To the casual eye, Kevin Gutzman has written a scholarly book about Virginian political thought and practice from revolutionary times through 1840. But its scholarly merits do not exhaust the merits of Virginia’s American Revolution: From Dominion to Republic, 1776-1840. Readers are also treated to the incidental pleasure of watching the Straussian rendering of American history dismantled piece by piece.

As that version would have it, the United States was formed by a single American people in the aggregate and is not and never was a compact among sovereign states. The states are necessarily subordinate in their relationship with the federal government, never having enjoyed independent existences of their own. They possess no corporate mechanism by which to resist federal usurpation, and they are bound to accept the federal government’s monopoly on constitutional interpretation.

Gutzman begins his story in the 1760s, as the controversy with the mother country is growing more and more intense. Richard Bland, who served in the House of Burgesses, began his 1766 pamphlet An Inquiry into the Rights of the British Colonies by revisiting his colony’s early history. In coming to these shores, he said, Virginia’s settlers had availed themselves of the natural right to emigrate. They had come to a new land at their own expense, and were no longer subject to English law, having fallen under the “Law of Nature” instead.

That meant Virginians had been in a position to enter, of their own free will, into a mutually binding relationship with the Crown, which they subsequently did. They expected future kings to abide by James I’s promise that Virginia’s form of government would never be altered. Virginia could be taxed only by its representatives, and possessed “such Freedoms and Privileges as belong to the Free People of England.” The Crown had repeated this guarantee numerous times, said Bland, in its commissions to Virginia’s royal governors.

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Thomas Jefferson lent his own support to this narrative in his Summary View of the Rights of British America, but as Gutzman observes, there is “virtually nothing in Jefferson’s Summary View that Mason, Bland, Carter, or the Burgesses had not said before.”

The preamble to Virginia’s republican constitution of 1776 spelled out Virginia’s understanding of its legal status before the world, as it had been explicated by Bland and Jefferson. Virginia had the exclusive authority to govern for Virginia. The king, meanwhile, had unjustly refused to accept a position as head of a great commonwealth of dominions tied together by a common loyalty to his dynasty.

The grievances listed in the preamble revolve almost entirely around the issue of self-government – economics barely appears; religion, not at all. That self-government was later reaffirmed in the Articles of Confederation, Article II of which described the states as having maintained their “sovereignty, freedom, and independence.” Virginians were persuaded to adopt the federal Constitution in 1788 on the grounds that that sovereignty would hardly be affected by the proposed confederation.

With all the emphasis that is normally placed on the Constitution’s Framers, we are apt to neglect the importance of the ratifiers, for it is they whose interpretation of the Constitution – and in particular, the precise nature of what they believed they were getting into – is of ultimate importance. And here is the heart of Gutzman’s argument.

At Virginia’s ratifying convention, the concern was raised that phrases like “general welfare” could be cited by ambitious politicians who wanted to exercise powers beyond those outlined in Article I, Section 8 of the Constitution. Federalist Edmund Randolph, who had been Virginia’s attorney general for the past decade, assured everyone that his fears were unfounded, for all rights were declared in the Constitution to be “completely vested in the people, unless expressly given away. Can there be a more pointed or positive reservation?”

In other words, this was a strictly limited and federal government.

George Nicholas, who would become Kentucky’s first attorney general, explained:

If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted – I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.

Randolph and Nicholas belonged to the five-man committee that was to draw up Virginia’s ratification instrument. They were in a unique position to articulate the understanding that would govern Virginia’s ratification.

Virginians kept this limited view of the Constitution and the federal Union very much in mind into the 1790s. Disturbed by Alexander Hamilton’s financial program, particularly the federal assumption of state debts, Patrick Henry drafted a resolution for the Virginia legislature in which he borrowed from the language of the assurances of Randolph and Nicholas that the federal government would have only those powers expressly delegated to it. The House passed it that day, the Senate six weeks later.

Shortly after Henry drafted his resolution, a General Assembly committee issued a report about the Washington Administration’s policies, which it found alarming. It declared (borrowing from Randolph and Nicholas) that the states were “contracting parties” whose rights were “sacred.” It insisted, echoing Randolph, that “every power not granted [to the federal government] was retained” by Virginia.

