, NY: Penguin Press, 2004), 60. 115 Thomas Jefferson to Francois D'Ivernois, 1795. FE 7:4 116 Glen Gorton, What Would They Say? The Founding Fathers on Current Issues (Lafeyette, LA: Huntington House Publishers, 1998), 69; Melancton

Smith,1788, The Debates and Proceedings of the Constitutional Convention of the State of New York (New York, NY: Vassar Bros. Inst., 1905), 95. Melancton Smith said, ―We all agree that a general government is necessary: But it ought not to go so far as to destroy the authority of the members… The state constitutions should be the guardians of our domestic rights and interests; and should be both the support and the check of the federal government.‖

117 Barry Alan Shain, ―Liberty and License: The American Founding and the Western Conception of Freedom,‖ Vital Remnants: America‘s Founding and the Western Tradition. Gary L. Gregg II, ed. (Wilmington, DE: ISI Books, 1999), 212. ―Eighteenth-century Americans‘ understanding of liberty did not include autonomous individual freedom; but rather, in all but one of its various forms, it followed the traditional Western understanding of a voluntary submission to a life of righteousness that accorded with universal moral standards and the authoritative interpretative capacity of congregation and community—if you will, an ordered and communal sense of liberty.‖; Clyde Wilson, ―Citizens or Subjects?,‖ From Union to Empire: Essays in the Jeffersonian Tradition (Columbia, SC: Foundation for American Education, 2003), 18-19.

―That all men are born equally free and independent, and have certain inherent natural Rights… among which are the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety.‖ —GEORGE MASON


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to deny or disparage others retained by the people.‖118 By declining to nationalize unenumerated rights, the Founders left the protection of such rights to the people of the several states.119 As Forrest McDonald declared ―the liberty of the individual [was] subsumed in the freedom or independence of his political community.‖120 The states possess their own distinct state constitutions, court systems, and legal tradition rooted in English common law, which antedate the ratification of the Constitution. States were reckoned to govern themselves differently since their people, customs, and circumstances differed. Keeping government close to home is consonant with liberty; and this custom is reinforced by the American colonial-revolutionary experience.121

Commensurate with the Founders‘ vision, the States were the most integral ingredient to the federal polity. Louis Henkin remarked ―the Constitution said remarkably little about rights‖ since the federal government ―was not to be the primary government… governance was left principally to the States.‖122 The original Constitution properly construed, does not affirm any positive grant of rights at all. Its salient point was that it embodies a limitation upon federal power by virtue of a limited delegation of power.123 The people grant power to the institutions of government, entrusting it with only certain powers requisite for its operation.124 The Rights of the Englishman antedate the Constitution; and that instrument is not presumed to grant people their rights. The federal Bill of Rights opens with the phraseology, ―Congress shall make no law…‖—itself a negation on the exercise of power. Hence one of the duties of the federal authority was to refrain from interference with individual rights and leave their preservation to the established communities among the several states.125 Jurist Michael W. McConnell remarked the ―framers of the Constitution and the Bill of Rights believed that state governments were, in some vital respects, safer repositories over

118 U.S. Const. Amd. IX. 119 Marshall DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control (New Brunswick, NY:

Transaction Pub., 1996).; Forrest McDonald, States‘ Rights and the Union: Imperium in Imperio, 1776-1876 (Lawrence, KS: Univ. Press of Kansas, 2000), 24. 120 McDonald, Novus Ordo Seclorum, 71; Donald S. Lutz, Popular Consent and Popular Control (Baton Rouge, LA: Louisiana State Univ. Press, 1979), 224.

―[A]ccording to historian Donald S. Lutz, ‗community interests were considered superior to those of individuals.‘ The ‗good of the community‘ allowed for the abridgement of rights for community purposes.‖

121 Riddle, The American Political Tradition, 19. 122 Louis Henkin, ―Human Dignity and Constitutional Rights,‖ The Constitution of Rights: Human Dignity and American Values, Michael J. Mayer and

William A. Parents eds. (Ithaca, NY: Cornell Univ. Press, 1992), 210, 213-214. ―The framer‘s political theory was immediately concerned with organization, not individuals… with principles of power allocation,‖ remarked Robert Nagel. But modern jurists have a proclivity inverting ―the priorities of the framers‖ and embrace ―an obsessive concern for using the Constitution to protect individual rights.‖; Robert Nagel, ―Federalism as a Fundamental Value: National League of Cities in Perspective,‖ 1981 SuCt. Rev. 81, 82, 88; Charles L. Black, Jr., Structure and Relationship in Constitutional Law (Baton Rouge, LA: Louisiana State Univ. Press, 1969), 42. Federalist #38 stated some critics ―concur[red] in the absolute necessity of a bill of rights, but contend[ed] that it ought to be declaratory, not of personal rights of individuals, but of rights reserved to the States in their political capacities.‖ Hamilton stressed in Federalist #84 that ―one of object of a bill of rights [is] to declare and specify the political privileges of the citizens in the structure and administration of the government.‖

123 U.S. v. Cruikshank, 92 U.S. 542, 551 (1876). ―The government of the United States is one of delegated powers alone. Its authority is defined… by the Constitution.‖

124 Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 136-137 (1866) (opinion of C.J.) ―[N]o department of the government of the United States—neither [the] President, nor the Congress, nor the Courts—possess any power not given by the Constitution.‖

125 Charles W. Baird, ―I have a right!,‖ The Clichés of Politics, Mark Spangler, ed. (Irvington-on-Hudson, NY: Found. for Econ. Educ., 1994), 9-11; Barry Alan Shain, ―Liberty and License: The American Founding and the Western Conception of Freedom,‖ Vital Remnants: America‘s Founding and the Western Tradition. Gary L. Gregg II, ed. (Wilmington, DE: ISI Books, 1999), 212-213; E. Robert Statham, Jr., ―The Crisis of the American Political Tradition,‖ Bruce Frohnen and Kenneth L. Grasso, ed., Defending the Republic: Constitutional Morality in a Time of Crisis (Wilmington, DE: ISI, 2008), 250; ―[T]he Constitution preserves negative liberty (liberty from tyranny and anarchy0 but does not provide a political-philosophical explication of constitutional justice in the positive sense (freedom ―to‖); Clyde Wilson, From Union to Empire: Essays in the Jeffersonian Tradition (Columbia, SC: Found. for Amer. Education, 2003), 111. ―The Constitution, does not give any rights at all. The most essential point of a written constitution is that it is a limitation of government. The people establish institutions and give up to them certain powers, and no more. The people establish institutions and give up to them certain powers, and no more. The government is not presumed to give the people their rights; and indeed the Bill of Rights is cast in a negative form: ‗The Congress shall make no law…‘ That is, our rights are not a grant from the federal government, and the chief duty of the federal government is to refrain from interfering with them and leave to our real communities their day-to-day definition and application.‖

―The state constitutions should be the guardians of our domestic rights and interests; and should be both the support and the check of the federal government.‖ —MELANCTON

SMITH, NEW YORK

RATIFYING

CONVENTION, 1788


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individual liberties than the federal government.‖126

Peripheral to their concern for individual liberty, the Founders were keen on safeguarding of economic liberty, and sustaining a commercial republic conducive to the prosperity of her citizens. Experience under the Articles of Confederation made apparent the maladministration by the various states, which had enacted noxious protectionist legislation and tariffs against their sister states. This economic interference proved detrimental to free-flow of interstate commerce and preserving the bond of amity so integral to the Union‘s continuance.127 State legislatures were also prone to assorted mischief in the economy under the Confederation as they passed statutes that impaired the obligation of contracts, reversed court judgments, suspended their Senates, annulled contracts, and printed their own fiat money. Some newly independent states confiscated the property of former British loyalists in violation of the Treaty of Paris. One state enacted statutes that made the title-deed to useless pine barons as legal tender for the payment of debts. Economic prosperity suffered as result of such mischief.128 The states had become in Hamilton‘s words, ―wretched nurseries of unceasing discord,‖ and bastions of ―elective despotism.‖129

