The federal constitution ratified by the people of the States provided for a limited government to handle specified joint affairs of the States. The document describes itself not as “the U.S. Constitution” or the “Constitution of the United States,” but as a “Constitution FOR the United States of America.” With this in mind, read what follows in the preamble as the purposes of this instrument: “forming a more perfect Union,” “common defense,” and “general welfare.” Throughout the document “United States” is a plural (the States United) and treason against the United States consists of levying war against THEM.

As clear and simple as these facts are and have always been, grasping them seems to be beyond the abilities of presidents, congresspersons, supreme court justices, and professors of “Constitutional Law” at the most prestigious institutions.

In recent times the abuses of these people (what the Founders would have described as “usurpations” justifying rebellion) have run amuck, distorting an already wounded constitution beyond recognition. Ambition, rent-seeking, willful historical ignorance, deceit, ideology, and the lust for power (which the Founders hoped to guard against) have rendered the real constitution of our forefathers virtually null and void. This has prompted serious citizens to re-expound what the Constitution for the United States is supposed to be. There have been good books in this vein by Professors Thomas Woods, Walter K. Wood, and Kevin Gutzman, and by William J. Watkins and Judge Andrew Napolitano.

James Madison is reputed by those who don’t know any better to be the “Father of the Constitution.” In fact, Madison lost more votes than he won at Philadelphia, although he did more maneuvering and scribbling than any other delegate. In his almost half-century of post-ratification life Madison was all over the place, contradicting himself numerous times on constitutional interpretation. But Madison himself in one of his more lucid moments tells us where we should look for the meaning of the Constitution. The meaning of the Constitution, he avowed, is to be found in the understanding of those who ratified it, who alone gave what was merely a proposal all the authority it possesses.

The latest contribution to this field is The Founding Fathers Guide to the Constitution by Professor Brion McClanahan, just published by Regnery History. McClanahan’s treatment of the subject is in many ways the best, a concise, hard hitting constitutional handbook that goes right to the true source of understanding without being diverted by later commentaries and judicial opinions. What the drafters of the Constitution meant is revealed in the first place but not exclusively or even primarily by their discussions and votes, including the ideas that were voted down. (Many of those reappeared later touted as legitimate federal powers.)

So we must look for understanding at the discussions that preceded the ratification conventions and at the conventions themselves. McClanahan knows this ground thoroughly and tells us in convincing chapter and verse on each article what those who ratified the Constitution intended and, perhaps more importantly, what they did not intend.

The opponents of the Constitution feared that the document would prove an instrument for the incremental establishment of a centralized dictatorship over the people. They were right. But, as McClanahan makes clear, the proponents of the Constitution swore point by point that the powers granted were limited and no cause for alarm. These assurances persuaded some of the doubtful. Ratification would never have passed otherwise, and, as it was, it only passed with assurances that amendments would be swiftly adopted and with several States making it clear that their ratification was revocable.

The Federalist, which we see cited all the time as the key to the Constitution is speculation and was never ratified by anybody. But handicapped thinkers read Madison’s philosophical ruminations, nearly all of which have been proved superficial and wrong, and imagine themselves participating in deep thoughts about government and learning about the true Constitution. This is part of the long-established practice of treating the Constitution as something sacred handed down by divine wisdom rather than understanding it by its real history.

So in interpretation we ought to be guided by what the proponents of the Constitution plainly said it intended. This is what McClanahan elucidates point by point. If we accept what its proponents said, then those who ratified it believed that it established a limited federal power. Third-string “political philosophers” and “Constitutional scholars,” and even learned jurists, have made an icon out of The Federalist, but it is only one of many discussions of the Constitution. It was a partisan document designed to overcome the objections of New York, and was not very convincing to its audience since ratification passed in New York by the narrowest possible margin Furthermore, it discusses the Constitution as it was merely a proposal under consideration and not the Constitution as ratified by the people of the States, who made their intentions clear in the undisputable language of the 10^th Amendment.

The authors – Madison, Hamilton, and Jay – were all disappointed that the Constitution did not centralize power as much as they would have liked, yet realized what they had to say to win over the majority. On the part of Alexander Hamilton, contributions to The Federalist were outright dishonest, because once he got into power he worked to do all sorts of things that he claimed the Constitution did not authorize.

The Constitution is there. It can still be known and understood by honest citizens. As McClanahan writes, the real Constitution is a “limiting document,” not a grant of limitless power. Whether that Constitution can ever be established again is a question of political will and whatever is left in the American people of a capacity for self-government.

Clyde Wilson [send him mail] is a recovering professor. Now that he is no longer a professor of history he can at last be a real historian. He is the editor of The Papers of John C. Calhoun. His forthcoming book,Forgotten Conservatives in American History (Pelican, 2012), is co-authored by Brion McClanahan.

Copyright © 2012 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Get the Jefferson T-Shirt Here!

by Tom Woods

Someone on my Facebook fan page asked about a letter Thomas Jefferson wrote to James Madison on October 28, 1785. The person said his leftist friends were waving this letter around as evidence that Jefferson was some kind of semi-socialist wealth redistributionist. I contacted my friend Marco Bassani, professor at the University of Milan and author of the excellent book Liberty, State, and Union: The Political Theory of Thomas Jefferson. One of the major points in that book is that Jefferson was in fact a Lockean natural-rights thinker who conceived of property rights as natural, not conventional (i.e., government-granted).

Here’s the letter in question, and what follows is Professor Bassani’s reply.

First of all one has to understand that Thomas Jefferson was not Locke, Hobbes, or Marx: inconsistencies are to be found here and there, especially in private correspondence. His correspondence with Madison in particular is full of these things. The letter is TJ to James Madison, 28 Oct. 1785, Papers 8:681-82.

He is writing from Paris to his friend Madison, whom he believes to be too conservative.

He meets a poor woman and gives her some money for telling him directions. “This little attendrissement, with the solitude of my walk led me into a train of reflections on that unequal division of property which occasions the numberless instances of wretchedness which I had observed in this country and is to be observed all over Europe” [emphasis added]. He is not talking about the U.S., or speaking in general. He just sees the Revolution coming and speculates about wealth. Thus:

The property of this country is absolutely concentered in a very few hands…. But after all these comes the most numerous of all the classes, that is, the poor who cannot find work. I asked myself what could be the reason that so many should be permitted to beg who are willing to work, in a country where there is a very considerable proportion of uncultivated lands? These lands are kept idle mostly for the aske of game. It should seem then that it must be because of the enormous wealth of the proprietors which places them above attention to the increase of their revenues by permitting these lands to be laboured.

Nothing socialist so far.

I am conscious that an equal division of property is impracticable. But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree is a politic measure, and a practicable one.

This is the only measure he actually always and consistently favored.

Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions of property in geometrical progression as they rise.

Jefferson is stating a means, not saying he agrees with such an extreme measure. In fact, he always opposed it, having written that the tax system must “be equally and fairly applied to all. To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare [give] to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, ‘the guarantee to every one of a free exercise of his industry, and the fruits acquired by it.’ If the overgrown wealth of an individual be deemed dangerous to the State, the best corrective is the law of equal inheritance to all [of his kin] in equal degree; and the better, as this enforces a law of nature, while extra-taxation violates it. (Thomas Jefferson, Note in Destutt de Tracy’s Political Economy, 1816.)

To continue with Jefferson’s letter to Madison:

Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labour and live on. If, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be furnished to those excluded from the appropriation. If we do not the fundamental right to labour the earth returns to the unemployed. It is too soon yet in our country to say that every man who cannot find employment but who can find uncultivated land, shall be at liberty to cultivate it, paying a moderate rent. But it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.

All this is a revisit of John Locke, especially the “Lockean proviso” we find in Locke’s Second Treatise.  In the state of nature, Locke held, a stringent condition that must be met in order for the acquisition of previously unowned property to be considered just was that following the appropriation, there must be “at least…enough, and as good left in common for others.” Thus Locke:

As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property…. God and his reason commanded him to subdue the earth—i.e., improve it for the benefit of life and therein lay out something upon it that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

Taken at face value, the Lockean proviso would result in a complete prohibition of appropriation in the state of nature. As Murray Rothbard has pointed out, “Locke’s proviso may lead to the outlawry of all private ownership of land, since one can always say that the reduction of available land leaves everyone else, who could have appropriated the land, worse off.”

Jefferson’s assertions concerning land and the sovereignty of the present generation is nothing more than an extension of the limits on exploitation set by Locke. Putting property to good use (a prohibition against waste) and the Lockean proviso (appropriation of goods without causing a deterioration in the condition of others) are restrictions that hold in the relations between generations.