What this means, Gutzman explains, is that

Nicholas and Randolph’s explanation of the Constitution, and thus of the significance of Virginia’s ratification, had come to be seen as completely authoritative by the overwhelming majority of Virginia’s political leadership. As in the Imperial Crisis and the Confederation period, Virginians conceived of their interstate union as precisely a federal union, a union among parties that were somehow on an equal footing (as Nicholas had put it, thirteen contracting parties). Virginia, not America, remained the primary political unit, the United States Government a convenience.

Virginians continued to draw out the implications of these views over the course of the 1790s. According to John Taylor of Caroline, the great Virginian political pamphleteer, “The confederation is not a compact of individuals; it is a compact of states.” It was therefore the responsibility of the state legislatures to monitor the federal government and, if necessary, to prevent the enforcement of laws that violated the Constitution.

Constitutions are violated, Taylor said, and it would be absurd to expect the federal government to enforce the Constitution against itself. If the very federal judges the Constitution was partly intended to restrain were the ones exclusively charged with enforcing it, then “America possesses only the effigy of a Constitution.” The states, the very constituents of the Union, had to do the enforcing.

So by the time of the Virginia and Kentucky Resolutions of 1798, whose doctrines of interposition and nullification held that the states could refuse to enforce any federal law they considered unconstitutional, there was nothing new or unusual about such a view. It was merely the logical implication of assurances by Federalists at the ratifying convention, assurances that had dominated Virginia’s constitutional thought in the ensuing decade.

Those resolutions, in other words, “floated like leaves on the stream of the Virginia constitutional tradition of Jefferson’s A Summary View of the Rights of British America, Richard Bland’s An Inquiry into the Rights of the British Colonies, John Taylor’s pamphlets of the 1790s, and the Richmond Convention’s instrument of ratification (as explicated by George Nicholas and Edmund Randolph).” In form and content they belonged to the tradition of Patrick Henry’s Stamp Act Resolves and his General Assembly Resolution of 1790.

Historians had sometimes claimed that Jefferson, the anonymous author of the Kentucky Resolutions, hastily devised nullification as an ad hoc response to the Alien and Sedition Acts’ assaults on civil liberties. But as Gutzman shows, nullification, Jefferson’s proposed remedy, was in fact the culmination of a decade’s worth of Virginian political thought traceable to the ratifying convention. There was nothing ad hoc about it.

The principle of local self-government and against interference from distant central authorities was central to Virginian political thought both before and after the War for Independence. This is a key point of continuity between late colonial Virginia and the Virginia and Kentucky Resolutions of 1798. “As during the Imperial Crisis, so after the enactment of the federal Constitution, Virginians put their state first and the distant authority they had erected for their state’s convenience – formerly in Great Britain, now in the federal capital – somewhere down the list.”

Now if someone were to try to use this history as an argument in support of states’ rights today, or more generally on behalf of the compact theory of the Union, one can imagine a predictable response: Virginia was only one state, and its ratification debates do not authoritatively bind others in their own interpretations of the Constitution and the nature of the Union.

Gutzman has anticipated this reply, and has elsewhere answered it – persuasively, to my mind. Since Article II of the Articles of Confederation declared the states (including Virginia) to be sovereign, and since the delegates to Virginia’s ratifying convention explained to the people of Virginia that their state was one of thirteen parties to a compact from which they would be exonerated if it exceeded its delegated powers, then how could other states lack such a status themselves? If we accept the co-equality of the states as a constitutional principle – that is, some states cannot have more or different rights than others – then no other conclusion seems to follow, even if other states may have understood the nature of the Union differently at the time they entered.

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In light of all this, one can imagine Gutzman’s opinion of the centralizing John Marshall, but Marshall figures little in this book, which focuses primarily on Virginia’s experience rather than on the Union as a whole. For Gutzman on Marshall, see his excellent book The Politically Incorrect Guide to the Constitution.

In short, Virginia’s American Revolution is not only an invaluable contribution to the scholarly literature, but it is also a treasure trove for those who would recapture the original American republic.

Thomas E. Woods, Jr. [visit his website; send him mail] is a senior fellow at the Ludwig von Mises Institute. He is the author of nine books, including two 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. Read Congressman Ron Paul’s foreword to Meltdown.

Copyright © 2008 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Make sure you tune in to see a rarity – an expert on the 10th Amendment getting a chance to speak in the mainstream press.