In response to these imprudent measures, the framers sought to restrain the states from misguided intervention in the economy to ensure the free flow of goods and services. The Union thus became a free trade pact under the Constitution. Hence Congress is vested with the power to ―regulate‖ interstate commerce thus making commerce ―regular‖ throughout the Union.130 States are prohibited from impairing obligations of contracts, as the Contract Clause prohibited laws that abridged the freedom of contract (―No state shall…pass any…law impairing the Obligations of Contracts.‖) This freedom provided a constitutional bar against impeding the sanctity of contracts, which led to the stability and prosperity of American commerce.131

THE REPRESENTATIVE REPUBLICAN FOUNDATION

THE FOUNDERS WERE REPUBLICANS and committed to a system of governance that found its basis on ‗the consent of the governed.‘ Classical republican theory holds that the people are the sovereigns and the authority to exercise the power of government emanates from the people.132 Hamilton held ―the origin of all civil government, justly established, must be a voluntary compact between the rulers and the ruled.‖133 Madison held ―the people are the only legitimate fountain of power, and it is from them that the constitutional charter… is derived…‖134 The Declaration of Independence stated, ―…Governments are instituted among Men, deriving their just powers from the consent of the governed...‖135 This idea of ‗rule by consent of the governed‘ had

126 Michael W. McConnell, Constitution, Democracy and State Power: The Institutions of Justice, Joshua Cohen, Archon Fung, eds. 4 Vols. (Northampton, MA:

Edward Elgar Pub., 1996), 1:351; Michael W. McConnell, ―Book Review,‖ 54 U. Chi. L. Rev. 1484, 1505-1506 (1987). 127 U.S. Const., Art. I. § 8. Cl. 1; Thomas Dilorenzo, How Capitalism Saved America: The Untold Story of Our Country From the Pilgrims to the Present (New

York, NY: Crown Forum, 2004), 81. 128 McDonald, States‘ Rights and the Union, 17; Charles F. Hobson, ―The Negative on State Laws: James Madison, the Constitution, and the Crisis of

Republican Government,‖ William & Mary Quarterly, Vol. 36, No. 2., Third Series (April 1979), 222. 129 Ibid., McDonald; Gairdner, The Trouble With Democracy, 32. 130 The Declaration of Independence and the Constitution of the United States of America, Roger Pilon, ed. (Washington, DC: Cato Institute, 1998), 5. 131 U.S. Const., Art. I. § 8. Cl. 1; Thomas Dilorenzo, How Capitalism Saved America: The Untold Story of Our Country From the Pilgrims to the Present, (New

York, NY: Crown Forum, 2004), 81. 132 Hamilton, ―Federalist #84,‖ The Federalist Papers, Wright, ed., 534. 133 Alexander Hamilton quoted in John Phillip Reid, The Authority of Rights: Constitutional History of the American Revolution, (Madison, WI: Univ. of

Wisconsin Press, 1986), 132. 134 Madison, ―Federalist #40,‖ The Federalist Papers, Wright, ed., 348; Berger, Federalism, 30. 135 Thomas Jefferson, ―The Declaration of Independence,‖ 4 July, 1776, The American Republic: Primary Sources, Bruce Frohnen, ed. (Indianapolis, IN:

Liberty Fund, 2003), 189-191, viz. 189.

―As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived…‖ —JAMES MADISON


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ancient roots, and applied to monarchies as well as republics. The Scottish Declaration of Arbroath (1320) proclaimed that King Robert the Bruce owing to ―Divine Providence‖ along with ―the due consent and assent of us all, have made him our prince and king.‖ Even monarchies sought to find legitimacy in rule acknowledged by consent of the governed.136

As the federal government is theoretically one of limited powers entrusted to representatives and their appointees for specific and defined purposes, the people delegate only so much authority and power to government as necessary for sustaining ordered liberty.137 Madison defined a ―republic‖ as ―a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.‖ Disavowing oligarchy, he added,

It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified…138

This republic would be representative in both form and function without the Old World vestiges of monarchy or hereditary aristocracy.139 This representative government stood contrary to a direct democracy.140 James Madison commented on the mischief posed by democracy:

[A] pure democracy… can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole… there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual… Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.141

If left unchecked a democracy would prove itself inimical to liberty.

‘CONSENT OF THE GOVERNED’

―Government derives its just authority from the consent of the governed.‖142 It is from the authority of the people that the legitimate delegation of power flows to government. The keystone of rule by consent is integral to the federal compact.143 It is the instrumentality of the state governments through their ratifying assent to the Constitution, and adherence to the laws of the Union, who manifest the consent of their respective peoples.

St. George Tucker (1780 – 1848), the protégé of George Wythe and later professor of law at the College of William and Mary enunciated the compact doctrine with remarkable clarity. His View of the

136 ―The Declaration of Arbroath,‖ April 6, 1320, The Avalon Project at Yale Law School, 28 May 2007.

<http://www.yale.edu/lawweb/avalon/eurodocs/arbroath_1320.htm> 137 Kirk, The American Cause, 68-69. 138 Madison, ―Federalist #39,‖ The Federalist Papers, Wright, ed., 280-281. 139 McDonald, Novus Ordo Seclorum, 5. ―[T]he Framers shared the commitment in the abstract, they were far from agreed as to what republicanism

mean, apart from the absence of hereditary monarchy and hereditary aristocracy.‖ 140 Thomas Jefferson, ―Letter to Isaac H. Tiffany,‖ 1816, The Writings of Thomas Jefferson, Memorial Edition, Andrew Lipscomb and Albert Ellergy Bergh,

eds. (Washington, DC: Thomas Jefferson Mem. Assoc., 1905), Vol. 15, 65. 141 Madison, ―Federalist #10,‖ The Federalist Papers, Wright, ed., 124. 142 Tucker, View of the Constitution of the United States, 123. 143 Jeff Brauch, Is Higher Law Common Law? (Littleton, CO: Rothman, 1999), 42. Blackstone observed, ―The language of a compact is, ‗I will, or will not,

do this;‘ that of a law is, ‗thou shalt, or shalt not, do it.‘ It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all.‖


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Constitution of the United States offered a forthright exposition of the character of the American government.144 He observed that free government must ―be founded in general consent and compact, the most natural and the only legitimate method of constituting a civil power.‖145 He discerned the compact element within the American constitutional order:

It is a compact freely, voluntarily, and solemnly entered into by the several states, and ratified by the people thereof, respectively: freely, there being neither external, nor internal force, or violence to influence, or promote the measure; the United States being at peace with all the world, and in perfect tranquility in each state: voluntarily, because the measure had its commencement in the spontaneous acts of the state-legislatures, prompted by a due sense of the necessity of some change in the existing confederation: and, solemnly, as having been discussed, not only by the general convention who proposed, and framed it; but afterwards in the legislatures of the several states, and finally, in the conventions of all the states, by whom it was adopted and ratified.146

Hence the continuance of the traditional ―confederated‖ union depends upon the good faith or voluntary compliance of its member states. As Hamilton noted in reference to the treatise of Baron de Montesquieu, The Spirit of the Laws, ―The confederacy may be dissolved, and the confederates preserve their sovereignty.‖147 In describing the Constitution, Tucker noted:

It is a federal compact; several sovereign and independent states may unite themselves together by a perpetual confederacy, without each ceasing to be a perfect state. They will together form a federal republic: the deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements. The extent, modifications, and objects of the federal authority are mere matters of discretion; so long as the separate organization of the members remains, and from the nature of the compact must continue to exist, both for local and domestic, and for federal purposes; the union is in fact, as well as in theory, an association of states, or, a confederacy.148

