“I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.”
–James Madison

James Madison warned often of the encroachments of a central government, and warned that a central or federal government needed to be kept in check by a balance of power. The cornerstone of this balance of power was the will of the people being governed expressed not only in Congress but ultimately through the sovereignty of the individual states.

The federal government has over-reached and encroached on state sovereignty for decades – and under the leadership of both Republicans and Democrats. Each time the federal government has gone unchecked it has become bigger and bolder – and continues to do so with each usurping of power belonging to the states. The passing of Obamacare, just might be the coup de grace, or at least a giant step toward bringing down the republic.

What do I mean by such harsh rhetoric? Consider the Weimar Republic. This is the name of the parliamentary republic established in Germany in 1919. Although it was governed by a constitution, much the same as we are, the republic fell to Adolf Hitler and the Nazi Party in the 1930’s through a usurpation of power. Simply put, it was done by passing legislation that enabled Hitler to circumvent their constitution.

It is noteworthy that one of the first major takeovers by Hitler of the public sector was health care. While it is argued that Obamacare does not constitute a takeover of the health care system, I submit that it is a gradual, insidious usurping of power, the likes of which Madison warned against.

Have you ever played a game in which the rules constantly changed to benefit your competitor? There is absolutely no way to win in such a scenario, and Obamacare is just that. The government regulates the market in which it has become a player. The competitors, the private insurers, cannot possibly compete and will therefore be forced to operate at a loss.

Since no one goes in business to lose money, eventually the private insurers will have no choice but to leave a losing market leaving only the government as the sole insurer of the public. The result will be sky- rocketing health care prices, and ultimately, rationed care – as such a system is too costly to sustain, especially given an already weakened economy.

Ultimately, if we continue on this path of unlimited spending and borrowing, the economy will collapse under the weight of all of the social programs and public health care, the republic as we know it will have gone a fundamental transformation, the likes of which President Obama himself spoke of on the campaign trail.

What can be done to stop it? Madison himself gave us the answer:

“Resolved, That the General Assembly of Virginia, doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic … That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

So likewise did Thomas Jefferson:

“RESOLVED: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.”

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Kelly Galbreath is the State Chapter Coordinator for the Missouri Tenth Amendment Center.

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

In 1798, he secretly co-authored, along with Thomas Jefferson, the Kentucky and Virginia Resolutions to protest the Alien and Sedition Acts. It was these resolutions where the principles of nullification and interposition first gained prominence in the American tradition.

In honor of James Madison’s birthday, March 16, 1751, we are pleased to announce the third installment of our “publications” section. This paper, “From Interposition to Nullification: Peripheries and Center in the Thought of James Madison,” by Kevin R.C. Gutzman, is a fantastic resource for understanding the political thought of Madison, which showed great changes over his career – from nationalism to state sovereignty and back.

It was originally published in the University of Virginia’s Essays in History, vol 26, 1994.

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From Interposition to Nullification: Peripheries and Center in the Thought of James Madison
by Kevin R.C. Gutzman

In 1836, the expiring James Madison offered “Advice to My Country”:

The advice nearest to my heart and deepest in my convictions, is that the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened, and the disguised one as the serpent creeping with deadly wiles into Paradise.

Madison’s concern for the future of the union had been piqued by the Nullification Controversy and the growing appeal of states’ rights.

There is a certain irony in Madison’s worries: the states’ rights strain of Jeffersonianism owed much to the actions and public writings four decades earlier of Madison himself. The story of Madison’s career can be seen as that of a creative politician whose very creativity came, at the end of his life, to threaten his foremost achievement. After his death, his intellectual heirs would rend the union asunder; the doctrine of state sovereignty under the federal constitution, which Madison had helped formulate in response to a perceived threat to republicanism, would be used to truncate the union, the extended sphere Madison had been instrumental in creating and in which he had long lodged his fondest hopes.

James Madison’s thinking about federalism prior to 1800 reflected the relative strengths of the federal and state governments at different times. Consistent theory yielded to political imperative; understanding was altered by perspective and experience. Madison had a consistent vision of the ideal polity, but the events of those years elicited the enunciation of doctrines and the support of constitutional interpretations of which, on sober second thought, he disapproved.

James Madison was integrally involved in the conception, drafting, and passage of the Virginia and Kentucky Resolutions of 1798. Yet, he had emerged from the Philadelphia Convention eleven years earlier convinced that the old British imperium in imperio had been recreated, concerned that the federal government had not been given enough power vis-a-vis the states. To rectify the situation, he had proposed a constitutional amendment making certain basic freedoms enforceable by the federal judiciary against the states.