From the WSCU website, here’s a little more about Dr. Gutzman:

Professor Kevin R. C. Gutzman is an expert in the Middle Period of American history, 1760-1877, with additional areas of expertise in American constitutional and Southern history. Dr. Gutzman was Distinguished Visiting Professor of History at New College in Sarasota, Florida (March 2008).    He was a featured expert in the documentary film “John Marshall: Citizen, Statesman, Jurist” (FFH, 2005).  His latest book is Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush (co-authored with Thomas E. Woods, Jr.).  He is the author of the best-selling volume The Politically Incorrect Guide to the Constitution (Regnery Press, 2007) and Virginia’s American Revolution: From Dominion to Republic, 1776-1840 (Lexington Books, 2007), as well as the essay, “Lincoln as Jeffersonian: The Colonization Chimera” (which appears in Lincoln Emancipated: The President and the Politics of Race, ed. Brian Dirck (Northern Illinois University Press, 2007)).

Dr. Gutzman has published peer-reviewed articles in The Journal of Southern History, The Journal of the Early Republic, The Review of Politics, The Journal of the Historical Society, The Virginia Magazine of History and Biography, and other journals; over fifty encyclopedia articles; scholarly reviews of over eighty books, films, and exhibitions in all the leading history journals; and numerous other essays in publications both scholarly and popular

[The Politically Incorrect Guide to the Constitution. By Kevin R.C. Gutzman. Regnery Publishing, 2007. Xiii + 258 pgs.]

Kevin Gutzman gives his readers much more than they had a right to expect. The “Politically Incorrect Guide” series in which his book appears aims at a popular audience: its goal is to correct commonly held myths of leftist propaganda.

Gutzman eminently fulfills this goal, but his book cannot be called an elementary work. Quite the contrary, The Politically Incorrect Guide to the Constitution is a major contribution to American constitutional history.

Gutzman is a leading authority on the Virginia ratification debates on the Constitution, and he uses his research to great effect. He has been much influenced by the pioneering originalist scholar Raoul Berger, but he strengthens and extends Berger’s views.

The principal thesis of the book is that the Jeffersonian, states’ rights understanding of America’s founding and the Constitution is correct. When the American colonies assembled in the Continental Congress and adopted the Declaration of Independence in 1776, they did not create a new nation, Abraham Lincoln to the contrary notwithstanding.

The very word “Congress” shows this. “The Congress was, as Massachusetts John Adams put it, a meeting place of ambassadors. In fact, the word congress had always denoted assemblies of the representatives of sovereigns — as in the case of the Congress of Westphalia in the seventeenth century” (p. 10). The Declaration said that the colonies were now states, i.e., independent governments. “In the Declaration’s culminating fourth section, Congress declared the colonies to be ‘free and independent states’ and claimed for them the right to do everything that free countries could do” (p. 11).

Nor did the Articles of Confederation change matters. Each state retained full sovereignty over all matters not “expressly delegated” to the United Sates. True enough, the Articles spoke of “Perpetual Union”; but as Gutzman astutely notes, the “fact that their union had no set end date, in part because the length of the war could not be foreseen, was denoted by calling it ‘perpetual.’ (In those days treaties between European states often purported to be ‘perpetual.’ This did not mean that neither side could bring a treaty agreement to an end, but that there was no built in sunset provision)” (p. 12). Further, in the Treaty of Paris that ended the war, George III mentioned each of the colonies by name, acknowledging them to be “sovereign and independent States” (p. 10).

Gutzman has made a strong case that, prior to the adoption of the Constitution, the states were not subordinated to a national government. One might allege on the other side that the states were not represented abroad by separate ambassadors, but this is far outweighed by the considerations our author adduces. He now confronts the principal challenge to his thesis: did the Constitution change matters? Was the United States no longer an alliance of states but instead a unified nation?

As Gutzman makes clear, some delegates to the Philadelphia Convention certainly wished to change the nature of the American system. Instead of the usual split between nationalists and their opponents, however, Gutzman maintains that there were three parties in the convention: “The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who — without ever avowing admiration for the monarchical form — wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity — a truly federal, rather than national government” (pp. 22–24).

Gutzman rightly points out that neither of the two nationalist parties got its way. Madison, the “Father of the Constitution”, wanted the federal Congress to have the power to veto state legislation, but this proposal was rejected. So far, our author has given a standard account, but now comes his key interpretive move.