The Constitution embodies a compact among peoples of sovereign political societies, each in their sovereign capacity, and was differentiated from the loose federal arrangement under the Articles. The Constitution was not by any means a Lockean compact between ruler and ruled nor was it a compact among the whole people.149 Rather the Constitution aims to uphold the integrity of the states, as it places limits not only on power, but also on majority rule, and yet preserves the sovereign character of its constituent states from whence its authority derives. Its foundation rests on the basis of rule by consent of the governed. Some nationalist theorists have been apt to draw misguided parallels between the American Union and the 1707 Acts of Union between England and Scotland.150 But as Tucker analyzed William Blackstone‘s opinion, it is revealed that such a position is in error:

The kingdoms of England and Scotland are united into one kingdom; and the two contracting states by such an incorporate union are, in the opinion of Judge Blackstone, totally annihilated, without any power of revival. From which he expresses a doubt whether any infringements of the fundamental and essential conditions of the union, would of itself dissolve the union of these kingdoms, though

144 Clyde N. Wilson introduction to Tucker, View of the Constitution of the United States, vii-xvii. 145 St. George Tucker quoted in Charles Pinnegar, Virginia and State Rights, 1750-1861: The Genesis and Promotion of a Doctrine (Jefferson, NC: McFarland

and Co., 2009), 156. 146 Ibid., 106. 147 Hamilton, ―Federalist #9,‖ The Federalist Papers, Wright, ed., 124-129. 148 Tucker, View of the Constitution of the United States, Wilson, ed., 92. 149 McDonald, States‘ Rights and the Union, 8-9. McDonald observed, ―[it] would be a compact not among sovereign states, as the 1781 Articles of

Confederation, nor a Lockean compact between ruler and ruled, nor even a compact of the whole people among themselves. It would be a compact among peoples of different political societies, in their capacities as people of the several states. Such a compact was undreamed of in political philosophy.‖; John Phillip Reid, The Authority of Rights: Constitutional History of the American Revolution, (Madison, WI: Univ. of Wisconsin Press, 1986), 133. Reid cited who Gordon Wood: ―[T]his Lockean notion of a social contract was not generally drawn upon by Americans in their dispute with Great Britain, for it had little relevance in explaining either the nature of their colonial charters or their relationship to the empire.‖ This is acquiescent with Forrest McDonald‘s citation.

150 Akhil Amar, America‘s Constitution: A Biography (New York, NY: Random House, 2005), 29; Lewis Cruger, Catechism of the Constitution of the United States, (1863), 36.


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he readily admits, that in the case of a federate alliance, such an infringement would certainly rescind the compact.151

In contrast to the Union existing in the United Kingdom of Great Britain, the original American Union is perceptibly foederate (federal) in character. ―In Great Britain, a new civil state is created by the annihilation of two antecedent civil states; in the American States, a general federal council, and administrative, is provided, for the joint exercise of such of their several powers, as can be conveniently exercised in that mode, leaving their civil state unaltered…‖152 If the bond of the Union has a secure basis in the consent of its people, then the society may be pronounced to be free and republican. On the question of being citizens or subjects, Americans stirred in favor of the former. Consent in a republic cannot ethically, legally or logically be coercively imposed from above. Where constraint, fear and subjugation constitute that bond, such an imagined Union is akin to the relationship of master and bondservant.

Tucker elucidated upon the character of the federal polity: ―[E]ach state retains its antecedent form of government, its own laws, subject to the alteration and control of its own legislatures only; its own executive officers, and council of state; its own courts of judicature, its own judges; its own magistrates, civil officers, and officers of the militia; and, in short, its own civil state, or body politic, in every respect whatsoever.‖153 Tucker observed that American Union stood firmly atop a republican foundation:

It is therefore a fundamental principle in all the American States, which cannot be impugned, or shaken; that their governments have been instituted by the common consent, and for the common benefit, protection, and security of the people, in whom all power is vested, and from whom it is derived: that their magistrates, are their trustees and servants, and at all times amenable to them; and that when any government shall be found inadequate, or contrary, to the purposes of its institution, a majority of the community hath an indubitable, unalienable and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.154

John Taylor acquiesced, ―It ought to be considered as a compact, an organization of a government limited by the compact, and as a law in relation to individuals.‖ He stressed, ―Its essential stipulation as a compact is the division of power between the state and federal governments.‖155 It is vital to a republic that sovereignty be regarded as derivative from the people. Commensurate with the tenets of the 1776 Revolution, and reiterated by Publius in Federalist No. 39, popular sovereignty traces its origins not to an undifferentiated mass of the American people. Each state assembled in convention, and then ratified the Constitution by their consensual act, and without compulsion.156

A QUESTION OF SOVEREIGNTY

Examination of the theory of sovereignty as it is stood in the republic‘s formative years is beneficial to ascertaining the character of American federalism. The nationalist view held sovereignty coincident with a strong centralized state. As historian William Dunning noted, ―The definition and development of sovereignty, as a concept of political science, had been almost entirely the work of those who, like Bodin and Hobbes, were defending absolute monarchy. By the liberalizing school of Locke and Montesquieu the idea of sovereignty was evaded as unnecessary in theory and dangerous in practice—a mortal foe to

151 Tucker, View of the Constitution of the United States, Wilson, ed., 77. 152 Ibid. 153 Ibid. 154 Ibid., 34. 155 John Taylor, Construction Construed, and Constitutions Vindicated (Richmond, VA: Shepherd & Pollard, 1820), 136. 156 James Madison. ―Federalist #39,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 283; Tucker, 32.

―Legitimate government, then, can only be established by the voluntary consent of the society, who by mutual compact with each other grant certain specified powers, to such agents as they may from time to time choose to administer the government thus established, and their agents are responsible to the society for the manner in which they may discharge the trust delegated to them.‖


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liberty.‖157 During the debate on the Articles of Confederation, there was a debate over the nature of state sovereignty and whether or not the states retained the attributes of national sovereignty under the confederation.158 The Old World belief that sovereignty is in its nature inviolable and the republican belief in the ultimate sovereignty of the people over the state complicated matters more.159 In his Commentaries on the Laws of England, Blackstone defined law as ―a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.‖ That prescribing ―supreme power‖ was the sovereign. ―Sovereignty and legislature are indeed convertible terms.‖ He observed ―there is and must be‖ in every state ―a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of the sovereignty, reside.‖ In fealty to natural law, he deduced that positive law had to be compatible with natural law, and ―no human laws are of any validity, if contrary to this.‖ He pronounced that ―if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it.‖160 Thus the sovereign could create subsidiary units of power that were revocable at the discretion of the sovereign. Dividing sovereignty would involve the paradoxical problem of imperium in imperio (literally ‗supreme sovereignty within supreme sovereignty.‘)161

Of the predicament posed by placing the locus of sovereignty, William. Gairdner observed that ―modern political leaders‖ are confronted by ―the ancient problem of Imperium in Imperio,‖ which poses a concern for ―how to reconcile conflicting sources of authority within the same jurisdiction.‖ This problem is acute in modern federal systems, irrespective of the established (theoretical) constitutional divisions of power. There is a natural tendency from the onset for ―a stealthy encroachment by central government‖ representing an ―attack‖ or ―absorption‖ of the ―powers of constituent jurisdictions… provinces, states or cantons.‖ This process is ―replicated‖ by the states ―as they engulf the original powers of their own constituent jurisdictions,‖ such as ―cities‖ and ―towns.‖ With the absorption of basic units of a federal system, sovereignty then ends up in the hands of the rulers. ―Lower levels of government are all but powerless when customary or legal barriers are breached.‖ Theoretical formulations about sovereignty being derivative of the people face hurdles to sustaining true republican forms, and rely on the structural integrity of a federal system, especially its inbuilt symmetry of powers.162

The Founders sought to avoid the continuance of Old World controversies by negating the usage of ‗sovereignty‘ as a juridical concept in their fundamental charter of government.163 Whereas the term ‗sovereignty‘ appeared in the Articles of Confederation, it remained conspicuously absent from the later Constitution. Across the Atlantic in the Old World, ‗sovereignty‘ delineated the Hobbessian ‗divine right of kings,‘ a baneful doctrine to republican-spirited Americans. St. George Tucker quipped, ―[T]he union of a SOVEREIGNTY of a state with the GOVERNMENT, constitutes a state of USURPATION and absolute tyranny,