This apparent inconsistency need not be viewed as a sign of opportunism. The Virginia Plan and the Virginia Resolutions were both devices Madison hoped would preserve the hard-won gains of the Revolution. He did not want mere union, but a certain type of union; he did not want mere federalism, but federalism which would return control of the republic to those who could be trusted to act continentally. In the context of 1787, this desire led to advocacy of firmer union in the Virginia Plan; in that of 1798, to assertion of states’ rights in the Virginia Resolutions.

Thus, Publius could point to the reservation of rights to the states as a positive feature of the proposed federal edifice: while he would have preferred a more centralized union, Madison believed the union in prospect was superior to the Confederation government. As a statesman, improvement was Madison’s goal; as an heir to the thought of St. Augustine, Madison thought that imperfection was to be expected in any human creation; as a practical politician, he adopted popular arguments with which he did not necessarily agree in order to secure his aim.

Madison, like his friend Thomas Jefferson, partook of the ambient partisan excess of the 1790s. Because he tended to see the actions of the Federalist administrations in an extremely negative light, his enunciation of Republican values in the Virginia Resolutions of 1798 and “clarification” in the Report of 1800 were inconsistent with his statements and behavior both before and after the Federalist period. Madison undermined the prospects for long-term durability of his work in the Philadelphia Convention of 1787 by acting as he did in 1798-1800.

It was to the “Principles of ’98″ that James Madison’s successors in leadership of the Southern interest in federal politics turned until, in the 1960s, the South as an insular political entity was eliminated from American life. Despite what Madison said in his later years, the states’ rights tradition was firmly based on his and Jefferson’s writings in 1798.

CLICK HERE TO READ THE FULL PAPER

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776–1840 and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Federal Government vs. American Liberty from World War I to Barack Obama. His upcoming book, James Madison and the Making of America, will be published by St. Martin’s early in 2011.

Walter Kirk Wood, professor of history at Alabama State University and expert on the principle of nullification, explains the history of nullification in the American Constitutional tradition, a federal system as a check on arbitrary, centralized power, Imperium in Imperio and the American colonies, the three prominent nullification movements in early American history, James Madison’s “report of 1800,” Madison as the father of nullification and his notes on the Constitutional Convention, the extended-republic of the anti-federalists, how nullification acts as a check on central power and is inherent in a federal system, how nullification was virtually lost for over a century, its return in recent history, America’s first freedom as freedom from government, and more.

Mentioned in this Show

Nullification: A Constitutional History (vol 1)

Nullification: A Constitutional History (vol 2)

Madison’s Notes On the Constitutional Convention of 1787

Republic of Letters: Jefferson and Madison

Kentucky Resolutions of 1798

Virginia Resolution of 1798

NullificationHistory.com

Current Nullification Efforts

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

In one of his final acts as president, James Madison did something almost unthinkable by modern standards: he vetoed a bill solely on Constitutional grounds.

President Madison agreed that it made sense to use federal funds for the construction or upgrade of vital roadways and canals within the states. But the Internal Improvements bill of 1817 was contradicted by a higher law, namely the absence of a concomitant enumerated power in Article I, Section 8 of the Constitution.

Being among the Framers of our legal system, Madison understood that when two laws clash, the higher one wins out. True to his oath of office, he refused to challenge the Constitution by endorsing an invalid inferior statute.

Seeing this specific issue coming to the fore, Madison had a couple years earlier let Congress know exactly how everyone’s spending wishes could come to pass. He encouraged Congress to fire up the process for amending the Constitution. Given the substantial support that the notion of federal spending on infrastructure enjoyed, it seems likely that the states would have been willing to delegate such power to the federal government, if asked. Congress instead tried the easy route, in the vain hope that Madison was bluffing.

In the almost two hundred years since Madison’s veto, the federal government’s spending authority has still not been officially augmented. But that has not prevented our national leaders from establishing a fantastic variety of new spending programs. Politicians of every supposed political stripe (including many who ostensibly repudiate “big government”) have come to accept federal omnipotence as a given.

Those who still give lip service to the Constitution as law (as opposed to some sort of “guiding document”) justify spending as they please through spontaneous discovery of the Constitution’s “living, breathing” nature, a catch-all interpretation of the general Welfare clause, or the favoring of novel semantic construction over plain-English intent. They have appointed a complicit judiciary to provide cover.