He maintains that crucial to understanding the meaning of the Constitution were the intentions of the delegates to the ratifying conventions. These delegates, after all, were the people whose votes established the Constitution as legally binding. Gutzman concentrates on the Virginia convention, and he places great stress on one point.

The Virginia delegates looked on the new Constitution with great skepticism, fearing that it would become a tool for the federal government to crush the states. To placate opponents such as Patrick Henry, the leaders of the pro-ratification forces, who included Governor Edmund Randolph, the proposer of the nationalist Virginia Plan at Philadelphia, had to make a concession. They had to agree that the powers of the new Congress were limited to those “expressly delegated” in the Constitution. The delegates repudiated in advance any move by the new authorities to expand their powers beyond this. Further, they wrote into their ratification statement the right to withdraw from the new government, if it exceeded its proper powers.

Gutzman contends that because this understanding was part of Virginia’s instrument of ratification, no stronger central government can claim Virginia’s authorization. And since it would be senseless to think that the Constitution gives the federal government more power over some states than others, the Virginia restrictions apply to all the states.

This is the Jeffersonian view of the Constitution. Gutzman’s great contribution is to show that the Virginia and Kentucky Resolutions of 1798 and 1799, the key statements of the Jeffersonian position, restated the understanding of the Virginia ratifying convention. Contrary to the Federalist opponents of the Resolutions, Jefferson and Madison did not act as innovators in 1798; and their position cannot be dismissed as merely one of several competing interpretations. It was firmly based on the legally valid Virginia ratification instrument.

Gutzman summarizes his main contention in this way:

“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But … they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders(the nationalist and monarchist wings) wanted to change that understanding.” (p. 73)

However sound the Jeffersonian understanding of the Constitution, it of course has not prevailed in subsequent American history. Gutzman assigns federal judges a large share of the responsibility for the transformation of the original understanding; and one judge in particular arouses his critical scorn. The judge in question is the foremost of all federalist judges, Chief Justice John Marshall. To my surprise, Gutzman does not center his attack on Marbury v. Madison. He is critical of Marshall’s reasoning, but “[d]espite what most legal scholars will tell you, ‘judicial review’ was uncontroversial before Marbury v. Madison” (p. 78). I wish that Gutzman had addressed the arguments to the contrary advanced by L. Brent Bozell in his neglected The Warren Revolution. I do not say Bozell is right, but his case against judicial review merits a response.

For Gutzman, Marshall’s chief sin is not judicial review but his repudiation of the Jeffersonian understanding of the limits of federal power. In McCulloch v Maryland, Marshall “wrote that while the Articles of Confederation had specified that Congress had only the powers it was ‘expressly delegated,’ the Constitution included no such language, so no such principle applied to it. This was an extraordinary argument, given that Marshall himself and other Federalists … had assured their ratification colleagues that this very principle of limited federal power … was implicit in the unamended Constitution even before the Tenth Amendment was adopted” (p. 91).

Given his Jeffersonian views, it comes as no surprise that Gutzman thinks the Southern states acted fully within their rights when they seceded from the Union in 1861. “The Federalists always insisted during the ratification debates — knowing that they had to win support for the Constitution — that the states were individual parties to a federal compact. Spelling out the logic of the compact, three states — Virginia, Maryland, and Rhode Island — explicitly reserved (in the act of ratifying the Constitution) their right to secede from the Union” (p. 122).

As always, Gutzman makes a strong argument, but on one minor point I think he is mistaken. He says that one “legacy of Dred Scott v. Sandford was that after 1857, virtually any Republican candidate was sure to beat Buchanan for president in 1860 — which would almost certainly mean the dissolution of the Union (p. 120; see also p.160). But Buchanan was not a candidate for president in 1860. Suppose the Democratic Party had not split. Is it a foregone conclusion that Lincoln would have defeated Stephen A. Douglas?

One final example of Gutzman’s constitutional iconoclasm must here suffice. The Supreme Court has used the due process clause of the Fourteenth Amendment as its principal instrument to eviscerate state sovereignty. Various decisions of the Court have held, e.g., that the Amendment applies the restrictions of the Bill of Rights to the states.