Generations stand facing one another, as do whole nations or individuals in the state of nature. Therefore, the law of nature regulates their relations. It is the duty of a generation to leave land “enough and as good” for the following generations. This is evidently an extension of the proviso, because the properties are the same. One’s own successors do not enjoy a generic right to unexplored lands, but to the specific property already owned by their parents. Just as the new generations have the right to get property that is not burdened with debts, so also the “others,” those who do not participate in that specific appropriation, have exactly the same right to enjoy land “enough and as good” in the Lockean state of nature. Similarly, property cannot be exploited and destroyed, jeopardizing the future of the coming generations. Waste is not countenanced by the law of nature.

The sovereignty of the present generation can thus be defined as the right to receive a world in which the present has not been mortgaged by the ancestors. Every nineteen years, according to Jefferson’s calculations (which were based on the mortality tables formulated by Georges Louis Leclerc, Comte de Buffon), a generation comes into the world. This generation has the right to a fresh start, whereas the one that preceded it had the duty not to destroy the world in which the present generation must live. It is a radical Lockean outlook, not a pseudosocialist one.

Thomas E. Woods, Jr., [visit his website] a senior fellow of the Ludwig von Mises Institute, is the author of eleven books, most recently Rollback: Repealing Big Government Before the Coming Fiscal Collapse and Nullification: How to Resist Federal Tyranny in the 21st Century, as well as the New York Times bestsellers Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse and The Politically Incorrect Guide to American History. He is also the editor of five other books, including the just-released Back on the Road to Serfdom.

Constitutional theorist Daniel Dreisbach writes, many Americans “made salient contributions in thought, word, and deed to the construction of America’s republican institutions.” One of them was Hugh Williamson. Few today have heard of him, and almost everyone overlooks this founding father when trying to learn of the “original intent” of the Constitution. That’s a mistake. To ignore Williamson (and founders other than the usual five or six historical figures) is an inadequate approach to understand proper originalism.

When bypassing those lesser-known founders, we view the past through a distorted lens. And despite our best efforts, that view will be at best an image with a fuzzy outline that prevents us from seeing otherwise distinguishing and valuable features.

“Original intent,” then, mistakenly becomes nothing other than the opinions of a handful, and we ignore the role of the ratifying conventions and the wisdom of other leading public figures in understanding the process of ratification and the federal underpinnings of our government.

An examination of Hugh Williamson and his ideas sheds more light on the path to understanding “original intent.” Why? He was one of the most active delegates at the Philadelphia Constitutional Convention, and his opinions were respected across America.

Williamson, an Edenton resident, delivered more than 70 speeches at the convention and was appointed to five committees (the second most of any delegate). He had a particularly strong interest in economic questions, serving on committees to consider questions such as state debts and the slave trade.

While considering these questions of immediate import to the young republic, Williamson made a large number of smaller contributions to the Constitution. After other delegates proposed that national senators serve seven-year terms, Williamson suggested the six-year term that eventually resulted. Moreover, his comments on the procedure for trying the president after impeachment affected the outcome of that debate; while delegates had considered granting the Supreme Court the power to try the president, they eventually deemed trial by the Senate a more desirable option.

After the convention, Williamson wrote a number of essays supporting the new Constitution. On November 8, 1787 — at the same time the initial essays of what would become The Federalist Papers were written — Williamson spoke to the people of Edenton and Chowan County, and to North Carolinians, about the reasons for ratifying the Constitution and countered arguments by Antifederalists.

This speech was later titled “Remarks on a New Form of Government,” and the next year it was republished in papers in New York, Pennsylvania, South Carolina, and Massachusetts, when the people in those states were debating the merits of the Constitution and whether it needed a Bill of Rights.

“Remarks” is, for lack of a better word, remarkable. Many of the Federalist Papers are so verbose and convoluted — and almost dodgy at times — that in some ways they were and remain esoteric. Williamson is more concise and straightforward. He seems to have made efforts to reach a broader audience without dumbing down sophisticated arguments. With strategic placement of appeals, a sense of national honor, and literary flair, the former Presbyterian ministerial student, member of the American Philosophical Society, and physician emphasized the weaknesses of the Articles of Confederation and the strengths of the Constitution.

In particular, Williamson pointed out how North Carolina could benefit from ratifying the Constitution. The state was at a geographic disadvantage in regards to ports and trade, and could benefit from national trade and uniform economic practices. Being part of something bigger, in essence, could benefit individual Tar Heels and the overall North Carolina economy.

Throughout the essay, Williamson argued for securing liberty and property, and he thought that the Constitution would accomplish that. If he was wrong, Williamson writes, he hoped his political opponents would “charge those errors to the head, and not to the heart.”

Originally published in CarolinaJournal.com – reposted here with permission of the author.

Troy Kickler [send him email] has been Director of the North Carolina History Project since August 2005. He holds an M.S. in Social Studies Education from North Carolina A&T State University and a Ph.D. in history from the University of Tennessee. His specialty areas are nineteenth-century U.S., Civil War and Reconstruction, African American, and religious history.

On a typical day, Mary leaves her home in the morning to go to work. Once on the road, her vehicle passes by multiple traffic and red light cameras that monitor her driving in the event that she might break a traffic law. Upon arriving at work, she is monitored by security cameras as she enters the building and rides in an elevator up to her desk. After work, Mary stops by her local grocery store to pick up a few items, where her every move is tracked by closed circuit security cameras from the time she enters the parking lot to the time she leaves. On her way home, she is stopped at a police sobriety checkpoint, where she is required by law enforcement to hand over her driver’s license for review and submit to a breathalyzer test even though there is no reason to suspect that she is impaired.

John travels by plane frequently for his business. Today, after picking up his ticket, he is selected for enhanced security screening. John knows that he can choose to opt out of the body scanners, which take naked pictures of his body through his clothes, because of the questionable safety of the devices. Instead he opts for a pat down. He is required to leave his personal items unsupervised while his body and genitals are probed and prodded by a TSA agent. While he is receiving his pat down, John also notices a small child being subjected to the same pat down. When John’s pat down is complete he is allowed to return to his property, he discovers a TSA agent going through his credit cards, cash, receipts, and other items in his wallet.

Obviously Mary and John are fictional characters, but their stories are real and shared by millions of Americans every day. Our world is one in which we have been so conditioned to tolerate gross invasions of our persons and property that we simply can’t fathom what it is to be truly “secure in our persons.”

The Fourth Amendment to the U.S. Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

To understand the Fourth Amendment, we need to go back to the conditions that led the Founders to write it into the fabric of the Constitution. During the colonial era, the British government would issue documents called writs of assistance to authorize law enforcement to perform searches. These writs of assistance were a major source of controversy in the years leading up to the American Revolution, as unlike a modern search warrant, the writs were vague in nature. A writ of assistance did not require probable cause in order to be issued, nor did it have to specify the place to be search or the items for which law enforcement was to search. Any items that were suspected to be untaxed or illegally imported could be seized – with or without proof of any illegal activity. Often the officials who seized these items could keep or sell whatever they seized, leading to rampant abuse of the writs of assistance.

The Founders wanted to prevent these kinds of governmental abuses in their newly formed republic. They wanted people to be truly free to live as they pleased without interference by an overreaching nanny state. Because of their wisdom, Americans were once free to travel from place to place without their every move being recorded on surveillance cameras, without drivers licenses, and without being stopped randomly by police or searched by Transportation Safety Officers in the name of “safety” when there was no suspicion of a crime. This is what it meant to the Founders to be secure in their persons.

The state and local governments are by no means innocent in this downward spiral of personal freedom and security. It is the state and local governments that have either implemented or allowed traffic cameras, red light cameras, and warrantless stops by police with no suspicion of wrongdoing – all in the name of “safety.” Further, the state governments have neglected their constitutional duty to interpose themselves between the federal government and the people when the federal government oversteps the boundaries set forth in the Constitution. Clearly the battle the be secure in our persons is not limited to the federal level.

Now the federal government wants to go even further. We have government health care that will likely overtake and wipe out private health insurance for most people, and as a result the federal government will now have access to all sorts of detailed information on the state of our breasts, prostates, and colons among all the other information they collect on us. Where in the Constitution does it say that the government should be able to surveil our colons? That’s right, it doesn’t. The government is probing more and more deeply into our lives, into places where the Constitution says it has no business being. So what the heck happened between then and now?