157 William Dunning quoted in Bovard, Freedom in Chains, 212. 158 McClellan, Liberty, Order, and Justice, 157. 159 Kevin Gutzman, The Politically Incorrect Guide to the Constitution (Washington, DC: Regnery, 2007), 40. 160 William Blackstone, Commentaries on the Laws of England in Four Books, 12th ed. (London, 1793), 1:44; William Blackstone quoted in McDonald, States‘

Rights and the Union, 1. 161 Ibid. 162 Gairdner, The Trouble With Democracy, 356. 163 Luigi Marco Bassani, ―Jefferson, Calhoun and State‘s Rights: The Uneasy Europeanization of American Politics,‖ Telos (Winter 1999), 152. ―The

term sovereignty has had different meanings in America and Europe. In America, sovereignty had a clear anti-statist function (in as much as the sovereignty of the constituent units was construed as a barrier to the consolidation of the Union), while in Europe sovereignty is still the keyword for the construction of state and statehood (predicated on the absolute politicization of the term state and totally hostile to any concept of politics beyond or outside the state synthesis). American sovereignty is simply the power to promulgate laws and is free of all the elements that presided over the construction of the modern state in Europe and were systematized by the dogmatic German school of the past century. For early American theorists, sovereignty was not a ‗genetic concept,‘ the midwife of the state, or the metaphysical attribute of statehood. Rather, it derived from the hermeneutics of the American compact. The ultimate question on sovereignty in American political thought was never the all-encompassing European one of ‗who is sovereign?‘ but always ‗what kind of interpretation of the Constitution is consistent with the system of power sharing established by it?‘ For the exponents of the States Rights school, … state sovereignty and the compact nature of the federal bond are the results (not the premises) of all intellectual operations of constitutional construction. The states are not free and independent political communities despite the ratification of the Constitution, but because of it.‖


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over the PEOPLE.‖164 Hence the American people, true to their republican character, insisted that they were sovereign over the government. ‗Sovereignty‘ should be understood as an extra-constitutional concept derived from European political discourse. Some of the Founders could not concur on where the locus of sovereignty stood in the federal system.165 Was it a state or national phenomenon? Madison held this question to be rooted in a misconception of republicanism:

The federal and state governments are in fact but different agents and trustees of the people… The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments… as uncontrolled by any common superior in their efforts to usurp the authority of each other. These gentleman must be reminded of their error. They must be told that the ultimate authority… resides in the people alone.166

Madison seemed apt to commit constitutional fission by splitting the atom of ‗sovereignty.‘ He conceptualized a system of divided sovereignty where both the states and the federal government were deemed ‗sovereign‘ in their respective spheres. He opined, ―[E]ach State, in ratifying the Constitution, was to be considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.‖167 By this implication, he concluded that the locus of ‗sovereignty‘ is to be placed within the body of the people.168 ‗Sovereignty,‘ by inference, devolved upon the states with independence. State ‗sovereignty‘ is discernible in the procedure for ratification and amendment of the Constitution. Madison declared:

It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible, and was in fact divided, according to the Constitution of the United States, between the States in their united and the States in their individual capacities that as the States, in their highest sovereign character, were competent to surrender the whole sovereignty and form themselves into a consolidated State, so they might surrender a part & retain, as they have done, the other part, forming a mixed Govt. with a division of its attributes as marked out in the Constitution.169

Tucker begged the logical inference that ―The right of sovereignty, therefore, in all cases not expressly ceded to the United States by the constitution, or prohibited by it to the several states, remains inviolably, with the states, respectively.‖170 The idea of divided sovereignty, inventive as it may sound, became a hallmark of Federalist political thought.171

At the onset, Alexander Hamilton disdained the idea of divided sovereignty—implying that ‗sovereignty‘ is a national phenomenon: ―The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power.‖172 Where had this national ‗sovereignty‘ come from? Following independence from Britain,

164 Tucker, View of the Constitution of the United States, 24. 165 Charles R. Kesler, ―The Higher Law and Original Intent,‖Arguing Conservatism: Four Decades of the Intercollegiate Review, Mark Henrie, ed. (Wilmington,

DE: ISI Books, 2008), 225. ―The positive theory of law requires a clear definition of sovereignty, but America has never had one. Or, to put it more precisely, the United States has had from the beginning a notion of sovereignty that itself complicated and ambiguous, two things that the idea of sovereignty should not be. Indeed, much of the American argument against the British Parliament‘s efforts to exert authority over the colonies in the years after the Seven Years‘ War was dismissed out of hand by learned men on both sides of the Atlantic, as an attempt to divide the indivisible phenomenon of sovereignty, to construct an imperium in imperio—a fallacy in political reasoning so blatant as immediately to call into question the Americans‘ good motives.‖

166 James Madison, ―Federalist #46,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 330. 167 Madison, ―Federalist #39,‖ The Federalist Papers, Wright, ed., 283. 168 Joyce Lee Malcolm, ―The Novelty of James Madison‘s Constitutionalism,‖ James Madison and The Future of Limited Government (Washington, DC: Cato

Institute, 2002), 50. ―Madison‘s determination that sovereignty must reside with the people, not the legislature, provides a distinction between the governments of England and America which has driven the two constitutions in starkly different directions. In the 18th century this was, to a greater extent than is usually appreciated, a distinction without difference…‖

169 Breckinridge Waller, The True Doctrine of State Rights (Chicago, IL: Jameson & Morse, 1880), 13. 170 Tucker, View of the Constitution of the United States, Wilson, ed., 126. 171 M.J.C. Vile, The Structure of American Federalism (Oxford, England: Oxford University Press, 1961), 25. 172 Hamilton, ―Federalist #9,‖ The Federalist Papers, Wright, ed., 128.


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the States proclaimed their sovereignty in 1776 as ―free and independent states.‖173 Hamilton spoke derisively of those who ―seem to cherish with blind devotion the political monster of an imperium in imperio.‖174 At the Philadelphia Convention, Hamilton exclaimed: ―Two Sovereignties cannot co-exist within the same limits.‖175 Yet with his foot in his mouth, Hamilton later affirmed: ―The State governments, by their original constitutions, are invested with complete sovereignty.‖176 He conceded that after ratification, the States will ―retain [the taxing] authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power unwarranted by any article or clause of its Constitution.‖ The state governments retain ―all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States.‖177

As one traces the oscillating dialectic of Hamilton‘s thought patterns, it is apparent that he conciliated himself to the notion of divided sovereignty. He charted a new course. To counter the contentions of those who held ‗sovereignty‘ to be an exclusively state phenomenon, his new articulation was that ‗sovereignty‘ encompassed a multitude of powers that could be allocated to different governments or else divided between departments within the same government. ―The powers of sovereignty are in this country divided between the National and State Governments,‖ and ―each of the portions of powers delegated to the one or to the other … is … sovereign with regard to its proper objects.‖ It followed ―that each has sovereign power as to certain things, and not as to other things. To deny that the Government of the United States has sovereign power as to its declared purposes & trusts, because its power does not extend to all cases‖ would by inference deny that the States had retained sovereignty ―in any case,‖ since they were constitutionally forbidden from the exercise of specific powers. ―And thus the United States would‖ in Hamilton‘s words ―furnish the singular spectacle of a political society without sovereignty, or of a people governed without government.‖178

John Taylor advanced the Old Republican critique. Disinclined to invoke the notion of political sovereignty in describing the Union, he insisted that the people alone were ‗sovereign,‘ in particular the people of the several states each in their sovereign capacities. The thirteen original commonwealths were the building blocks of the federal union. The federal government possessed no ―innate sovereignty,‖ and was merely a creature of the Constitution; and its ‗sovereignty‘ is incidental to the delegation of powers in the instrumentality of the Constitution itself. He conceptualized the states as ―state-nations.‖179 In Construction Construed and Constitutions Vindicated, Taylor made this astute insight:

Sovereignty implies superiority and subordination. It was therefore inapplicable to a case of equality, and more so to the subordinate power in reference to its creator. The word being rejected by our constitutions, cannot be correctly adopted for their construction; because, if this unanimous rejection arose from its unfitness for their design of defining and limiting powers, its interpolation by construction for the purpose of extending these same powers, would be an evident inconsistency. It would produce several very obvious contradictions in our political principles. It would transfer sovereignty from the people, (confining it to mean the right of self-government only,) to their own servants. It would invest governments and departments, invested with limited powers only, with unspecified powers. It would create many sovereignties, each having a right to determine the extent of its sovereignty by its own will. And if two sovereignties over the same subjects could never agree,

173 Kevin Gutzman, The Politically Incorrect Guide to the Constitution (Washington, DC: Regnery, 2007), 40. 174 Hamilton, ―Federalist #15,‖ The Federalist Papers, Wright, ed., 157. Imperium in imperio—literally supreme sovereignty within supreme sovereignty. 175 McDonald, Novus Ordo Seclorum, 277. 176 Hamilton, ―Federalist #31,‖ The Federalist Papers, Wright, ed., 239. 177 Ibid., Hamilton, ―Federalist #32,‖ 241. 178 Syrett, ed. Papers of Hamilton, 8:98; McDonald, Novus Ordo Seclorum, 278. 179 John Taylor, New Views on the Constitution of the United States (Washington, DC: Regnery Pub., 2000), 43; Merrill Jensen, The Articles of Confederation

(Madison: University of Wisconsin Press, 1966), 161-176; Warren L. McFerran, Political Sovereignty: The Supreme Authority in the United States (Sanford, FL: Southern Liberty Press, 2005), 15; Claude H. Van Tyne, ―Sovereignty in the American Revolution,‖ American Historical Review 12 (April 1907), 529-545.


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it would propose for our consideration what was to be expected from an army of sovereignties. Our constitutions, therefore, wisely rejected this indefinite word as a traitor of civil rights, and endeavored to kill it dead by specifications and restrictions of power, that it might never again be used in political disquisitions.180

In a broadside against Hobbesian and Machiavellian political dogmas of the Enlightenment, Taylor went onto to surmise that ‗sovereignty‘ was an attribute that rightly belonged to God alone:

In fact, the term ―sovereignty,‖ was sacrilegiously stolen from the attributes of God, and impiously assumed by kings. Though they committed the theft, aristocracies and republicks have claimed the spoil. Imitation and ignorance even seduced the English puritans and the long parliament to adopt the despotism they resisted; and caused them to fail in accomplishing a reformation for which they had suffered the evils of a long war. By assuming divine rights, because they had been claimed by kings and popes, and drawing powers from an inexhaustible store-house, they aggravated the tyranny they intended to destroy, and merited the fate which they finally experienced. Presbyteries and synods snatched the keys of Heaven from popes and bishops, and the long parliament, those of property from the king; and both demonstrated what man would do with the powers of Providence. By our constitutions, we rejected the errors upon which our forefathers had been wrecked, and withheld from our governments the keys of temporal and eternal rights, by usurping which, their patriots had been converted into tyrants; and invested them only with powers to restrain internal wrongs, and to resist foreign hostility; without designing to establish a sovereign power of robbing one citizen to enrich another.181

Taylor‘s summation offered a unique perspective on sovereignty in the context of republicanism and southern conservative thought. His judgment stood that the ―national sovereignty‖ postulated by Hamilton and Madison in 1787 ―would throw into confusion all the weights, and unhinge the whole architecture of the checks and balances.‖182 Hamilton‘s conceptualization of sovereignty in nationalistic terms found scarce acknowledgement from republicans committed to upholding the federal character of the Union.

John C. Calhoun postulated an indivisible sovereignty, which he perceived through a republican lens as vested in each of the various state-peoples (i.e., the people of the Commonwealth of Virginia, the people of the State of South Carolina, et al.).183 Calhoun‘s Senate speech on 15 February, 1833 held: ―Sovereignty is in its nature indivisible. It is the supreme power in a State, and we might just as well speak of half a square, or half of a triangle, as of half a sovereignty,‖ stated Calhoun in disapprobation of a theory of divided sovereignty. ―It is a gross error to confound the exercise of sovereign powers with sovereignty itself, or the delegation of such powers with the surrender of them. A sovereign may delegate his powers to be exercised by as many agents as he may think proper, under such conditions and with such limitations as he may impose; but to surrender any portion of his sovereignty to another is to annihilate the whole.184

The theory of divided sovereignty proved errant according to Calhoun. ―Sovereignty is an entire thing; — to divide [it], is to destroy it.‖ Final authority resided ―in the people, not in the Government; and with us, the people mean the people of the several States originally formed into thirteen distinct and independent communities…‖185 Federal power emanated from a delegation of limited powers from the innate sovereigns, the people of the several states, each in their sovereign capacities.186

180 John Taylor, Construction Construed, and Constitutions Vindicated (Richmond, VA: Shepherd & Pollard, 1820), 26. 181 Ibid; Kevin Gutzman, Virginia's American Revolution: From Dominion to Republic, 1776-1840 (Lanham, MD: Lexington Books, 2006), 128, 171. 182 John Taylor, An Inquiry into the Principles and Policy of the Government of the United States (1814; reprt. New Haven, CT: Yake Univ. Press, 1950), 428; W.

Kirk Wood, Nullification: A Constitutional History, Vol. 1, James Madison, Not the Father of the Constitution (Lanham, MD: Univ. Press of America, 2008), 93. 183 M.J.C. Vile, The Structure of American Federalism (Oxford, England: Oxford University Press, 1961), 26. 184 John C. Calhoun, ―Speech on the Force Bill,‖ John C. Calhoun: Selected Writings and Speeches, H.L. Cheek, Jr. ed., (Washington, DC: Regnery Pub.,

2003), 291. 185 Ibid., ―Letter to Governor James Hamilton, Jr.,‖ 365. 186 Ibid., ―Discourse,‖ 82.


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* * * *

Insofar as the agent, the federal government, may be deemed sovereign, such sovereignty found its basis in delegation and consent from the people who are the innate sovereigns.187 The ambiguous concept of ‗sovereignty‘ remains a secondary issue to ascertaining the true character of American government at its impetus. Scholars have made misguided, even indulgent inquiries into conceptualizing ‗sovereignty‘ in the American framework of law. These studies remain speculative theory at best, omit reference to the fact it was an alien import by royalists in Europe. Republican ideology, and its distinctive populist conceptions of government, cut entirely against the notion of ‗sovereignty‘ being possessed by the state. Even republicans made recourse to the term ‗sovereignty‘ after ratification, but it was in reference to popular sovereignty, i.e., the people of the several states. In another sense, conceptualized as sphere sovereignty, one could speak of the states and federal authority as fully sovereign entities, supreme in the exercise of their own powers, but this view tends to be deemed illogical and anti-republican. In republican parlance, in fealty to the principles of 1776, one must in final appeal refer only to the people as the innate sovereigns. It is from the delegation of the people that power gains and sustains its authority and legitimacy. When the Founders acknowledged ‗sovereignty‘ as republicans, they held it to be inherent in the ‗people,‘ and it is by their consent that the government obtains its legitimacy to govern.