In its end-run around federal limitations, the establishment was skillfully guided by America’s ‘progressive’ intelligentsia. Leftist academics, specifically, provided the philosophical undergirding of expansionist policy.

Of course, systematic misinterpretation of the Constitution was not the only possible route to a dominant federal government. Instead of pushing shortcuts, principled progressives could have advocated that federal prerogative to new powers be secured by Constitutional amendment prior to legislative actualization, in sync with Madison’s exhortation to Congress.

Over time, the states might well have become willing to formally turn over all sorts of responsibilities to the federal government. With every war it won, and with every year it persisted as other governments around the world fell to revolution, the US government appeared to be more competent and stable, worthy of taking on new roles. Had the left pursued a measured, truly Constitutional path to federal expansion, we might today be like the countries of Western Europe, with a centrally-managed welfare state that is completely legal.

But, on the face of it, we cannot expect progressives to be overly-sensitive to the charge that, because they declined to play by the rules, their whole racket is illegitimate. After all, they got their way, and they and their fellow spendthrifts are more or less in charge at every level of government. Why should they regret having bypassed the burdensome formality of the amendment process?

There is actually a very good reason. Given its history, how seriously can the modern left expect to be taken when, for example, it decries DEA raids on California medical marijuana clinics, on the grounds that the clinics comport with state law? Appeal to federalism is, by right of equity, no longer available to the left. As a matter of fact, every time Congress tries to reverse state measures on assisted suicide, or to regulate marriage, the left itself must share the blame.

Through their demonstrated willingness to cut corners, progressives have also hobbled their advocacy for the preservation of the civil liberties enshrined in the Bill of Rights. The futile cries from the left that the Bush Administration “shredded the Constitution” through its eavesdropping and detention policies were, on one level, quite galling.

Having worked so diligently to debase the structure set up by the opening articles of the Constitution, progressives hardly have purchase to claim offense when that document’s first ten amendments are disrespected. The Constitution is not an à la carte menu.

The mainstream right has, of course, had its own problems with consistent, objective respect for the rule of law. For example, those whose evaluation of War on Terror policies begins and ends with “Bush kept us safe” should consider that, but for lingering respect for the Second Amendment, private gun ownership would likely be a thing of the past. But the right’s misdeeds are beyond the specific scope of this article.

Even if today’s progressives come to fully comprehend the destructiveness of past political mistakes, it is far too late for them to set things right. They are by now completely invested in the legislative fraud through which the institutions of unlimited federal government were created and nurtured.

But the very fact that these institutions stand on such shaky legal ground could be the germ of their eventual demise. If and when we start actually obeying the rules, then higher Constitutional law will automatically trump the statutory law upon which the federal behemoth depends. Fiscal liberalism will be immediately out of business. So we should in this sense be grateful for the left’s procedural delinquency.

Once upon a time, progressives had an opportunity to do their thing, by the book. But they blew their chance.

Michael Cummins is the Clark County, Washington, coordinator for Campaign for Liberty. He is also an operations specialist in the telecommunications industry and a part-time musician.

Copyright © 2009 Campaign for Liberty, published with permission.

RESOLVED by the House of Delegates, That the Congress of the United States be urged to honor state sovereignty under the Tenth Amendment of the Constitution of the United States. The Commonwealth of Virginia hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States. The Commonwealth by this resolution serves notice to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers. Further, the Commonwealth urges that all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding shall be prohibited or repealed.

For those history buffs out there, Virginia (along with Kentucky) was at the forefront in asserting the principles of State Sovereignty and limited government in the early days of the Republic. The Virginia Resolution of 1798, authored by James Madison in collaboration with Thomas Jefferson, took what some consider to be the strongest position on this issue in our history.

Here’s an excerpt:

[RESOLVED] That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Read the rest of the Virginia Resolution of 1798 here.

Here’s the full text of the modern-day Virginia Resolution:

HOUSE RESOLUTION NO. 61 Offered February 26, 2009 Honoring state sovereignty under the Tenth Amendment of the Constitution of the United States.

