Recovering the Actual Constitution

Recovering the Actual Constitution
by Kevin R. C. Gutzman

One of the chief obstacles to the recovery of the actual Constitution from the judges and their sycophants is the type of "education" to which fledgling lawyers have been subjected in law school. In general, they have read a heap of judicial opinions, most of them based on nothing more than the judges' personal political preferences. They are taught to respect, even revere, these judicial products as if they were the Constitution itself -- although in fact they are in many ways the Constitution's perfect opposite.

Alongside the case method of instruction as an obstacle to any attempt to reclaim authentically constitutional government in the United States is the tendency to worship a few early American politicians. In the hands of the West Coast Straussians, this Founders worship distorts the truth about the establishment of the current federal government so very greatly.

Take, for example, the "review" of my book, The Politically Incorrect Guide to the Constitution, in the latest issue of The Claremont Review of Books. There, Matthew J. Franck brandishes his unhistorical "learning" to embarrass himself mightily.

Take, for example, this pearl of wisdom:

He [meaning Yours Truly] tells us that the Constitutional Convention was attended by three groups: 'monarchists' like Alexander Hamilton, 'nationalists' like James Madison, and defenders of 'the primary place of the states' in the Union. He then ridiculously declares that the third group won all of the decisive arguments at Philadelphia and in the ratification campaign, only to have their authentic constitutionalism betrayed by the authors of The Federalist, the administration of George Washington, the early Congress, and the Supreme Courts of John Jay and John Marshall.

Here we have a clear illustration of the fact that it is takes more space to refute falsehood than to level it.

Yes, Franck is right that I assert that three groups -- monarchists, nationalists, and federalists (as distinguished from Federalists) -- attended the Philadelphia Convention. His implication is that this is a foreign idea, one that only a crackpot could have come up with. Where did I get this idea? Why, from none other than Luther Martin, a delegate to the Philadelphia Convention.

Even a cursory familiarity with the course of the Convention, from Alexander Hamilton's long, infamous speech in favor of monarchy, through the nationalist Virginia Plan's defeat, to the signing of a federal -- not a national -- constitution, bears out my description. Since Franck may not be alone in his ignorance of what happened in Philadelphia, however, let us consider his statements. He says that I ridiculously claim that people who favored a federal over a national government carried the day in Philadelphia, and that they then got their way in the ratification process in the several states, as well.

The leading virtue of my account is that it is true. Take the fate of the monarchists' and the nationalists' alternatives: the avowed monarchist Hamilton conceded in the course of calling for a president for life, senators for life appointed by the president, a presidential power to appoint governors, etc., that Americans were not likely to accept his model. Only one other delegate, and that one obscure, is thought to have sympathized with him. (Yet, of course, through his acolyte John Marshall, Hamilton would soon have a formative influence on American "constitutional law.")

For their part, the other defeated group, nationalists such as Madison, are a more interesting case. Madison is perhaps the best example of an early American politician whose influence is exaggerated in popular and academic history. Because of the existence of an expensive, government-sponsored Madison papers project, and because of the fact that he helped author The Federalist, it is very convenient to study his writings. For scholars uninterested in digging into the context of Madison's work, the ease of teasing out his opinions poses a fatal temptation to equate Madison's ideas with those of "the Founders."

But how representative of the Philadelphia Convention was Madison, really? He was the chief author of the Virginia Plan, which would have created a national, in the place of the old federal, government. In other words, where the states' role had been primary from 1775 to 1787, Madison wanted to reduce them to a secondary status and make the central government primary.

To that end, he proposed in the Virginia Plan to give Congress general legislative authority and to empower the national judiciary to hear any case that might cause friction among the states, to give the Congress a veto over state laws, to empower the national government to use the military against the states, and to eliminate the states' accustomed role in selecting members of Congress.

The third group -- those who wanted to retain the states' primary role in the federal system -- defeated every one of these, the leading arguments of the Virginia Plan. After its first rejection, James Madison repeatedly raised the issue of the national veto over state laws, and his efforts repeatedly went down to defeat. Although the Convention adjourned on September 17, Madison wrote to Thomas Jefferson on October 24, 1787 lamenting this "necessary" expedient's omission from the Constitution.

In fact, the idea of "national" government was thoroughly thumped in Philadelphia. So unpopular was it that when Pennsylvania's James Wilson, a Philadelphia Convention nationalist, made his famous speech at the Philadelphia State House on October 6, 1787, he began by contrasting the state constitutions to the proposed federal Constitution. As he put it:

When the people established the powers of legislation under their separate [that is, their state] governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.

Another way of putting this is that the nationalist Virginia Plan had been defeated in Philadelphia in favor of a federal plan. Congress had only the powers included in "the positive grant." Had he any concern with learning the truth of the matter, Franck might find assurances that the proposed government was to be federal, not national, in the records of its friends' arguments in South Carolina, Virginia, Massachusetts, and New York, as well.

As I mentioned above, people are taught to worship the Founders with a quasi-religious reverence. It is a powerful rhetorical trick, then, for one fearful of the teaching of The Politically Incorrect Guide to the Constitution such as Franck to note that I criticize several prominent historical figures for betraying the people who relied on this promise that the new government would be federal, not national. Among those people, he says, were the Jay Court, the Marshall Court, majorities of the early congresses, and George Washington. How could I say such a thing?

Once, mine was not so controversial a point. Consider the only really significant decision of the Jay Court: that in Chisholm v. Georgia (1793). There, the Supreme Court laid claim to jurisdiction over a type of case that the Constitution did not clearly give it. The response was swift: Congress passed in 1794, and the states ratified in 1795, an amendment making explicit that the federal courts did not have jurisdiction over such cases, the Eleventh Amendment. Another way to put this is that the Supreme Court acted as if the Virginia Plan had been adopted in regard to this kind of case, and the people said, "No, we meant it: we want a federal, not a national court system! You may only hear these few types of cases!"

The congresses of the 1790s behaved in unconstitutional ways, as well. Most notable of Congress's unconstitutional acts were the Sedition Act of 1798 -- hooted down in the halls of history as a violation of the Tenth and First Amendments, exactly as the early congress's critics said it should be at the time -- and the Bank Bill of 1790. Space prohibits us from developing this point further at present, but I should note that in 1800, the Federalist Party of John Marshall, which had dominated Congress for eleven years, was voted out of power, and within a short time, it literally ceased to exist!

Why? Because it insisted on reading the Constitution as a national one. It insisted on betraying the promise that the federal Congress would have only the powers of "the positive grant expressed in the instrument of the union."

So, whose account is "ridiculous," that of The Politically Incorrect Guide to the Constitution, which says what James Wilson said at the State House in 1789? Or is the ridiculous account that of the Jay Court in Chisholm, the early Congresses that passed the Bank Bill and Sedition Act, and West Coast Straussians such as Mr. Franck?

The high point of the betrayal of the people's Constitution, the one that they were told they were getting and very narrowly voted to accept, came in the Marshall Court of the 1810s and 1820s. More on that, and on Mr. Franck's ill-informed "review," anon.


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, 1776­1840 (newly available in paperback) 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 Fate of American Liberty from World War I to George W. Bush (forthcoming from Crown Forum on July 8, 2008).