Gutzman rejects this view in the most radical way possible. He holds that the Fourteenth Amendment was never legally adopted. Congress required the Southern states to ratify the Amendment as a condition for readmission to the Union. But this is blatantly illegal: if the legislatures who “ratified” under duress were not already valid representatives of existing state governments, their votes had no legal effect. Our author concludes: “Thus, the Fourteenth Amendment was never constitutionally proposed to the states by Congress and never constitutionally ratified by the states, and yet today it stands (after the Constitution’s structural provisions) as the most significant part of the American legal system” (p. 133).

Gutzman has made a very strong case for his Jeffersonian understanding of the Constitution. A critic might challenge him on the grounds that we need not today care about how the Constitution was understood by its eighteenth century ratifiers. But Gutzman could in response say that this is what was legally enacted; those who favor other views of government should not attempt to attain their goals through misreadings and distortion of the constitutional text.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store. Send him mail.

Kevin Gutzman gives his readers much more than they had a right to expect. The “Politically Incorrect Guide” series in which his book appears aims at a popular audience: its goal is to correct commonly held myths of leftist propaganda.

Gutzman eminently fulfills this goal, but his book cannot be called an elementary work. Quite the contrary, The Politically Incorrect Guide to the Constitution is a major contribution to American constitutional history.

Gutzman is a leading authority on the Virginia ratification debates on the Constitution, and he uses his research to great effect. He has been much influenced by the pioneering originalist scholar Raoul Berger, but he strengthens and extends Berger’s views.

The principal thesis of the book is that the Jeffersonian, states’ rights understanding of America’s founding and the Constitution is correct. When the American colonies assembled in the Continental Congress and adopted the Declaration of Independence in 1776, they did not create a new nation, Abraham Lincoln to the contrary notwithstanding.

The very word “Congress” shows this. “The Congress was, as Massachusetts John Adams put it, a meeting place of ambassadors. In fact, the word congress had always denoted assemblies of the representatives of sovereigns – as in the case of the Congress of Westphalia in the seventeenth century” (p. 10). The Declaration said that the colonies were now states, i.e., independent governments. “In the Declaration’s culminating fourth section, Congress declared the colonies to be ‘free and independent states’ and claimed for them the right to do everything that free countries could do” (p. 11).

Nor did the Articles of Confederation change matters. Each state retained full sovereignty over all matters not “expressly delegated” to the United Sates. True enough, the Articles spoke of “Perpetual Union”; but as Gutzman astutely notes, the “fact that their union had no set end date, in part because the length of the war could not be foreseen, was denoted by calling it ‘perpetual.’ (In those days treaties between European states often purported to be ‘perpetual.’ This did not mean that neither side could bring a treaty agreement to an end, but that there was no built in sunset provision)” (p. 12). Further, in the Treaty of Paris that ended the war, George III mentioned each of the colonies by name, acknowledging them to be “sovereign and independent States” (p. 10).

Gutzman has made a strong case that, prior to the adoption of the Constitution, the states were not subordinated to a national government. One might allege on the other side that the states were not represented abroad by separate ambassadors, but this is far outweighed by the considerations our author adduces. He now confronts the principal challenge to his thesis: did the Constitution change matters? Was the United States no longer an alliance of states but instead a unified nation?

As Gutzman makes clear, some delegates to the Philadelphia Convention certainly wished to change the nature of the American system. Instead of the usual split between nationalists and their opponents, however, Gutzman maintains that there were three parties in the convention: “The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who – without ever avowing admiration for the monarchical form – wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity – a truly federal, rather than national government” (pp. 22–24).

Gutzman rightly points out that neither of the two nationalist parties got its way. Madison, the “Father of the Constitution”, wanted the federal Congress to have the power to veto state legislation, but this proposal was rejected. So far, our author has given a standard account, but now comes his key interpretive move.

He maintains that crucial to understanding the meaning of the Constitution were the intentions of the delegates to the ratifying conventions. These delegates, after all, were the people whose votes established the Constitution as legally binding. Gutzman concentrates on the Virginia convention, and he places great stress on one point.

The Virginia delegates looked on the new Constitution with great skepticism, fearing that it would become a tool for the federal government to crush the states. To placate opponents such as Patrick Henry, the leaders of the pro-ratification forces, who included Governor Edmund Randolph, the proposer of the nationalist Virginia Plan at Philadelphia, had to make a concession. They had to agree that the powers of the new Congress were limited to those “expressly delegated” in the Constitution. The delegates repudiated in advance any move by the new authorities to expand their powers beyond this. Further, they wrote into their ratification statement the right to withdraw from the new government, if it exceeded its proper powers.