———-Patrons– Peace, Fralin, Byron, Cline, Cole, Gilbert, Landes, Lingamfelter, Marshall, R.G., Morgan, Ware, R.L. and Wright

———- Referred to Committee on Rules ———-WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”; and

WHEREAS, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

WHEREAS, the states today are demonstrably treated as agents of the federal government; and

WHEREAS, many federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States; and

WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state of the United States, now have, and have always had, rights the federal government may not usurp; and

WHEREAS, Article IV, Section 4 says that “The United States shall guarantee to every state in this Union a Republican form of government,” and the Ninth Amendment states that ”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and

WHEREAS, the United States Supreme Court has ruled in New York v. United States, 505 U. S. 144 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

WHEREAS, a number of proposals from previous administrations, and other proposals that may be anticipated, may further violate the Constitution of the United States; now, therefore, be it

RESOLVED by the House of Delegates, That the Congress of the United States be urged to honor state sovereignty under the Tenth Amendment of the Constitution of the United States. The Commonwealth of Virginia hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States. The Commonwealth by this resolution serves notice to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers. Further, the Commonwealth urges that all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding shall be prohibited or repealed.

The dedication of Restoring the Lost Constitution, “To James Madison and Lysander Spooner,” at once alerts us that we confront an unusual book. During the Constitutional Convention, Madison supported a strong national government; Spooner, by contrast, subjected to withering criticism the notion that the people of the United States had consented to the Constitution. Whom does Barnett support? The Father of the Constitution or the author of The Constitution of No Authority?

Barnett soon makes clear his response. He finds convincing Spooner’s assault on consent theories of political obligation. But this does not lead him to question the need for a state. Quite the contrary, he aims to extricate government from Spooner’s challenge: since consent does not underlie our obligation to obey the state, Barnett must locate something better that will do the job.

More specifically, why does the government established by the Constitution bind those subject to its jurisdiction? After usefully pointing out that, for the most part, the Constitution “purports to bind government officials, not private individuals,” Barnett poses his fundamental question: “The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name. Does the fact that a ‘law’ is validly enacted according to the Constitution mean that it binds one in conscience? In other words, is one morally obligated to obey any law that is enacted according to constitutional procedures” (p. 12)?

Barnett does not leave his readers long in suspense: his answer is that, under the right conditions, people are indeed obligated to obey the law. So long as the government enacts laws that are “both necessary to protect the rights of others and proper insofar as they do not violate the rights of the persons whose freedom they restrict,” people under the government’s jurisdiction have a duty of obedience (p. 45). Barnett understands rights in a way libertarians will find congenial. Rights are negative: they forbid others from interfering with our life, liberty, and property. Barnett resolutely rejects positive rights, such as an alleged right to welfare. He holds that the Constitution, if interpreted according to its original public meaning, established a government based on adherence to rights in the proper sense. Hence, so long as the government follows the Constitution, it should be obeyed.

In like fashion, I shall not leave my readers in suspense. Although the book contains much of value, Barnett’s entire project seems to me fundamentally misconceived. Suppose the government establishes a legal system, including courts and police, in order to deter violations of rights and to respond to rights violations when these occur. Let us assume further that the rights protected meet the libertarian standards that Barnett wants. Why are people under any moral duty to cooperate with such a legal system? If, e.g., the government prescribes that people pay taxes so that the system can operate, must they obey? Must they refrain from establishing competing legal systems that endeavor to compete with the government?

Individuals in their private capacities, it seems clear, stand under no parallel restraints. If someone opens a pizza parlor, in a way that violates no one’s rights, you are under no duty to cooperate with him by, say, patronizing his restaurant rather than a competitor’s. You are free to try to drive him out of business, if you can do so in a way that respects his rights.

Why are matters any different for the government? If, as Frédéric Bastiat argued in his great pamphlet The Law, the state acquires no rights that individuals do not themselves possess, where does the duty to obey the law enter the scene? How can there be a duty to obey the state if there is no duty to obey the owner of the corner grocery store? True enough, if the government is in legitimate pursuit of a criminal, we should not interfere; but why describe this obligation as a duty to obey?

Barnett might respond that I have ignored a key aspect of his proposal. Laws, to generate an obligation to obey, must not violate anyone’s rights. If so, is it not open to Barnett to say that I have raised a false alarm? Why suppose that he would allow taxes as legitimate or require obedience to laws that establish a government as a monopoly agency?

But if he takes this line, he has not established the legitimacy of a government at all. It is in any case hardly likely that Barnett will take our proffered escape. The sum and substance of his book is an attempt to justify the government established by the Constitution, and this document grants the government the power to tax, among many other powers not legitimate if exercised by private individuals.

Barnett’s proposal seems vulnerable on another count. He wishes to establish a duty to obey the law, but he never shows why it is desirable that people have such an obligation. (I do not think he would say that it’s too bad we have the obligation, but we are stuck with it.) He seems to have “bought into” this task, a longstanding project pursued by such eminent legal philosophers as H.L.A. Hart and Lon Fuller, his own revered teacher, without question. Given the manifold invidious activities of contemporary governments, our own not least among them, finding grounds for obedience to government does not strike one as an imperative necessity. And if Barnett reiterates in reply that he has in mind only a duty to obey legitimate government, he still needs to show what, other than fashion in law schools, makes this a good thing.