“If you want to control the future, you must strip the next generation’s ability to imagine anything different.” – Ernie Hancock

We Americans have become so conditioned to accept whatever our government throws at us in the name of “safety” that we have completely forgotten what it is to live free and be secure in our persons. Our lives are so filled by surveillance cameras, worries about terrorism, fears about food safety, fears about illegal drugs, and other issues that we have forgotten the basics of our republic’s founding. As Mr. Hancock’s statement points out, if we can no longer imagine what it is to be free, then our future is going to be one where we lose more and more of our freedoms to the surveillance of the nanny state. Patrick Henry didn’t give his impassioned speech demanding “give me safety, or give me death.” He was prepared to give up safety and in fact his very life when he said:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

What would Patrick Henry say if he had to go through airport security today? I imagine some TSA agents and all Americans present would get a very fiery and passionate earful about allowing the freedoms that he and the rest of our Founders fought so hard to gift us to waste away. Just as we imagine Patrick Henry giving TSA agents a tongue lashing, we also have to start imagining the world in which we want to live just as Mr. Hancock pointed out. This is not easy, as quite frankly, it’s a world in which most people alive today have never lived. It was a world in which our Founders had never lived either, but they dared to imagine a different world and worked to bring their imagining to reality. Thanks to them, that world existed here once, and it can again. Like our Founders, we must imagine that world and work to make it happen at all levels of government – federal, state, and local.

So one we imagine true freedom and security, how do we make it happen? Fortunately, our Founders foresaw the day when America might not be the free republic they created. They didn’t want future generations to have to suffer through a bloody war to reclaim the freedoms for which they fought. That is why the Founders gave us the tools to peacefully re-imagine our republic in the form of the Tenth Amendment to nullify the unconstitutional actions of the federal nanny state. It’s up to us to fire up our imaginations and step up to the plate and use the tools our Founders gave us to take back those freedoms so that we can once again be truly secure in our persons.

Lesley Swann [send her email] is the state chapter coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th Amendment Group. She is a native of Anderson County, Tennessee.

Copyright © 2011 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Paine’s writings and philosophies still hold true today, but they are under attack.

On January 10-11, 2011, in commemoration of his historic work, we defend the philosophy held within his writings by holding a mass donation day in support of another revolutionary effort for the cause of liberty, The Tenth Amendment Center.

Please pledge right now to confirm your commitment to donate on January 10-11, 2011. www.commonsensemoneybomb.com

*******
Of the Origin and Design of Government
by Thomas Paine, Excerpted from Common Sense

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.

In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest; they will then represent the first peopling of any country, or of the world. In this state of natural liberty, society will be their first thought. A thousand motives will excite them thereto; the strength of one man is so unequal to his wants, and his mind so unfitted for perpetual solitude, that he is soon obliged to seek assistance and relief of another, who in his turn requires the same. Four or five united would be able to raise a tolerable dwelling in the midst of a wilderness, but one man might labour out the common period of life without accomplishing any thing; when he had felled his timber he could not remove it, nor erect it after it was removed; hunger in the mean time would urge him to quit his work, and every different want would call him a different way. Disease, nay even misfortune, would be death; for, though neither might be mortal, yet either would disable him from living, and reduce him to a state in which he might rather be said to perish than to die.

Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which would supersede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but Heaven is impregnable to vice, it will unavoidably happen that in proportion as they surmount the first difficulties of emigration, which bound them together in a common cause, they will begin to relax in their duty and attachment to each other: and this remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue.

Some convenient tree will afford them a State House, under the branches of which the whole Colony may assemble to deliberate on public matters. It is more than probable that their first laws will have the title only of Regulations and be enforced by no other penalty than public disesteem. In this first parliament every man by natural right will have a seat.

But as the Colony encreases, the public concerns will encrease likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet on every occasion as at first, when their number was small, their habitations near, and the public concerns few and trifling. This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act were they present. If the colony continue encreasing, it will become necessary to augment the number of representatives, and that the interest of every part of the colony may be attended to, it will be found best to divide the whole into convenient parts, each part sending its proper number: and that the ELECTED might never form to themselves an interest separate from the ELECTORS, prudence will point out the propriety of having elections often: because as the ELECTED might by that means return and mix again with the general body of the ELECTORS in a few months, their fidelity to the public will be secured by the prudent reflection of not making a rod for themselves. And as this frequent interchange will establish a common interest with every part of the community, they will mutually and naturally support each other, and on this, (not on the unmeaning name of king,) depends the STRENGTH OF GOVERNMENT, AND THE HAPPINESS OF THE GOVERNED.

Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. Freedom and security. And however our eyes may be dazzled with show, or our ears deceived by sound; however prejudice may warp our wills, or interest darken our understanding, the simple voice of nature and reason will say, ’tis right.

I draw my idea of the form of government from a principle in nature which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered; and with this maxim in view I offer a few remarks on the so much boasted constitution of England. That it was noble for the dark and slavish times in which it was erected, is granted. When the world was overrun with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsions, and incapable of producing what it seems to promise is easily demonstrated.

Absolute governments, (tho’ the disgrace of human nature) have this advantage with them, they are simple; if the people suffer, they know the head from which their suffering springs; know likewise the remedy; and are not bewildered by a variety of causes and cures. But the constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies; some will say in one and some in another, and every political physician will advise a different medicine.

I know it is difficult to get over local or long standing prejudices, yet if we will suffer ourselves to examine the component parts of the English Constitution, we shall find them to be the base remains of two ancient tyrannies, compounded with some new Republican materials.

First. — The remains of Monarchical tyranny in the person of the King.

Secondly. — The remains of Aristocratical tyranny in the persons of the Peers.

Thirdly. — The new Republican materials, in the persons of the Commons, on whose virtue depends the freedom of England.

The two first, by being hereditary, are independent of the People; wherefore in a CONSTITUTIONAL SENSE they contribute nothing towards the freedom of the State.

To say that the constitution of England is an UNION of three powers, reciprocally CHECKING each other, is farcical; either the words have no meaning, or they are flat contradictions.

First. — That the King it not to be trusted without being looked after; or in other words, that a thirst for absolute power is the natural disease of monarchy.

Secondly. — That the Commons, by being appointed for that purpose, are either wiser or more worthy of confidence than the Crown.

But as the same constitution which gives the Commons a power to check the King by withholding the supplies, gives afterwards the King a power to check the Commons, by empowering him to reject their other bills; it again supposes that the King is wiser than those whom it has already supposed to be wiser than him. A mere absurdity!

There is something exceedingly ridiculous in the composition of Monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required. The state of a king shuts him from the World, yet the business of a king requires him to know it thoroughly; wherefore the different parts, by unnaturally opposing and destroying each other, prove the whole character to be absurd and useless.

Some writers have explained the English constitution thus: the King, say they, is one, the people another; the Peers are a house in behalf of the King, the commons in behalf of the people; but this hath all the distinctions of a house divided against itself; and though the expressions be pleasantly arranged, yet when examined they appear idle and ambiguous; and it will always happen, that the nicest construction that words are capable of, when applied to the description of something which either cannot exist, or is too incomprehensible to be within the compass of description, will be words of sound only, and though they may amuse the ear, they cannot inform the mind: for this explanation includes a previous question, viz. HOW CAME THE KING BY A POWER WHICH THE PEOPLE ARE AFRAID TO TRUST, AND ALWAYS OBLIGED TO CHECK? Such a power could not be the gift of a wise people, neither can any power, WHICH NEEDS CHECKING, be from God; yet the provision which the constitution makes supposes such a power to exist.

But the provision is unequal to the task; the means either cannot or will not accomplish the end, and the whole affair is a Felo de se: for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and tho’ the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual: The first moving power will at last have its way, and what it wants in speed is supplied by time.

That the crown is this overbearing part in the English constitution needs not be mentioned, and that it derives its whole consequence merely from being the giver of places and pensions is self-evident; wherefore, though we have been wise enough to shut and lock a door against absolute Monarchy, we at the same time have been foolish enough to put the Crown in possession of the key.

The prejudice of Englishmen, in favour of their own government, by King, Lords and Commons, arises as much or more from national pride than reason. Individuals are undoubtedly safer in England than in some other countries: but the will of the king is as much the law of the land in Britain as in France, with this difference, that instead of proceeding directly from his mouth, it is handed to the people under the formidable shape of an act of parliament. For the fate of Charles the First hath only made kings more subtle — not more just.

Wherefore, laying aside all national pride and prejudice in favour of modes and forms, the plain truth is that IT IS WHOLLY OWING TO THE CONSTITUTION OF THE PEOPLE, AND NOT TO THE CONSTITUTION OF THE GOVERNMENT that the crown is not as oppressive in England as in Turkey.

An inquiry into the CONSTITUTIONAL ERRORS in the English form of government, is at this time highly necessary; for as we are never in a proper condition of doing justice to others, while we continue under the influence of some leading partiality, so neither are we capable of doing it to ourselves while we remain fettered by any obstinate prejudice. And as a man who is attached to a prostitute is unfitted to choose or judge of a wife, so any prepossession in favour of a rotten constitution of government will disable us from discerning a good one.

“We have it in our power to begin the world over again”

Tom Paine’s powerful words hold just as much meaning today as they did on January 10, 1776 when he first published Common Sense – what historians call “the most popular pamphlet of the entire revolutionary era.”