It is prudent to stir examination from the extra-constitutional concept of ‗sovereignty,‘ and focus on political developments to better ascertain the character of federalism. That the sovereignty question may be regarded as unsettled does not pose a challenge to discovering the true character of the federal system. Sovereignty is not the linchpin of federalism theory. Jurist Robert Bork asserted ―our constitutional liberties arose out of historical experience… They do not rest upon any general theory,‖ and least of all upon ideological constructs such as sovereignty. It is neither by reason nor reference to abstractions that one may construe the American political tradition or grasp its understanding of sovereignty.188 Patrick Henry posited a better guide than reason. ―I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging the future but by the past.‖ The faith of American statesmen in their cherished republican-spirited political philosophy did not emanate from groundless theories, but from the conviction that these vital precepts were tried and true. Historical experience informed these principles and indelibly shaped them. Hence esteem for rule by consent, constitutionalism, and the rule of law.189

A QUESTION OF ORIGINAL INTENT

―Great regard,‖ wrote Lord Coke, ―ought in construing a statute, to be paid to the construction which the sages of the law who lived about the time or soon after it was made, put upon it, because they were best able to judge of the intention of the makers at the time the law was made.‖190 Similar high regard should be paid in construing constitutions and subsequent amendments to the intentions of its framers. Jefferson exclaimed, ―The constitution on which our Union rests, shall be administered… according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption…‖191 Madison professed ―the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.‖ In that sense only it is ―the legitimate Constitution.‖ Without such an understanding, ―there can be no security for a consistent and stable, more than for a

187 Tucker, View of the Constitution of the United States, Wilson, ed., 126. 188 Charles Kesler, ―The Higher Law and ‗Original Intent,‘‖Arguing Conservatism: Four Decades of the Intercollegiate Review, Mark Henrie, ed. (Wilmington,

DE: ISI Books, 2008), 225. 189 Patrick Henry quoted in McClellan, Liberty, Order, and Justice, 22; Kevin Gutzman, Virginia's American Revolution: From Dominion to Republic, 1776-1840,

(Lanham, MD: Lexington Books, 2006), 23. 190 Theodore Sedgwick, A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law (New York, NY: J.S. Voorhies,

1857), 251. 191 Thomas Jefferson to Messers, Eddy, Russel, Thurber, Wheaton, and Smyth, March 27, 1801, The Quotable Jefferson, Kaminski, ed., 56-57.


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faithful exercise of its powers.‖ If the meaning of the blackletter text is to be ascertained, ―it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.‖ Linguistic evolution—that is changes in the common understanding of semantics poses a problem, as ―the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject.‖192 Hence as the evolution of the American English language posed problems for future generations in constitutional interpretation, it begged the propriety of resorting to the proceedings of the debates to frame and ratify the Constitution. Special regard is to be afforded to the original understanding of its framers and ratifiers. After all, contracts are interpreted in accord with the intention of their makers. ―On every question of construction carry ourselves back to the time when the Constitution was adopted,‖ wrote Jefferson in 1823, ―recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.‖193 When construing constitutions and statutes, jurists and laypersons alike should focus upon the intent of the lawmakers who authored them, and the intentions ascribed by the people who ratified such laws.

The character of the Union has been a point of contention since the formative years of the republic. In 1798, the Alien and Sedition Acts raised the issue of the limits of presidential powers, and the issue of the states‘ right to interpose their authority against the usurpation of liberties. Behind these controversies stood the perennial question: is the government of the United States to be regarded as a creature of its states and the Union thus a compact among sovereignties? Or is it a union of citizens, joined together in a distinctively national government, whereby the states were subordinate members of a greater whole?194

A cursory glance of the debates at the Philadelphia Convention to draft a Constitution might give credence to the nationalist conception of the American polity. A careful, honest observer who prudently traces historical developments should perceive the compact nature of the Union however. The presence of a consolidating faction at the Constitutional Convention of 1787 by no means vindicates the nationalist reading of its product, the U.S. Constitution.195 Contemporary nationalist historiography suggests the anti-Federalists lost everything at Philadelphia, as do reactionary works like Conspiracy at Philadelphia, but these views are misleading.196 Tracing the debates reveals that the advocates of consolidation were rebuffed time and time again. Those skeptics of a remote national power shaped the dialectic of the debates to frame and ratify the Constitution. The representations made to the ratifiers is overwhelmingly in favor of states‘ rights and thus indicative of the original understanding of the Constitution.197 To secure ratification, and uphold the Union, the beleaguered nationalists made ample concessions during the debates with the promise of

192 Spencer Roane quoted in Peter Zavodnyik, The Age of Strict Construction: A History of the Growth of Federal Power (Washington, DC: The Catholic Univ.

of America Press, 2007), 5. 193 Thomas Jefferson to William Johnson, 12 June 1823, The Writings of Thomas Jefferson, P.L. Ford, ed. (1897), Vol. 10, 226-32; David N. Mayer, The

Constitutional Thought of Thomas Jefferson, (Charlottesville, VA: Univ. of Virginia Press, 1994), 285. 194 The American Republic: Primary Sources, Bruce Frohnen, ed. (Indianapolis, IN: Liberty Fund, 2003), 381. 195 M.E. Bradford, Founding Fathers: Brief Lives of the Framers of the United States Constitution (Lawrence, KN: Univ. Press of Kansas, 1994). Alexander

Hamilton, Gouverneur Morris, James McClurg and James Wilson may be identified as the prominent nationalists amongst the attendees at the Philadelphia Convention to frame the Constitution, as they were strongly in favor of consolidation bordering on the monarchal-unitary principle; Elazar, ―Our Thoroughly Federal Constitution,‖ How Federal is the Constitution?, Goldwin and Schambra, eds., 38-66. For ascertaining the federal character of the Union, Elazar‘s is a starting point.

196 Gary North, Conspiracy in Philadelphia: Origins of the U.S. Constitution (Harrisonburg, VA: Dominion Educational Ministries, Inc., 2004). 197 M.E. Bradford, Original Intentions: On the Making and Ratification of the United States Constitution (Athens, GA: Univ. of Georgia Press, 1993), x.; Richard

Ellis, ―The Persistance of Anti-Federalism,‖ Beyond Confederation: Origins of the Constitution and American National Identity (Univ. of North Carolina Press, 1987), 295-314; Herbert Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution (Chicago, IL: Univ. of Chicago Press, 1981), 15. ―The Anti-Federalists‘ defense of federalism and of the primacy of the states rested on the belief that there was an inherent connection between the states and the preservation of individual liberty…‖


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later amendments.198 For if the ―foundation of the American polity were laid by the Federalists,‖ remarked Herbert Storing, ―the [a]nti-Federalist reservations echo through American history; and it is in the dialogue, not merely in the Federalist victory, that the country‘s principles are to be discovered.‖199 If anything, ratification may be deemed a victory for the moderate Federalists who were attentive to preserving the federal character of the Union while advocating a modest augmentation of the powers of the Union.200

Some light toward proper construction of the Constitution may be obtained through the study of the notes of James Madison and Robert Yates at the Philadelphia Convention. There are the famous Federalist Papers, a special pleading for adoption of the Constitution, and addressed ―To the People of the State of New York.‖ Written by Alexander Hamilton, John Jay, and James Madison, these pamphlets were originally published in newspapers in New York City. The pamphlets posed insightful speculation upon the proposed Constitution in 1787. The work merits notoriety as a masterpiece of political persuasion. Many persons try to ascertain the original understanding based solely on the Federalist. This may prove misguided. The Federalist Papers were not widely disseminated at the time of its publication.201 That Hamilton was its chief author detracts from its value, as he favored ―as strong a unitary state as he could get,‖ and Hamilton was aloof from the sentiments of his contemporaries. His bias crept into his writing in spite of his nominal efforts to tender an understanding of the Constitution as it had been framed in convention. Hamilton‘s support for the Constitution was born of reluctance and a pragmatic desire to preserve the Union by securing its ratification.202 He was conspicuously absent from much of the proceedings of the Philadelphia Convention, having left for New York City to lobby for ratification.203

The occasion of the Federalist is crucial to contextualize why Hamilton only reluctantly conceded states‘ rights were integral to the Union (when his predilections were in favor of consolidation.)204 Gottfried Dietze astutely noted,

The split personality of the Federalist can be considered the root of the dualism that became so