Gutzman contends that because this understanding was part of Virginia’s instrument of ratification, no stronger central government can claim Virginia’s authorization. And since it would be senseless to think that the Constitution gives the federal government more power over some states than others, the Virginia restrictions apply to all the states.

This is the Jeffersonian view of the Constitution. Gutzman’s great contribution is to show that the Virginia and Kentucky Resolutions of 1798 and 1799, the key statements of the Jeffersonian position, restated the understanding of the Virginia ratifying convention. Contrary to the Federalist opponents of the Resolutions, Jefferson and Madison did not act as innovators in 1798; and their position cannot be dismissed as merely one of several competing interpretations. It was firmly based on the legally valid Virginia ratification instrument.

Gutzman summarizes his main contention in this way:

“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But … they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders(the nationalist and monarchist wings) wanted to change that understanding.” (p. 73)

However sound the Jeffersonian understanding of the Constitution, it of course has not prevailed in subsequent American history. Gutzman assigns federal judges a large share of the responsibility for the transformation of the original understanding; and one judge in particular arouses his critical scorn. The judge in question is the foremost of all federalist judges, Chief Justice John Marshall. To my surprise, Gutzman does not center his attack on Marbury v. Madison. He is critical of Marshall’s reasoning, but “[d]espite what most legal scholars will tell you, ‘judicial review’ was uncontroversial before Marbury v. Madison” (p. 78). I wish that Gutzman had addressed the arguments to the contrary advanced by L. Brent Bozell in his neglected The Warren Revolution. I do not say Bozell is right, but his case against judicial review merits a response.

For Gutzman, Marshall’s chief sin is not judicial review but his repudiation of the Jeffersonian understanding of the limits of federal power. In McCulloch v Maryland, Marshall “wrote that while the Articles of Confederation had specified that Congress had only the powers it was ‘expressly delegated,’ the Constitution included no such language, so no such principle applied to it. This was an extraordinary argument, given that Marshall himself and other Federalists … had assured their ratification colleagues that this very principle of limited federal power … was implicit in the unamended Constitution even before the Tenth Amendment was adopted” (p. 91).

Given his Jeffersonian views, it comes as no surprise that Gutzman thinks the Southern states acted fully within their rights when they seceded from the Union in 1861. “The Federalists always insisted during the ratification debates – knowing that they had to win support for the Constitution – that the states were individual parties to a federal compact. Spelling out the logic of the compact, three states – Virginia, Maryland, and Rhode Island – explicitly reserved (in the act of ratifying the Constitution) their right to secede from the Union” (p. 122).

As always, Gutzman makes a strong argument, but on one minor point I think he is mistaken. He says that one “legacy of Dred Scott v. Sandford was that after 1857, virtually any Republican candidate was sure to beat Buchanan for president in 1860 – which would almost certainly mean the dissolution of the Union (p. 120; see also p.160). But Buchanan was not a candidate for president in 1860. Suppose the Democratic Party had not split. Is it a foregone conclusion that Lincoln would have defeated Stephen A. Douglas?

One final example of Gutzman’s constitutional iconoclasm must here suffice. The Supreme Court has used the due process clause of the Fourteenth Amendment as its principal instrument to eviscerate state sovereignty. Various decisions of the Court have held, e.g., that the Amendment applies the restrictions of the Bill of Rights to the states.

Gutzman rejects this view in the most radical way possible. He holds that the Fourteenth Amendment was never legally adopted. Congress required the Southern states to ratify the Amendment as a condition for readmission to the Union. But this is blatantly illegal: if the legislatures who “ratified” under duress were not already valid representatives of existing state governments, their votes had no legal effect. Our author concludes: “Thus, the Fourteenth Amendment was never constitutionally proposed to the states by Congress and never constitutionally ratified by the states, and yet today it stands (after the Constitution’s structural provisions) as the most significant part of the American legal system” (p. 133).

Gutzman has made a very strong case for his Jeffersonian understanding of the Constitution. A critic might challenge him on the grounds that we need not today care about how the Constitution was understood by its eighteenth century ratifiers. But Gutzman could in response say that this is what was legally enacted; those who favor other views of government should not attempt to attain their goals through misreadings and distortion of the constitutional text.

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