With a federal government that rarely follows the rules that govern it – the Constitution, that is – there’s a lot of work to do to “begin the world over again.” Our moment is now.

THE ESSENTIAL QUESTION

When the federal government violates the Constitution – what do we do about it? Do we lobby congress and ask federal politicians to limit federal power? Do we go to court and ask federal judges to limit federal power? Do we “vote the bums out” in the hopes that the new bums will give back all that power?

What do we do about it? That’s the question that more and more people are asking every day. Why? Because those three options are what we the people have been employing for nearly a century. In all that time, we the people have been marching and protesting. We the people have sued and voted bums out.

The result? I hate to be the bearer of bad news folks, but all these efforts have been a complete and utter failure. It doesn’t matter what political party is in power in Washington D.C. It doesn’t matter what individual occupies the White House either. Year in and year out, federal power grows and your liberty is reduced.

PARCHMENT

So what DO we do about it?

In Common Sense, Paine answered that question for us – “When we are planning for posterity, we ought to remember that virtue is not hereditary.”

While the ratification of the Constitution created a system of government to decentralize power and create fertile ground for liberty – if we’re relying on the federal government to police and limit itself, that power will always grow. In fact, other great founders like Thomas Jefferson and James Madison warned us that if the federal government ever became the sole and exclusive arbiter of the extent of its own powers, those powers would never be limited – regardless of elections, courts, separations of powers or any of the other vaunted parts of the American system.

As Paine warned us – “virtue is not hereditary.” So even if we were to have a perfect constitutionalist president. Or a Congress full of the same, there’s no guarantee that it would last, and sooner or later those that seek power for evil purposes would get in control. The history of the United States is all the proof we should ever need to understand this stark reality.

DUTY

The existence of the Constitution itself will never protect liberty. You need to. I need to. Our friends and family need to. It’s up to us.

Where does that leave us?

Well, it’s quite simple: We the People need to learn to exercise our rights whether they the government want us to or not!

ACTION FOR TODAY

Since 2006, the Tenth Amendment Center has been championing this message and consistently promoting liberty through decentralization. While the task may seem insurmountable at times – no matter how much the odds seem stacked against freedom, it’s essential to do what’s right. And for the Tenth Amendment Center, doing what’s right is pretty straightforward:

We demand adherence to the Constitution. Every issue, every time. No exceptions, no excuses.

But we need your help to continue these efforts. On January 10th, 2011, in commemoration of Thomas Paine’s historic work, we defend the philosophy held within his writings by holding a mass donation day in support of this revolutionary effort for the cause of liberty, The Tenth Amendment Center.

If you agree that an unconstitutional “law” is no law at all – stand up for the constitution and pledge to support the center in our work right now.

Only with your help can we being the world over again. So if you believe in the constitution and the message of the Tenth Amendment Center – the time to act is now. Not next year, not next month, and not next week. Today. Not tomorrow. Now.

Help us celebrate the anniversary of Common Sense. Help is what we need and help is what you can give us today. Click the banner below and pledge to support this movement now!

Modern American’s seem to have lost sight of essential truths clear to the country’s founders more than 200 years ago.

Today, everybody from mega agribusinesses executives to consumer advocates are lauding the Senate for passing a massive overhaul of the “food-safety” system. The legislation would grant broader inspection power to the F.D.A., allow the government to mandate product recalls, oversee farming and regulate the food production industry to an even greater degree.

“Everyone who eats will benefit,” said Caroline Smith DeWaal, food safety director of the Center for Science in the Public Interest, an advocacy group. “F.D.A. will have new tools to help ensure that we have a safer food supply that causes fewer outbreaks and illnesses.”

Benjamin Franklin would have likely taken a different view.

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

In fact, the FDA Food Safety Modernization Act represents yet another massive expansion of federal power, much of it unconstitutional. (And before you send me emails justifying this monstrosity based on the commerce clause, please do us both a favor and do a little research on the meaning of commerce as understood by the framers. Click here.)

Sadly, if history provides any insight at all, and it usually does, this act will do nothing to actually protect the American people. It will instead serve as a tool for big corporations to gain a competitive advantage over small, local farms and food producers. Don’t believe me? Ask yourself this – why else would big companies support legislation that on its face will exact huge costs in time, money and resources?

And it will also give politicians and bureaucrats yet another lever to maneuver and manipulate for their own purposes.

True to form, power hungry politicians and progressive thinkers have churned up the American public with scare tactics to gin up support for another expansion of government power –  as always, at the expense of liberty.

Proponents say the act will protect Americans from foodborne illnesses. But does the problem justify such a massive, expensive, intrusive cure?

Not really.

According the the Centers For Disease Control, only about 1,500 people per year die from salmonella and other known foodborne pathogens. Another 3,500 people die  from illnesses stemming from unknown foodborne pathogens. Many of those deaths result from improper food handling and cooking after purchase.

Certainly, 5,000 deaths is 5,000 deaths too many. Nobody wants to see fellow Americans die. Nobody wants tainted food on grocery shelves. But protecting citizens from every danger, risk and threat is not the role of the federal government – or any government for that matter.

But nanny state politicians continue taking us for a spin on a never ending carousel. Several thousand deaths under a heavily regulated system creates the panic necessary to enact even more expansive, overreaching regulation.

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To live life invites the risk of death. No law, act or government edict can mitigate that reality. Franklin was right. When we begin looking to others for protection from every eventuality, we necessarily give up our freedom, and in the end enjoy no greater safety.

Alexander Hamilton wrote of the threat to liberty posed by war. His reasoning applies equally to government’s other attempts to “protect” its citizens.

“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

Note: the legislation passed 73-25. Click here to see how your Senators voted.

Recently an article was published at lewrockwell.com wherein the author, Kirkpatrick Sale, asserts that it was the Founders’ evident intention to establish a powerful federal government. In fact, contrary to what many constitutionalists may believe, the Constitution as framed was intended to, and was successful in, paving the way for the massive federal usurpations that plague the United States today.

Mr. Sale wants to “wake up these ‘Tenthers’ and tell them that it’s a waste of time to try to resurrect that document [the Constitution] in order to save the nation — because the growth of government and the centralization of powers is inherent in its original provisions.” In fact, proclaims Mr. Sale, the Constitution “is not a document that will lead them to liberty and sovereignty.”

Despite some of the questionable activities listed in Mr. Sale’s résumé, I shall restrict my remarks to the refutation of the theses posited by him in the lewrockwell.com article. In this brief, I shall attempt to prove that the conclusions as to the Founders’ intentions have been grossly misconstrued by Mr. Sale in a blatant effort to wrest them to fit his notion of the best method of opposing tyranny.

Before beginning his unusual exegesis of the Constitution and the words of the Founders, Mr. Sale turns his sights on the Tenth Amendment Center and opens fire. After briefly quoting a segment of the Tenth Amendment Center’s mission statement, Mr. Sale explains that the true aim of the Tenth Amendment Center is to advocate for a “rigid interpretation of that amendment reserving to the states the powers not expressly given to the Federal government.” I do not speak for the Tenth Amendment Center — their spokesmen are able and informed — but as an attorney I would advise them to plead guilty to this charge.

As for the Tenth Amendment, Mr. Sale insists that it was no more than an afterthought for the Founders whose true affinity, he claims, was for a big, powerful, supreme central authority. As evidence of the Founders’ disdain, Mr. Sale points out that this “deficiency in that Constitution” was the last of ten amendments known as the Bill of Rights.

Every student of American history and the Constitution should be aware that a great many bills were considered for inclusion into the Bill of Rights. After lengthy congressional deliberation, however, 12 of the proposed measures were selected for a final vote, 10 of which passed. On December 15, 1791 these 10 amendments were ratified by the requisite number of states, thus being incorporated into the original constitution (one of the two “lost” amendments was ratified in 1992 and became the 27th Amendment). So, the Tenth Amendment is no more “at the end” of the Bill of Rights than is the First Amendment as a matter of legislative history.

With the Tenth Amendment Center and unincorporated “Tenthers” thus dismissed, Mr. Sale wheels around and takes aim at the Constitution Party. This group also suffers, he says, from a woeful lack of understanding of constitutional principles. Says Mr. Sale, the Constitution Party “has the idea that the nation’s problems can be solved by ‘a renewed allegiance’ to the Declaration of Independence and the Constitution and hence a return to ‘limited government.’ ”

Again, I’ve not been retained by the Constitution Party to represent their interests, but I’ll take this one pro bono and advise them to plead “no contest” to the charges levied against them.