198 Akhil Amar, The Bill of Rights (New Haven, CT: Yale Univ. Press, 1998), 4. ―Alongside this nationalist tradition, however, lay a states‘ rights

tradition—also championed by Madison—that extolled the ability of local governments to protect citizens against abuses by central authorities. Classical statements of this view include Madison‘s Federalist No. 46, his Virginia Resolutions of 1798, and his Report of 1800. Heavy traces of these ideas appear even in the work of the strong centralizer Alexander Hamilton.‖; Evans, The Theme is Freedom, 263. ―In the chief concession by the ‗nationalists,‘ the states were given equal representation in the Senate, set over against the popularly elected House; they were also made units of voting for the presidency, authorities on questions of the franchise, and ultimate arbiters on the amendments of basic law—as well as the entities that, via their conventions, would authorized the Constitution to begin with.‖

199 Storing, What the Anti-Federalists Were For, 60; Murray Dry quoted in W. Kirk Wood, Nullification: A Constitutional History, Vol. 2, James Madison and the Constitutionality of Nullification (Lanham, MD: Univ. Press of America, 2008), xxix.. As Murray Dry recalled the anti-Federalists‘ influence, he proclaimed their principles ―are more relevant to an understanding of the American founding and American polity… than has usually been supposed.‖ These statesmen are ―entitled… to be counted among the Founding Fathers… the Constitution that came out of the deliberations of 1787 and 1788 was not the same Constitution that went in…‖

200 Marshall DeRosa, ―M.E. Bradford‘s Constitutional Theory: A Southerner Reactionary‘s Affirmation of the Rule of Law,‖ A Defender of Southern Conservatism: M.E. Bradford and His Achievements, Clyde Wilson, ed. (Columbia, MO: Univ. of Missouri Press, 1999), 92-129; John Taylor of Caroline, New Views on the Constitution of the United States, James McClellan, ed. (Washington, DC: Way and Gideon, 1823, repr. Washington, DC: Regnery Publishing, 2000), 326. ―It is a fact that a national supremacy was proposed and rejected in the convention.‖

201 Graham Walker, ―Virtue and the Constitution,‖ Vital Remnants: America‘s Founding and the Western Tradition. Gary L. Gregg II, ed. (Wilmington, DE: ISI Books, 1999,) 112. ―What is the status of The Federalist Papers? The American people never ratified The Federalist Papers. They ratified the Constitution. If Americans are authoritatively bound, it is by the Constitution that binds them, not essays published in the New York newspapers during 1787 and 1788… Even if you subscribe to original intent, you cannot reasonably reduce [it] to Madison, Hamilton, and Jay (whose conjoint mind became the Publius of the Federalist Papers‖; Albert Furtwangler, The Authority of Publius: A Reading of the Federalist Papers (Ithaca, NY: Cornell Univ. Press, 1984), 19. ―The Federalist did not reach very far or achieve enormous popularity throughout America, and there were more powerful forces that swayed the final voting, especially in New York.‖; Pauline Maier, Ratification, The People Debate the Constitution (New York, NY: Simon & Schuster, 2010), 257. ―The writings of ‗Publius‘ had little if any impact on the Massachusetts ratifying convention: Some three months after it had adjourned, the Federalist delegate George Cabot said he had seen only a few essays from the series…. [M]ost delegates to the Virginia convention probably had never seen The Federalist—or, for that matter, many other essays on the Constitution.‖

202 Daniel J. Elazar, ―Our Thoroughly Federal Constitution,‖ How Federal is the Constitution?, Robert A. Goldwin and William A. Schambra, eds., (Washington, DC: American Enterprise Institute, 1987), 40; Broadus Mitchell, Alexander Hamilton: A Concise Biography (New York, NY: Barnes and Noble, 1999), 156; Clinton Rossiter, Alexander Hamilton and the Constitution (New York, NY: Harcourt Brace, 1964), 34; Thomas E. Woods, Jr., Nullification: How to Resist Federal Tyranny in the Twenty-First Century (Washington, DC: Regnery Pub. 2010), 25-26.

203 Alexander Hamilton, John Jay, and James Madison, The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), xi-xii.

204 Benjamin F. Wright, ed. introduction to The Federalist, 5-6; Kevin Gutzman, The Politically Incorrect Guide to the Constitution (Washington, DC: Regnery, 2007), . PAGE NUMBER


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characteristic of American constitutional development. The disagreement over the nature of the Union may have contributed to nullification and secession or, for that matter, to the fight against these institutions. Likewise, Hamilton‘s and Madison‘s differing opinions on federalism were used when the Supreme Court interpreted the Constitution and largely account for that Court‘s oscillation between dual federalism and nationalism. Also, the author‘s different conceptions of separation of powers seem to mark the beginning of a struggle between the legislative, executive, and judicial branches of government, evident throughout American history.205

A misplaced emphasis on the authority of Publius leads to uncertainty in construal of the Constitution. At times, Hamilton proved demonstrably faulty in his prognosis of the probable operation of the government.206 (The stance held by John Marshall on the judiciary at the Virginia Convention of 1788 even differed from Hamilton‘s anticipated broad role for the federal judiciary as articulated in the Federalist.)207 Madison disclaimed his approval for the positions taken by Hamilton in their collaboration. In a late-life explication, the elder Madison stated that neither he nor Hamilton gave approval to each other‘s views, but sought the common goal of persuasion towards ratification in New York State.208

The character of the constitutional order in the formative years of the republic remained shrouded in a measure of obscurity.209 More to the point, why is the character of the federal Union no clearer at its impetus? Going beyond the issues of the authority of the Federalist, the Philadelphia Convention proceedings were conducted in secrecy and sealed for decades.210 Second, those nationalist constituencies with the ambition for a strong centralized government at Philadelphia began redefining what the Constitution meant during the political contests of the 1790s. They did so without due regard for the representations made to the ratifiers.211

When John Taylor of Caroline was finally armed with Robert Yates notes from the Philadelphia Convention, which had been sealed to the public until 1823, he conjectured:

Had the journal of the convention which framed the constitution of the United States, though obscure and incomplete, been published immediately after its ratification, it would have furnished lights towards a true construction, sufficiently clear to have prevented several trespasses upon its principles, and tendencies towards its subversion. Perhaps it may not be yet too late to lay before the publick the important evidence it furnishes.212

In contrast, in 1821, confirmed that he possessed ―materials for a pretty ample view of what in that

205 Dietze, The Federalist, A Classic on Federalism and Free Government, 273. 206 Furtwangler, The Authority of Publius. 207 Lawrence Goldstone, The Activist, John Marshall, Marbury v. Madison, and the Myth of Judicial Review (New York, NY: Walker & Co. 2008), 61.

―Hamilton, to reassure the people of New York, described the judiciary far differently than John Marshall would in the Virginia ratifying convention… Hamilton had not even present in the Convention when the Supreme Court‘s power, as defined in the Committee of Detail, were hashed out.‖

208 Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, NY: Cornell Univ. Press, 1995), 396. Author‘s Note – Banning conjectures this ―was probably an honest recollection of genuine discomfort he had felt while the Federalist was being written.‖ His ―unwillingness to be identified with all of Hamilton's opinions is of obvious importance to our understanding of his thought and to the long debate about the nature of The Federalist itself.‖

209 James McClellan quoted in John Taylor, New Views on the Constitution (Washington, DC: Way & Gideon, 1823, reprint, Washington, DC: Regnery Publishing, 2000), . ―American political leaders and members of the bar had struggled with the fact that the original intent of the Framers was, in many cases, a mystery.‖

210 Jonathan Eliot, ed., Eliot's Debates, 1:142-143; Tucker, View of the Constitution, 205; John R. Vile, The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America‘s Founding (Oxford, UK: ABC-CLIO, 2005), 2:695; James McClellan, Joseph Story and the American Constitution (Norman, OK: Univ. of Oklahoma Press, 1971), 114. McClellan remarked, ―We may join the realists in snickering at judges of the old school like Judge Story, who in their innocence and naïveté sincerely believed that they merely ‗found‘ the law when deciding a case and left intact the original understanding of those who framed and ratified the Constitution… ¶The members of the Marshall Court, in fact, did not even have access to the intent of the framers through Madison‘s notes.‖

