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 framers of the Constitution attempted to balance the power of the President as commander-in-chief with that of Congress, the representatives of the People. Article II, Section 2 of the Constitution gives to the Executive Branch the command of the nation’s armed forces, while Article I, Section 8 gives to the Legislative Branch the power to decide when the United States goes to war. They weighed the individual will of the Executive against the deliberative function of the Legislature, whose constituents would bear the full costs of any war.

Thus, the framers deliberately separated the powers of declaring and waging war; they confined these powers in such a way so as to thwart the tyranny of kings. Despite being known as one of the greatest champions of centralized power of the times, even Alexander Hamilton felt that the President must generally bow to Congressional directions in times of peace and also in times of war. He stated this clearly in Federalist #69:

“The President is to be commander-in-chief of the army and navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces.; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies – all which, by the Constitution under consideration, would appertain to the legislature.”

Our nation’s founders were far from perfect, and at times, inconsistent and unjust; but, on the powers of war, they were unwavering, and their principles were sound. Therefore, we must also consider the following statements:

“The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.”
- James Madison

“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.”
- James Wilson

“Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.”
- Thomas Jefferson

“The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature”
- James Madison

The founders were absolutely clear in their demand that the country would only go to war upon the collective decision of the representatives of the People. Additionally, a primary reason for creating a system of representation was due to exigencies of the day that made it impossible for the People to meet and decide their fate in person. Thus, the true reason for entrusting the Legislature with the power to declare war was to ensure that the People would be involved in the decision as much as was physically possible.

What the Framers did not imagine was a weak and ineffectual Congress that failed to claim its rightful authority in deciding when the nation would go to war, or a power-hungry President that wouldn’t refuse an extra-constitutional transfer of such power from Congress.

The typical statist response to this argument is to claim that previous Presidents have sent troops into battle “hundreds of times” without a Congressional declaration of war. Thus, the favorite Presidential excuse for claiming the right to initiate war unilaterally is nothing more than the reasoning of a child: Everybody does it.

But, the Constitution remains valid even after Presidents violate it.

We must hold that thought; a transfer of power is a violation of the Constitution by both the President, who accepts the transfer, as well as those in Congress who vote to delegate their Constitutionally-mandated responsibility to another branch. In recent decades, such transfers have ultimately been no more than a blank check for the President.

It has been known throughout history that kings, dictators, and the executive branch of governments are always overly eager to go to war. This is precisely why our founders tried desperately to keep decisions about going to war in the hands of the Legislature, and close to the People. Unfortunately this process has failed us for decades.

Therefore, one obvious reason for dividing the war powers was to prevent such dictatorial powers from being placed in the hands of one person, the President. The framers understood that, throughout history, rulers of nations worldwide had begun wars strictly on the basis of international politics or personal desires.

They clearly understood that rulers would often get the urge to remove foreign public officials, or dictate the policies of foreign nations, and that such urges are dangerous to liberty, no matter what the reason. Sometimes they would do this by sending money to opposing groups with taxpayer money, and sometimes they would do so by assassination or coup.

But, history has proven to us that when all else fails, such despotic leaders will ultimately resort to invasion; as President Bush and his son did with Iraq; as Presidents Kennedy and Johnson did with Vietnam; as President Clinton did with Yugoslavia; as President Truman did with Korea; and as other Presidents did with less fanfare but similar vigor.

Another reason for entrusting the Congress with the power to declare war was in the hope that this would ensure, as much as possible, that a war was justified. Thus, the idea was that if a President desired to send the nation into war, an appeal to the People, through their representatives, would be required to convince them of the justification for war. Although our experience has shown that they failed, the framers desperately tried to minimize the potential for political entanglements in foreign affairs by dividing the war powers between the President and the Congress.

Why was all this so important to the framers? Because they wisely feared dictatorial powers; even in the hands of an elected leader. They also recognized that, of all potential enemies to liberty, war is the worst because it provides the greatest opportunity for the government to infringe on our rights! As James Madison suggested:

“Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.”

We must now recognize that the millions of dead in Korea and Vietnam, as well as the current quagmires in Iraq and Afghanistan, all result from the same defective policy of ignoring our laws as codified in the Constitution; all result from the same faulty foreign policy of American interventionism that our government has pursued for more than a century. It would be overly simplistic, and completely erroneous, to say that the current administration is alone responsible for such actions and our current wars. This is an endemic problem in our system of governance that crosses party lines, and has infected nearly every person who is involved in the administration of our government’s foreign policy.

By rejecting the advice and the rules laid down by the founders and early Presidents, our recent leaders have gone so far astray from warnings against entangling alliances, that the founders would hardly recognize the government they created. Policing the world and “spreading democracy” is not our calling. Additionally, no such action is permitted by the Constitution.

These concepts are the key to solving our problems. If we don’t want our delegated rulers to violate the contract they have sworn to uphold; if we don’t want blank checks drawn indefinitely on the public liberty and on civil society, we must strive to have our politicians follow the law that governs the government – the Constitution.

“Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose; and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, ‘I see no probability of the British invading us’ but he will say to you, ‘be silent; I see it, if you don’t.’”
- Abraham Lincoln