The problem with all of these constitutionalists, argues Mr. Sale, is that they don’t understand that this “bloated, overstretched, intrusive, and unwieldy government” is exactly what the Founders had in mind when they created a powerful central government. Such usurpations, he insists, are “inherent in its [the Constitution’s] original provisions.” In his words, “we have a big overgrown government because that’s what the Founding Fathers founded….”

Before my ultimate rebuttal, I will allow Mr. Sale to present his final few pieces of evidence of the “true” purpose behind the government formed by the “renegade Congress” that met “in secret.” If it please the Court.

Turn your attention, Mr. Sale demands, to the phrase “right there at the start” of the Preamble to the Constitution. “We, the People,” it reads, formed this government. If the “amorphous ‘people’” control the government, warns Mr. Sale (from behind the skirts of the noble Patrick Henry), then they could “willy-nilly ignore the individual states” and thus obliterate all vestiges of the sovereignty of the several states.

There are two problems with this interpretation. First, there is the problem of context and second, there is the problem of comprehension.

Simply reading the rest of the paragraph would solve the first weakness in Mr. Sale’s analysis of the Preamble. The sentence he quotes does indeed recognize the natural sovereignty of the people (an unassailable principle of republicanism); however, it continues by recognizing the pre-existing sovereignty of another entity — the states. In fuller context, the Preamble states, “We, the People, of the United States of America….” Therefore, the Founders memorialized their correct understanding of self-government: that is, that we, the people, are the ultimate sovereigns (so endowed by our Creator), but we have established intermediaries (the states) and these too are to be represented in the new government.

As for Mr. Sale’s conclusion that “ ‘the people’ spoke through Congress,” he is partially correct. The people do speak through Congress by way of the popular election of members of the House of Representatives. Perhaps Mr. Sale is unaware that the legislative branch as established by the conspiring Founders is bicameral. The other house of Congress, the Senate, as originally constituted, was the branch wherein the interests of the states were to be protected. The fact that the 17th Amendment destroyed this defense against the unchecked growth of the central authority is a crime of which others are to be accused, not the Founders. In fact, to blame the Founders for the lack of state representation in Congress is akin to blaming homebuilders for the damage later caused by termites.

In several of the letters collected in the volume that has come to be known as The Federalist Papers, no lesser lights that James Madison, Alexander Hamilton, and John Jay argued vigorously for the Constitution’s model of federal arrangement. Please read Federalist 9, 10, 45, 51, and 62 for a primer on this subject. As coroners examining the lifeless bodies of the dead republics of history, the Founders sought an inoculation for the fatal malady that affected all self-governing nations that came before. The cure they devised was federalism: co-equal and co-existent sovereignties, each with separate spheres of power. As for the particular ratio of the ingredients in this tonic, Madison wrote in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” No further questions, Your Honor.

Finally, in his accusation that the Founders’ insidious purpose to “abolish and annihilate all State governments” is revealed by the havoc that has been wreaked by the so-called Commerce Clause and General Welfare Clause, Mr. Sale is again seeking indictment of the innocent for a crime they did not commit.

As with his earlier assertions, here too, Mr. Sale mistakes the intent of the Founders for the intent of subsequent usurpers sitting as justices of the Supreme Court. It was not in Philadelphia that the crime Mr. Sale is prosecuting was committed. It was in Washington, D.C. at the dawn of the Progressive Era that the Supreme Court destroyed the foundational doctrine of enumerated powers. Then, about a year later, it split the Bill of Rights into two separate and unequal parts: those rights that it deemed fundamental and those that are not so protected.

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In the first case, the Court created from whole cloth a new General Welfare clause with not a single thread from the one woven by the Founders remaining in the new garment. In the next case, the Court converted the Commerce Clause from a shield against governmental overreaching into a powerful weapon of legislative tyranny. There is no basis in natural or constitutional law for this judicial gerrymandering.

So, ladies and gentlemen of the jury, I leave the case in your capable hands. You are called to decide whether, as Mr. Sale avers, the Framers were “centralists” and “nationalists” who all along, despite their own words to the contrary, secretly intended to establish in the original Constitution a federal leviathan capable of and committed to abolishing state sovereignty — or, as I have herein demonstrated, that as with the wheat field in the parable spoken by our Lord, while we slept an enemy (in this case, the Supreme Court and a combining cabal of legislative and executive despots) has unlawfully trespassed and cruelly sown tares into the fruitful plot planted long ago by our noble Founding Fathers.

Thank you.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author

The following is based off a speech given at Nullify Now! Orlando on 10-10-10

Isn’t it incredible that, despite all the historical evidence to the contrary, that anyone can still believe that the founders would’ve fought a long, cruel, bloody war just to exchange one central, overpowering government for another? And yet, these guys sitting on the courts want to define the limits of our freedom for the extension of greater government control. That is not the founders’ legacy. That’s not why we’re here today.

For these out of touch elitists, the Bill of Rights is just a historical curiosity – it’s quaint and doesn’t mean anything. But we know that the Bill of Rights is the very essence of state sovereignty. That’s why it was created, and that wasn’t lost on the founders.

In fact, at the North Carolina ratifying convention Samuel Spencer said, “It appears to me that the state governments are not sufficiently secured and that they may be swallowed up by the great mass of powers given to congress.” Was that prophetic? Just look what we have today…

Oliver Ellsworth from Connecticut said, “The United States are sovereign on their side of the line of divided jurisdictions, the states on the other. Each ought to have the power to defend their respective jurisdictions.”

Another of our Yankee brethren, Mr Williams says “Are not the terms common defense and general welfare indefinite and undefinable terms? What checks have the state governments against such encroachments?” And that’s the questions we’re facing again today – what checks do the states have against such encroachments? The encroachments are out there, and they’re in our face every day. From Real ID to national health care and everything in between.

Clearly, the 10th Amendment was never intended to be a throwaway or a quaint relic. Its necessity in creation was brought about by clear and deliberate decision – by people who stingily delegated their sovereign authority to this limited powers agent they were creating. In our work here today, we’re dedicated to the repeal or nullification of all unconstitutional legislation that has been illegally imposed upon us by the general government.

All of us need to work together so we can implement simple steps of diligence. These should include, but not be limited to the promotion of state sovereignty legislation, including the nullification of unlawful general government acts. And when we talk about legislation to push back, we need to go further than just saying that we won’t participate. We need to say, “when you send your federal agents here to try and overturn sovereign state law, our constitutional sheriffs are going to put them in jail – and you can come pay their fine to get ‘em out!”

At the end of the revolution, the states were 13 free and independent countries. They created a limited powers government to handle things they felt could be better done at a central location. But never in anything I can read was there a desire to be anything but free and independent states. We’re members of a voluntary compact – not slaves to a federal leviathan.

In our states today, both sovereignty and solvency are in peril. Sovereignty’s betrayal for solvency’s temporary relief is always on the table between D.C. and our state capitols. It’s you and me, and the rest of us that have to be the obstacle to that short sale of freedom. If we don’t do it, who will? If not today, when?

Using fair but firm insistence and pressure, we must remind our states of the 10th Amendment decision we require of them. For every unlawful general government imposition, a home country interposition – we are not going to be slaves to illegal legislation. It is up to us to remind our states of Madison’s warning that encroachments by the central government must “excite the legislatures to watchfulness and impose upon them the strongest obligation and that is to preserve unimpaired the line of partition.” That line is blurred, and hardly exists anymore.

So today, let’s make up our minds – no longer are we going to accept grassroots buzzwords from politicians in place of results. Starting today, let us be real clear to those politicians – we will no longer accept general government theft of our liberties. No longer will we stand by idly while our pockets are picked by political parties to fund the perpetual welfare-warfare state. No longer will we tolerate a vast nationalist state that has become aggressive abroad and despotic at home, and has decided that the limits of its own power is no limit at all.

Here today, we’re contemporary tenthers – we stand in the shadow of those original tenthers like Richard Henry Lee, George Mason, Elbridge Gerry, James Monroe and Thomas Jefferson – and we stand in good company. If they were here, would they ask us, “what have you done with your inheritance?” It’s up to us today to answer that by humbly accepting that responsibility to restore sovereignty, restore the founders’ federalism, and above all, to be free once again.

Andrew Nappi [send him email] is the State Chapter Coordinator for the Florida Tenth Amendment Center.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

[This article was excerpted from chapter 3 of Reassessing the Presidency, edited by John V. Denson.]

When Jefferson ran for president in 1800, he made it clear that he supported strict construction, original intent jurisprudence, federalism, and states’ rights:

I do then, with sincere zeal, wish an inviolable preservation of our present federal Constitution, according to the true sense in which it was adopted by the States. … I am for preserving to the States the powers not yielded by them to the Union, and to the legislature of the Union its constitutional share in the division of powers; and I am not for transferring all the powers of the States to the General Government, and all those of that government to the executive branch.