211 Berger, Federalism, 26; Felix Morley, Freedom and Federalism, 108-110. Consider Hamilton‘s disingenuous efforts to recollect the discussion of incorporation and a national bank at Philadelphia, as both objects in Hamilton‘s proposal were rejected from being amongst the enumerated powers during the framing of the Constitution; Bernard H. Siegan, The Supreme Court‘s Constitution: An Inquiry Into Judicial Review (New Brunswick, NJ: Transaction Publishing, 1987), 8-9. ―In an opinion that seems totally inconsistent with the position that he took in Federalist No. 33, Hamilton asserted ‗that the principles of construction like those espoused by [Jefferson] and [Randolph] would be fatal to the just and indispensible authority of the United States.‘‖; Shalhope, John Taylor of Caroline, 208. ―A minority of men desiring a national form of government were thwarted at the Philadelphia convention but had worked diligently ever since to change the Constitution through interpretation and legislation.‖

212 Ibid., 13.


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Assembly,‖ being the copious chronicler of its proceedings. Madison argued instead:

As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention have no authoritative character. [T]he legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses. [emphasis mine]213

Madison lauded the proceedings of the state ratification conventions (that is the representations made to the ratifiers) as the normative authority for constitutional interpretation. What differentiates the Philadelphia Convention from the state ratifying conventions is that the former was tasked only with drafting the Constitution and the later state conventions were tasked with evaluating it and ultimately authorizing it as a legitimate instrument of the people.214 A clearer consensus as to its intentions coalesced in the ratification debates rather than in the mishmash dialectic of the Philadelphia Convention proceedings in which the Constitution was being debated and framed. Those who voted for ratification were entitled to rely upon the representations made as to its meaning. The Constitution is to be construed in accord with ―the meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanations of those who advocated it,‖ wrote Jefferson.215 Taylor noted in debate in the Virginia House of Delegates that the proceedings of the state ratification debates ―ought to be looked upon as a contemporaneous exposition… [of the] constitution.‖216

The minority nationalists made ample concessions to states‘ rights in the ensuing ratification debates. They pressed for the adoption of an essentially federal constitution. Before and during the proceedings of the state ratifying conventions, the nationalists manifested a dialectical mode to their thinking. Amid criticism, the nationalists appeared responsive and conciliatory to aim of alleviating the skeptics of ratification. Moreover they did not hold sway over the Philadelphia Convention as evident by the Great Compromise. At the New York Convention, Hamilton avowed ―whatever is not expressly given to the Federal Head, is reserved to the members.‖ The people had ―already delegated their sovereignty and their powers to their several state governments; and these cannot be recalled, and given to another, without an express act.‖ When New York ratified in 1788, its ratifying ordinance outlined its understanding of the Constitution as a compact, and the conditions of its assent. ―Every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the United States of America, or the departments of the government thereof remains to the people of the several States, or to their respective State governments.‖217 The consensus of the ratifying conventions was that the delegation of powers did not include a surrender of the states‘ innate sovereignty.

Accordingly seizing upon every faint echo of consolidationist sentiment at the Philadelphia Convention and declaring it as indicative of the Constitution as ratified is deceptive. The direction of the convention shifted during the course of framing the Constitution. The federal principle prevailed over the unitary national-principle at the time of ratification. Of the tendency of consolidating nationalists to overplay their hand at the Philadelphia Convention, Madison explained in a letter to J.G. Jackson in 1821:

213 James Madison to Thomas Ritchie, Sept. 25, 1821, The Records of the Federal Convention of 1787. Max Farrand, ed. (New Haven, CT, 1937), 3:447-48;

Furtwangler, The Authority of Publius, 36. 214 Madison, ―Federalist #40,‖ The Federalist Papers, Wright, ed., 290-291. ―It is time now to recollect that the powers were merely advisory and

recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood.‖

215 Thomas Jefferson quoted in Berger, Federalism, 10. 216 John Taylor of Caroline quoted in The Virginia Report of 1799-1800 Touching the Alien and Sedition Laws; Together With the Virginia Resolutions of December

21, 1798, The Debate and Proceedings Therein in the House of Delegates of Virginia, and Several Other Documents (Richmond, VA: J.W. Randolph, 1850), 27. 217 Woods, Nullification, 33.


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That most of us carried into the Convention a profound impression produced by the experienced inadequacy of the old Confederation, and by the monitory examples of all similar ones ancient & modern, as to the necessity of binding the States together by a strong Constitution is certain... The view of the crisis made it natural for many in the [Philadelphia] Convention to lean more than was perhaps in strictness warranted by a proper distinction between causes temporary as some of them doubtless were, and causes permanently inherent in popular frames of Govt... For myself, having from the first moment of a maturing opinion, down to the present one, never ceased to be a votary of the principle of self-Govt: I was among those most anxious to rescue it from the danger which seemed to threaten it; and with that view was willing to give a Govt resting on that foundation, as much energy as would ensure the requisite stability and efficacy. It is possible that in some instances this consideration may have been allowed a weight greater than subsequent reflection within the Convention, or the actual operation of the Govt. would sanction.218

The anti-Federalists (i.e., ―Federal Republicans‖) according to some observers were defeated with the adoption of the Constitution, but it should be apparent that they profoundly shaped the consensus developed, and the drive for the later amendments in 1791. They successfully pushed the consensus towards a more federal framework that preserved the independence of the states.219 With the compromise effectuated by Roger Sherman and John Dickinson, a more reasonable conclusion is that nationalists bent on consolidation had their aims thwarted by the Constitution as framed and ratified. State sovereignty was widely acknowledged by the thirteen state ratifying conventions, and integral to the representations used to secure ratification.220 Madison queried, ―What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.‖221 This understanding is the linchpin in the case for

states‘ rights doctrine.

FOR FURTHER READING

● Alexis de Tocqueville, Democracy in America, (1835-40), represents the travelogue of Frenchmen Alexis de Tocqueville on his journey to America, with the purpose of subjecting its political system to a lengthy analysis and examination. He approaches the American political system with an appreciative curiosity, though his perspective is a bit one-sided as his travels were confined to New England. ● John Eidsmore, Christianity and the Constitution: The Faith of our Founding Fathers captures the relevance of Christianity and its distinct worldview upon the American Founding Fathers. ● M. Stanton Evans, The Theme is Freedom: Religion, Politics, and the American Tradition, (1994), challenges the notion that the principles of the American nation were founded on Enlightenment philosophy. Rather he holds that these principles have continuity to the Middle Ages, and emanate from the West's underlying Judeo-Christian moral tradition. ● Felix Morley, Freedom and Federalism (1981), offers a compelling defense of the American system of federalism, and emphasis is paid to the role of the states within the system. ● M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd Ed. (1998), offers a thoughtful constitutional history of the separations of powers doctrine throughout the West with emphasis on Great Britain and the United States, and the political theory of Baron de Montesquieu. ●

218 James Madison to J.G. Jackson, 1821, The Records of the Federal Convention of 1787, Max Farrand, ed. (New Haven, CT, Yale Univ. Press, 1911), 3:405. 219 Peter Zavodnyik, The Age of Strict Construction: A History of the Growth of Federal Power

(Washington, DC: The Catholic Univ. of America Press, 2007), 34-35. ―Whether the Federalists liked it or not. Americans intended to hold them to the representations they had made during the struggle of 1787-1788.‖

220 M.E. Bradford, Original Intentions: On the Making and Ratification of the United States Constitution, (Athens, GA: Univ. of Georgia Press, 1993). 221 Madison, ―Federalist #40,‖ The Federalist Papers, Wright ed., 288-289.