Barnett is much more successful when he follows in Spooner’s spirit. He raises a penetrating objection to tacit consent theories of political obligation. To those who allege that residents of a country consent to its laws by failing to leave, a response lies ready to hand, as Hume long ago pointed out. In many cases, it would be very difficult, if not impossible, for people to depart, especially if they wish to go to a place where they can avoid political obligations. How then can such constrained “consent” be held to generate an obligation to obey?

Barnett raises a deeper objection. “For remaining in this country tacitly indicates consent only if you assume that the lawmakers have the initial authority to demand your obedience or your exit in the first place. But it is their authority that is supposed to be justified on the basis of your and my tacit consent. So the problem with inferring consent from a refusal to leave the country is that it presupposes that those who demand you leave already have authority over you” (p. 18).

I fear that I have given a lopsided picture of Restoring the Lost Constitution. I have so far devoted my entire attention to Barnett’s generally wrongheaded remarks on political obligation. He devotes the bulk of the book, however, to a detailed analysis of the Constitution, in order to show that it can be interpreted to mandate the limited government he thinks justifiable. Here he includes much of value, including detailed accounts of the meaning of “necessary” powers and the scope of the power to regulate interstate commerce.

His discussion of judicial review makes a valuable distinction. Judicial nullification, the power of the courts to declare a law unconstitutional, does not imply that a court, even the Supreme Court, can order the other branches of government to conform to its view of the law. “Just as the power to negate legislation does not imply the power to enact it, neither does it imply a power to mandate that the executive branch exercise its powers in a particular mode” (p. 144). The modern view that the Supreme Court is the final authority, to which every knee must bow, on all questions constitutional is alien to the Constitution’s original intent. Barnett’s case is well made, though I wish he had devoted attention to the arguments against judicial review in that neglected classic, L. Brent Bozell’s The Warren Revolution (New York, 1966).

Barnett’s defense of original intent and negative rights deserves much praise, but in one area I think his discussion goes badly astray. Barnett is concerned not only to defend the original meaning of the Constitution against those who conjure up all manner of positive rights, allegedly found in that document’s “penumbras” and “emanations.” He also defends an expansive view of the Fourteenth Amendment.

As he sees matters, the Amendment overturns the former sovereignty of the states and subjects them to strict federal authority, should they interfere with the “privileges or immunities” of their citizens. “Owing to the Fourteenth Amendment . . . state governments no longer can claim a plenary power to restrict the liberties of the people subject only to their constitutions and any express restrictions in the original Constitution. Rather, any state abridgment of the privileges or immunities should be subject to challenge in federal court” (p. 321).

At first sight, this seems perfectly in order. Surely it is wrong for the states to interfere with rights, so long as these are construed in a libertarian way; and if the federal courts confine themselves to enforcing such rights, who can reasonably object?

But to argue in this way is to neglect the federal structure of government, present both in the Constitution and the Articles of Confederation. Fundamental to both the proponents of the Constitution and their Anti-Federalist opponents was a deep-seated distrust of centralized government. The national government was no more than an alliance of states, its powers confined to strictly delimited purposes. True enough, the states were free, so far as the Constitution was concerned, to violate civil liberties: the Bill of Rights limited only the national government. But a loose association of states would better protect rights than a strong central government, however libertarian it might profess to be.

Such, at any rate, is the theory of the Constitution; and the gross violations of rights that have taken place ever since Lincoln’s dictatorial regime show that compelling the states to submit to a federal Leviathan is not the path to liberty.

Barnett is blind to the virtues of federalism. He displays little sense of the importance of the Tenth Amendment in preserving liberty; instead, the “public meaning” of the Fourteenth Amendment, ratified under questionable circumstances, is treated as if it were on a par with the original intent of the Constitution’s Framers. Further, even on its own terms Barnett’s discussion of the Amendment is incomplete. He takes a very broad view of the aims of the Amendment, and the new powers accordingly conferred on the central government. He takes no account of critics of this interpretation, who claim that the authors of the Amendment had much more limited ends in view. Raoul Berger and M.E. Bradford might never have written on the Amendment, so far as our author is concerned.

David Gordon, senior fellow of the Mises Institute, is editor of the quarterly Mises Review.