He confessed to his friend and political ally from Connecticut, Gideon Granger, that he was sincerely

attached to the preservation of the federal Constitution according to its obvious principles, and those on which it was known to be received; attached equally to the preservation to the States of those rights unquestionably remaining with them.

He warned his friend that “our country is too large to have all its affairs directed by a single government” and if ever the powers of the state governments should become concentrated in the general government “it would become the most corrupt government on the earth.

In his first annual message to Congress, Jefferson charged that

this government is charged with the external and mutual relations only of these states; [and] that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns.

He promised that his consistent objective as president would be “to preserve the general and State governments in their constitutional form and equilibrium.”

When the Federalists began to develop their theory of federal judicial review in the aftermath of their crushing political defeat in 1800, Jefferson quickly denounced it as unrepublican and contrary to the intent of the framers and the state ratifying conventions. Jefferson argued that such a power would violate the separation of powers and make the least republican of the three branches of government the most powerful, thus striking a blow against “the vital principle of republics,” which was “absolute acquiescence in the decisions of the majority” on all matters entrusted to them by the Constitution.

Chief Justice John Marshall asserted in his Marbury decision that the federal courts had the final right to decide questions of disputed constitutionality and the authority to set aside federal laws which they thought contrary to the Constitution.

Jefferson argued that an alternative doctrine, concurrent review, was closer to the intentions of the framers and the ratifying conventions. According to Jefferson, each branch of the federal government, plus the state governments, had the right to interpret the Constitution for itself, and none had the right to bind the others by its decision. Jefferson explained this doctrine in a private letter written while he was president:

The judges, believing the law [the Sedition Act] constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution. But the Executive [Jefferson], believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion [Marshall's] which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch.

Dumas Malone, Jefferson’s biographer, concedes that “jurists of our day” may find Jefferson’s doctrine of constitutional interpretation “vague and remote.” However, he points out that in Jefferson’s

own day … and for some decades thereafter it approximated the actualities of the government situation. … [T]he legislature and the executive continued to determine for themselves whether or not they were acting within the bounds of the Constitution

It must be kept in mind that Marshall and his allies did not formulate their novel doctrine of judicial review to restrain the power of government or to protect the rights of the people, but to protect governmental measures and institutions already enacted by the Federalists and believed to be threatened by the Republicans, such as the Judiciary Acts of 1789 and 1801, the national bank, the navy, and the internal tax system. In other words, for the Federalists, judicial review was a pro-government measure designed to prevent democratic majorities from shrinking the size or reducing the powers of government. The Federalists, after all, were the party of active government and liberal construction of the Constitution.

Two modern constitutional historians have made the case that concurrent review “favors limited government” by making it more difficult for the federal government to embark on a new area of legislation or regulation. While this is true, Jefferson’s primary concern was to prevent the will of the majority from being subverted or thwarted by the federal courts. Under concurrent review, the courts could pronounce a law unconstitutional, but they could not bind the other two branches; they could render an opinion, but they could not enforce it. The president would be free to block the execution of a law whose constitutionality he disputed, or to continue to execute a law even though it had been declared unconstitutional by the courts.

Concurrent review also applied to the several states. Jefferson did not believe that the states were bound to submit in all cases to the Supreme Court, to presidential decree, or even to federal law. As he put it in his draft of the 1798 Kentucky Resolutions,

the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of mode and measure of redress.

Jefferson understood that the true meaning of the supremacy clause was to render the Constitution itself the supreme law of the land; federal law was to be considered supreme and binding on all only when it was consistent with the Constitution. The clause reads:

The Constitution, and the laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.

Although he was himself a nationalist, Henry Adams understood perfectly the issue that was at stake when Jefferson and his party assumed power in 1801: namely, whether the Republican “revolution” would be truly revolutionary. In other words, would they make the kind of fundamental reforms that would last beyond their time in power? Adams wrote:

The essence of Virginia republicanism lay in a single maxim: THE GOVERNMENT SHALL NOT BE THE FINAL JUDGE OF ITS OWN POWERS. The liberties of America, as the Republican party believed, rested in this nutshell; for if the Government, either in its legislative, executive, or judicial departments, or in any combination of them, could define its own powers in the last resort, then its will, and not the letter of the Constitution, was law. To this axiom of republicanism the Federalist Judiciary opposed what amounted to a flat negative. Chief-Justice Marshall and his colleagues meant to interpret the Constitution as seemed to them right, and they admitted no appeal from their decision. … The question how to deal with the Judiciary was, therefore, the only revolutionary issue before the people to be met or abandoned; and if abandoned then, it must be forever. No party could claim the right to ignore its principles at will, or imagine that theories once dropped could be resumed with equal chance of success. If the revolution of 1800 was to endure, it must control the Supreme Court. The object might be reached by constitutional amendment, by impeachment, or by increasing the number of judges.

Just days before Jefferson was to be sworn in as the third president, the lingering Federalist majority passed, and President Adams signed into law, the Judiciary Act of 1801. It reduced the number of Supreme Court justices from six to five (to deprive Jefferson of an early appointment when the next justice retired), abolished the existing federal circuit courts, created six new circuit courts, and divided the latter into 23 districts presided over by 16 new federal circuit judges. These became known as “the midnight judges,” since President Adams appointed Federalists to all the new positions.

The act also added to the number of federal marshals, district attorneys, and law clerks. Most ominously for the Republicans, it vested jurisdiction of all “federal questions” in the circuit courts. A federal question referred to those areas of law over which the Constitution had vested jurisdiction in the Supreme Court and in such inferior courts as Congress might establish. The Constitution defined federal questions as “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made”  The Judiciary Act of 1789, which had established the federal court system, had wisely left the question of federal jurisdiction to the state courts, but it had allowed appeals of state supreme-court decisions to be heard before a federal circuit court. Clearly, the Judiciary Act of 1801 was a last minute effort by the Federalists to erect some kind of judicial barrier against the feared revolutionary measures of the incoming administration.

The creation of patronage positions for Federalist lawyers was an incidental benefit. Jefferson described the new judicial establishment as “a parasitical plant engrafted at the last session on the judiciary body. The Federalists, he wrote,

have retired into the Judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the Treasury; and from that battery all the works of republicanism are to be eaten down and erased.

He regarded the act as a moral nullity, since it was passed by a party that had already been repudiated by the majority and was on the verge of surrendering power. For these reasons, he and his party were determined to repeal it at the earliest opportunity. After taking care of more pressing matters having to do with federal taxation, spending, and debt, the Jeffersonians, in December 1801, turned their attention to repeal. After a long and bitter debate, the Republicans passed the Repeal Act on March 8, 1802. It restored the old judicial system and abolished the new judgeships and federal district attorneys. Henry Adams estimated that the repeal saved $30,000 a year. A month later, the Republicans passed the Judiciary Act of 1802, which restored to six the number of Supreme Court justices, created six circuit courts, and fixed one term annually for the high court.

The question now was what would Jefferson do about the Judiciary Act of 1789, which had created a three-tiered federal judicial structure. The top of the structure was a six-member Supreme Court staffed by a chief justice and five associate justices. The middle tier was made up of three circuit courts to be staffed only twice a year by a district judge and two itinerant Supreme Court justices. On the bottom were district courts presided over by a district judge; each state had one district court, except Virginia and Massachusetts, each of which had two.

Henry Adams described this act as “a triumph of Federalist centralization,” for it

had conferred on the Supreme Court jurisdiction over the final judgment of State courts in cases where the powers of the general government had been “drawn in question” [that is, federal questions] and the decision was unfavorable to them.

As Adams pointed out, defenders of states’ rights feared that this act eventually would “make the state judiciaries inferior courts of the central government,” for

the powers of the general government might be “drawn in question” in many ways and on many occasions … until the national courts should draw to themselves all litigation of importance, leaving the State courts without character or credit.

At the time, Senator Richard Henry Lee of Virginia had proposed creating a single appellate federal supreme court with no other federal courts at all, except for a few admiralty courts. All cases arising under federal jurisdiction would be tried before state courts and only on appeal would they be brought before the supreme court. Other Republicans proposed a larger supreme court that would travel about the country to hear all federal cases. The Federalist-controlled Congress rejected both options and chose the more centralist and elaborate judicial system proposed by Senator Oliver Ellsworth of Connecticut.

Jefferson and the Republicans had two available models with which they could have replaced the Judiciary Act of 1789. Yet they made no effort to repeal it. What is more, with the important exception of trying the remedy of judicial impeachments, they made no effort to enact any other kind of judicial or constitutional reform.

According to Henry Adams, Jefferson’s biggest failure (next to the embargo) was his unwillingness to take advantage of the momentum and prestige of victory and his overwhelming Republican majority in Congress to enact fundamental judicial and constitutional reform. As he correctly points out, “loopholes for the admission of European sovereignty into the citadel of American liberty were seen in 1800 as clearly as [in 1860].” While Adams is in no way sympathetic to Old Republican political and constitutional theories, he is undoubtedly right to point to the significance of Jefferson’s failure to institutionalize his revolution. With the single exception of impeachments, Jefferson did not even try to enact constitutional safeguards against the dangers posed by national centralism and neomercantilism. Why he did not do so remains something of a mystery.

Jefferson was certainly aware of Federalist plans for a more “energetic” government. And he was not ignorant of possible reforms, for a prominent Virginia Republican had proposed a set of them in October 1801. Judge Edmund Pendleton, head of the Virginia Court of Appeals, published an influential article in the Richmond Enquirer entitled “The Danger Not Over.” The article was soon reprinted in the administration newspaper, the Washington National Intelligencer. Pendleton’s article was a classical republican manifesto full of negative references to the dangers posed to American liberty by standing armies, undeclared war, executive influence, government debt, excessive civil offices, legislative corruption, judicial irresponsibility, and consolidated central power.

Pendleton warned that Americans should not be complacent simply because faithful Republicans were now holding the reigns of power, for men were “fallible,” new men of uncertain principles inevitably would succeed them, and experience had already shown that “much mischief may be done under an unwise administration, and that even the most valuable parts of the Constitution, may be evaded or violated.” As a result, he urged them to take advantage of the opportunity provided by the temporary overthrow of Federalist men and principles “to erect new barriers against folly, fraud and ambition; and to explain such parts of the Constitution, as have been already, or may be interpreted contrary to the intention of those who adopted it.”

Pendleton suggested the following constitutional amendments to correct several notable “defects” in the Constitution. As he believed the presidency was too powerful, he proposed that the president be ineligible for a second term, and his power of appointing federal judges and ambassadors be transferred to the House of Representatives. He also believed the federal Senate was too powerful, and he recommended either shortening senators’ terms of service or making them removable by the state legislatures, and depriving them of their “executive” powers (the power to ratify treaties and confirm appointments), which presumably would be transferred to the House.

Pendleton saw a defect in the irresponsibility of the federal judiciary. He proposed that by a concurring vote of both houses, Congress could remove federal judges and Supreme Court justices from office. He believed there to be a lack of restrictions on the power of the federal government to borrow money and go into debt. Pendleton suggested “some check” on this power, although he did not specify what kind.

He was also worried about the lack of precision in certain areas and the existence of some general phrases in the Constitution that provided opportunities for mischievous constructions. He recommended “defining prohibited powers so explicitly, as to defy the wiles of construction.” He recommended that the Constitution should state explicitly that the common law of England was not a part of the law of the United States, and that the crime of treason was “confined to the cases stated in the Constitution” and could not be extended further by law or construction.

He also believed that there existed too much uncertainty about the exact boundaries between the federal and state spheres of authority. Therefore, he suggested that “the distinct powers of the General and State Governments” should be “marked out with more precision.” He closed his article by quoting from an unnamed classical-republican author who had observed “that of men advanced to power, more are inclined to destroy liberty, than to defend it.” He urged them not to let this propitious opportunity be lost before forming “new barriers to counteract recent encroachments on their rights.”

Adams himself wondered why Jefferson never pushed for an amendment to excise “certain phrases in the Constitution [which] had been shown by experience to be full of perils, and were so well-established by precedent in their dangerous meaning,” such as the necessary and proper clause. He wondered why Jefferson did not try to limit constitutionally the war- and treaty-making powers “with their undefined and therefore unlimited consequences.” He also asked why Jefferson did not ask Congress “to confirm the action of Virginia and Kentucky by declaring the Alien and Sedition Laws to be unconstitutional and null as legislative precedents.” After all, as Adams points out, John Taylor and other Virginia Republicans at the time thought that Congress should have formally repealed those laws instead of merely allowing them to expire according to statute.

Jefferson also did nothing to erase what has since proved to be the fatal precedent established by Marbury, that the Supreme Court had the authority to strike down a state or federal law whose constitutionality it disputed. Jefferson could have asked Congress for an amendment to reverse Marshall’s opinion in Marbury and formally declare that the Supreme Court did not have the power of judicial review. Jefferson believed that since Marshall’s opinion was issued obiter dictum (an incidental opinion having no bearing on the case in question, and hence not binding) and had no historical precedent, it was therefore null and void. He was right, but that did not prevent future justices from citing it.

Last, Jefferson erred by deciding against pushing for an amendment to authorize the Louisiana Purchase and to answer the questions raised by territorial expansion — namely, which other North American territories could be incorporated in the Union, how could they be incorporated lawfully, what powers exactly did Congress and the president have over the territories, and what would be the exact procedure for forming new states out of them and admitting them to the Union.

Jefferson also failed to appoint a states’ rights Republican to the Supreme Court who could rival John Marshall in erudition, strength of personality, and determination to uphold a consistent constitutional philosophy. Jefferson had three Supreme Court appointments. He appointed William Johnson of South Carolina in 1804, Henry Brockholst Livingston of New York in 1806, and Thomas Todd of Kentucky in 1807. Although all three were Republicans, none of them consistently upheld the compact theory of the Constitution, or what was then known as the Virginia school of constitutionalism.

Johnson, who was the most republican of the three, cited Marbury as a precedent and concurred in Marshall’s major centralizing opinions (McCulloch v. Maryland; Martin v. Hunter; Gibbons v. Ogden; and Dartmouth College v. Woodward).

Livingston was an even greater disappointment than Johnson. Instead of helping to form a Jeffersonian phalanx on the court, he quickly fell under Marshall’s influence and voted with the nationalist majority on all major cases.

Thomas Todd, whom Jefferson appointed to fill a newly created sixth associate justice position, turned out to be a non-entity, a mere rubber stamp for Marshall and Joseph Story.

Historians have little or nothing to say about Jefferson’s Supreme Court appointments. Neither Henry Adams nor Dumas Malone even discuss them. Yet here was Jefferson’s best chance to counter John Marshall. With three strong Republican appointments, Jefferson could have reduced Marshall’s majority to a bare 4–3 by 1807. With just one more solid appointment in 1811, Jefferson’s hand-picked successor, Madison, could have ended the Marshall Court and begun a Jeffersonian Court with strict constructionist, states’-rights jurists in the majority.

In the meantime, vigorous dissenting opinions issued by Jeffersonian jurists could have weakened the force of Marshall’s opinions and added legitimacy to future reversals. Because Marshall’s most seminal nationalist decisions, apart from Marbury in 1803, came after the War of 1812, Jefferson could have changed the whole course of constitutional history.

Why did Jefferson make such weak appointments? It was not because there were no intellectually formidable jurists committed to states’ rights and strict construction. Actually, there were many available, including two prominent Virginians with whom Jefferson corresponded. Judge Spencer Roane (1762–1822) had been on the Virginia Court of Appeals since 1794 and, after the death of Edmund Pendleton in 1803, became its recognized leader. President-elect Jefferson was apparently considering appointing him to the position of chief justice of the Supreme Court before Adams appointed Marshall just six weeks before he was to leave office. Why Jefferson at the first opportunity did not appoint Roane to the court as a check upon Marshall is not clear.

Another formidable Virginia jurist who shared Jefferson’s constitutional and judicial philosophy was St. George Tucker (1752–1827). Tucker had been a judge of the general court of Virginia for twelve years and a professor of law at the college of William and Mary from 1800–1803, and he was elected to the state court of appeals in 1803 to fill the vacancy created by the death of Pendleton. In the same year, he published a five-volume annotated edition of William Blackstone’s Commentaries of the Laws of England. Tucker suffused his “republicanized” version of Blackstone with the doctrines of states’ rights, strict construction, and the compact theory.

There is no doubt that Roane and Tucker were the intellectual and scholarly equals, and possibly superiors, of Marshall and that they would have challenged his centralizing and nationalistic opinions at every opportunity. If Jefferson had appointed these two men to the court and favored a true Republican, instead of Madison, to be his successor, it is very likely that the Marshall Court would have come to an end in 1811; and historians would now be writing about a Roane or a Tucker Court during the 1810s and 1820s.

Jefferson did try the experiment of whether Congress’s power of impeachment could be used as a means of disciplining or checking the power of federal judges and Supreme Court justices. In February 1803, Jefferson recommended to the House that they consider the impeachment of Federal District Judge John Pickering of New Hampshire. Jefferson charged that Pickering’s habitual drunkenness rendered him unfit to perform his duties and that such dereliction constituted a misdemeanor that was legal grounds for impeachment. On March 3, 1803, the House voted 45–8 to impeach Pickering. A year later, on March 12, 1804, the Senate found Pickering guilty of a misdemeanor and ordered him removed from office.

Jefferson was certainly pleased with Pickering’s impeachment, but it was two other events in the late winter and spring of 1803 that finally motivated him to recommend to his chief supporters in Congress the impeachment of a Supreme Court justice. On February 24, 1803, John Marshall rendered his gratuitous and bold assertion of judicial power in Marbury v. Madison. Jefferson was alarmed and angered by the decision.

Then, on May 2, Associate Justice Samuel Chase of the Supreme Court delivered a political harangue before a grand jury in Baltimore. Chase denounced the Republican’s repeal of the Judiciary Act of 1801, the recent adoption of universal manhood suffrage by the state of Maryland, and “the modern doctrines of our late reformers [the Jeffersonians], that all men in a state of society are entitled to enjoy equal liberty and equal rights.” Chase warned the jury that unless these changes were reversed and the doctrines behind them repudiated, the government would become “a mobocracy … and peace and order, freedom and property, shall be destroyed.”

Jefferson was infuriated. He considered Chase’s comments to be “seditious,” constituting an “official attack on the principles of our Constitution and the proceedings of a State.” Consequently, just ten days later, he wrote a letter urging one of his chief supporters in the House to begin impeachment proceedings against Chase. For Jefferson, the time had arrived to humble the power and pretensions of the Federalist-controlled Supreme Court and at the same time to see if impeachment could function as an effectual legislative check upon the judiciary. On March 12, 1804, the House voted to impeach Chase by a vote of 73–32. The Senate trial would begin a year later. The chief House managers at the Senate trial were John Randolph of Virginia, Joseph Nicholson of Maryland, and George W. Campbell of Tennessee.

Samuel Chase was an arch-Federalist of imperious habits who had allowed his own political partisanship to influence his official duties as an associate justice of the Supreme Court. Chase had favored the government prosecution in his handling of two important sedition trials in Baltimore in 1800; he had left the bench without a quorum in order to campaign for John Adams the same year; he was also given to harassing Republican lawyers and delivering political diatribes while on the bench.

The House managers brought eight articles of impeachment against Chase. The most serious charges were that during the sedition trial of John Fries, Chase had denied the defendant the right to counsel and had treated him in an “arbitrary, oppressive, and unjust” manner; during the libel trial of James Callender, Chase had failed to excuse a prejudiced juror and had refused to hear an important witness for the defense; after a federal grand jury in Newcastle, Delaware, had finished its business, Chase kept it in session and urged it to inspect a local paper for evidence of sedition; and Chase had delivered a political speech before the grand jury in Baltimore.

The chief issue before the Senate was what were the proper grounds for judicial impeachment. The Federalists and some Northern Republicans contended that a justice could be impeached only for actual violations of the law (criminal impeachment). The Southern Republicans, led by John Randolph and William Branch Giles, contended that a justice could be impeached for misconduct, partisanship, and abuses of judicial power (political impeachment). The latter was Jefferson’s opinion.

On March 1, 1805, the Senate began voting on the eight articles of impeachment. In order to convict Chase, two-thirds of the senators present (23 out of 34) would have to vote to convict him on at least one article. The most votes to convict were 19 on article eight and 18 on articles three and four. Chase was acquitted. Although Randolph has often been blamed for botching the trial, the real reason for the failure to convict was that five Northern Republicans and one Southern Republican voted to acquit Chase on all eight articles.

Thus, to Jefferson’s and Randolph’s great disappointment, the issue of whether impeachment could be used to check a politicized and consolidationist judiciary had been settled in the negative. Right after the acquittal, John Randolph introduced a resolution that the House should pass and submit to the states an amendment to the Constitution providing that “the judges of the Supreme and all other courts of the United States shall be removed by the President on the joint address of both houses of Congress.”

Joseph Nicholson of Maryland pushed for an amendment empowering the legislature of any state to recall one of their senators and vacate his seat. The House voted to refer both resolutions to the next Congress. Jefferson gave neither amendment any support.

Writing just two years later during the Burr treason trial, Jefferson admitted to one of his chief supporters in the Senate that “impeachment is a farce which will not be tried again.” He observed with alarm that “one of the great coordinate branches of the government [the judiciary]” had set “itself in opposition to the other two and to the common sense of the nation.” He suggested that if Burr were acquitted due to the obstructions placed in the way of conviction by Chief Justice Marshall, who was presiding over the trial, that the people “will see then and amend the error in our Constitution, which makes any branch independent of the nation.”

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Once again Jefferson did nothing. He even sounded as if the president had no power or influence in proposing a constitutional amendment which would have limited the powers of the federal court and made its justices, as well as other federal judges, removable for misconduct. He had many ways of making such a recommendation: he could have drafted a special message to Congress; he could have included it in his upcoming annual message; and he could have suggested it to his chief supporters in Congress. But he did none of these things.

Jefferson should have known better. He should have realized that political power in a republic is ephemeral and that the temptations to abuse power were so great that future administrations and congresses would be sure to seize the forbidden fruit, which was all the more reason to erect as many dikes and moats and eliminate as many unguarded passages to the throne of arbitrary power as was possible. Years later, when Jefferson himself admitted that the enemy was in the camp, he could not say that he had not been warned; his fellow Virginian Republicans, Edmund Pendleton, John Randolph, and John Taylor, had warned him.

Henry Adams suggested four reasons why Jefferson did not push for constitutional revision and reform. First, Jefferson found some federal powers useful for his policy of territorial expansion, such as the treaty-making power. Second, his majority in the Senate was too small: he needed two-thirds to pass an amendment. Third, he could not count on the support of his Northern political allies. Adams contended that while the “Southern Republicans” were strongly committed to limited government, states’ rights, and strict construction, the “Northern democrats” were more interested in making the federal government responsive to the wishes of the people than in restricting its power. Fourth,

Jefferson wished to overthrow the Federalists and annihilate the last opposition before attempting radical reforms. Confident that States-rights were safe in his hands, he saw no occasion to alarm the people with legislation directed against past rather than future dangers.

Adams was right. Early in his presidency, Jefferson made a fateful decision to safeguard the Republican revolution by political rather than constitutional means. His strategy was to draw away the great body of the Federalist voters, most of whom he believed were republican at heart, from their ambitious and unprincipled leaders. Once that had been done, the republic would be safe and fundamental reforms could be enacted. He admitted to a correspondent very early in his presidency that

some things may perhaps be left undone from motives of compromise for a time, and not to alarm by too sudden reformation, but with a view to be resumed at another time. … What is practicable must often controul [sic] what is pure theory; and the habits of the governed determine in a great degree what is practicable.

In the meantime, he hoped “by degrees to introduce sound principles and make them habitual.” In other words, he feared that radical measures would alarm many moderate Federalists and new Republican voters, thus driving them back into the arms of the Hamiltonians and the High Federalists of New England.

Many of Jefferson’s early policy decisions can be explained only by a desire to placate and win over the bulk of the Federalists to the Republican Party. Why else was he so reluctant to remove any but the most partisan or incompetent Federalists from office? Why did he decide only to reduce, instead of abolish, the navy when the latter had been his initial intention and the fond wish of so many of his southern supporters? Why did he decide to send the fleet to the Mediterranean to fight the pasha of Tripoli when he needed only to sign a new treaty with an increased tribute? After all, Jefferson continued throughout his presidency to pay tribute to the other Barbary powers. Jefferson knew that the navy was popular in the eastern states, the region of his weakest strength, and he knew that most navy officers were Federalists. Why did Jefferson support a compromise settlement for the shameful Yazoo bribery scandal, if not to win over New England Federalists who were personally interested in that sordid financial transaction?

There are numerous references in Jefferson’s letters during the course of his presidency indicating how important it was to him that the Republican majority grow and the Federalist minority shrink. Moreover, there are indications that Jefferson was not simply postponing constitutional reform to a later day when the Republicans were stronger, but that he actually regarded such reforms as secondary in importance to winning over the Federalist minority to republicanism:

[S]hould the whole body of New England continue in opposition to these principles of government, either knowingly or through delusion, our government will be a very uneasy one. It can never be harmonious and solid, while so respectable a portion of its citizens support principles which go directly to change of the federal Constitution, to sink the State governments, consolidate them into one, and to monarchize that.

In other words, Jefferson understood that constitutional prohibitions alone would not deter or prevent a determined faction from subverting a government in which they did not believe. By his policies, Jefferson placed stronger emphasis on restoring harmony and unity to the country and on bringing back the great body of the Federalists to their “ancient principles,” “the principles of ’76,” than he did on constitutional reform. Jefferson simply refused to believe that the majority could not be relied upon to defend the Constitution and the cause of liberty. He was sure that while they might stray from sound principles on occasion they would always return to their senses before it was too late.

Historian Scott Trask is an adjunct scholar of the Mises Institute.

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