July 25, 2015
by Dwayne Stovall
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Constitutional Interpretation: Living and Breathing is Dead – Michael Maharrey

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The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” –James Wilson, Of the Study of Law in the United States, Circa, 1790

 

Many Americans today view the Constitution as a “living, breathing” document.

By living and breathing, they mean the Constitution was written as a “dynamic” document; flexible, so it can change with the times. Instead of maintaining a fixed meaning, judges, lawmakers and bureaucrats mold its various clauses and provisions to fit the needs of the day. Woodrow Wilson was one of the first politicians to define and aggressively advocate this idea of a living, breathing document in his book Constitutional Government in the United States, and while stumping on the campaign trail in 1912.

“Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission – in an era when ‘development,’ ‘evolution,’ is the scientific word – to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.”

But a living, breathing Constitution is really a dead Constitution.

America’s founding document essentially serves as a contract between the people of the states. Through the Constitution, they formed the Union, set up a general government to administer specific objects and delegated to it specific, enumerated powers.

You can’t have a living, breathing contract.

Think about it. Would you sign a living, breathing mortgage? Would you enter into a living, breathing employment  contract? Would you sign a living, breathing agreement with a builder to put an addition on your house?

Of course not! Because you would have no idea what that contract really means.

Contractual provisions have a fixed meaning. When you sign on the dotted line, you expect them to remain constant over time. When disagreements come up, both parties argue their position based on how they understood the contract when they signed it. Nobody would accept a banker saying, “Well, I know the mortgage meant so-and-so, but now it means something different. It’s a living breathing mortgage.”

That’s absurd.

And a living breathing Constitution is no less absurd.

People can only live together and cooperate in a society with an agreed upon, consistently applied set of rules. We call this the “rule of law.” The principle roots itself in the idea that no individual or institution stands above the law, and that rules consistently apply equally to all people in any given situation. Rule of law creates a bulwark against arbitrary power, whether wielded by a totalitarian leader, promoted by mob rule, or exercised by duly elected legislators.

The rule of law requires consistency. Otherwise, government becomes arbitrary. When the limits on government power become subject to reinterpretation by the government itself, it becomes limitless in power and authority.

That’s exactly what we have today. The federal government makes up things as it goes along. The feds claim to power to tell you what kind of light bulb you can use, they force you tot buy health insurance, and they spy on everybody in America, all based on this living, breathing lie.

But how do we know what those enumerated powers really mean? How do we determine the extent of powers delegated?

The only rational way to understand the Constitution lies in an interpretive process known as originalism. To read the Constitution through an originalist framework means we seek to understand how the people understood it at the time. In other words, what they believed they were agreeing to. Otherwise, meaning becomes a moving target, subject to the changes in language and societal assumptions over time.

James Madison asserted that we must view the Constitution in this way in a letter to Henry Lee.

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”

Understanding the ratifiers’ intent takes some research and digging. On the other hand, some mystical veil of historical fog doesn’t obscure their view of constitutional powers. We have records of the ratification debates and the ratifying instruments themselves. We also have the Federalist Papers and other documents written by supporters used to “sell” the Constitution to ratifying convention delegates, and the population at large. These essays were akin to a window sticker on a used car, explaining exactly what the people were “buying.” We have the numerous letters and essays written by opponents of the Constitution, along with letters written by framers and ratifiers. All of these sources help guide our understanding. With a little work, you will find the original meaning of the Constitution easily determined and understandable. Thomas Jefferson himself advocated this process of constitutional interpretation.

“On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”

It’s time to kill this idea of a living breathing Constitution before it kills the Constitution.

 

About Michael Maharrey

Michael Maharrey is the executive director of OffNow and the national communications director for the Tenth Amendment Center. He is the author of ‘Our Last Hope – Rediscovering the Lost Path to Liberty.’

http://www.michaelmaharrey.com/

May 21, 2015
by Dwayne Stovall
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Presidential Power, Explained.

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by Bob Greenslade

Let’s cut to the quick. I am sick and tired of hearing people get excited over the Republican presidential debates that seem to take place every other day. For the most part, they are a pathetic joke because they only perpetuate the usurpation of power. The general election debates in 2012 will be more of the same.

Under our system of government, the powers of the federal government and the president are defined and limited by the Constitution. You would never know that listening to the questions and analysis by media pundits. What’s next? Asking the candidates if they can use the powers of the federal government to part the Red Sea or resurrect the dead?

The group discussions that follow are equally troubling because they focus on perceptions and misconceptions concerning the powers and duties of the president. Hasn’t any one of these people taken a moment to review the Constitution before participating in a focus group or have they been so dumbed down by the education system that they are incapable locating the clauses in the Constitution?

Since presidential debates are an ongoing series of job interviews, how can the candidates apply for the office of president of these United States unless they know the 13 powers and duties of the president? If I were running the debates, each candidate would be given a piece of paper at the first debate and asked to write down the constitutional powers and duties of the president. The results would be announced before the first question was asked. Not only would it expose any imposters and tie ignorance to their tail, but it would educate the audience and frame the debate. It would also shine the light of usurpation on the sitting president for his transgressions.

That being said, the 12 original powers and duties of the president are:

1. Signs or rejects (vetoes) all legislative bills passed by Congress. If a president vetoes the legislation and Congress over-rides the veto by a two-thirds vote, the legislation becomes law and a president is powerless to reverse or negate their vote. (Art. I., Sec. 7., Cl. 2.)

Note: It has been asserted that a president can legislate through executive orders. This assertion is false and conflicts with Article I. That clause vests all legislative power in Congress. (See endnote 1.)

2. Is the Commander and Chief of the military forces (Army and Navy in the original text) of the United States. (Can use the military only after a declaration of War by Congress or an act of aggression against the United States by a foreign power or entity. Can also use the military to prevent an imminent attack. Both of these acts would be construed as an act of war against the United States. Thus, a congressional declaration of war would be a formality because the United States would already be at war. After the attack on Pearl Harbor in 1941, FDR appeared before a Joint Session of Congress and requested that body formally declare war on Japan. See endnote 2) The president is also the Commander and Chief of the Militia of the several States when called into the actual service of the United States, by Congress, to execute the Laws of the Union, suppress Insurrections and repel Invasions.) (Art. II., Sec. 2., Cl. 1.)

Note: In Federalist Essay No. 69, Alexander Hamilton compared the war powers of the president, under the proposed constitution, to that of the King of Great Britain. (See endnote 3. See also endnote 4 on the War Powers Act.)

3. Requests opinions, in writing, from the principal officer of any Executive Department of the federal government concerning their duties.

(Art. II., Sec. 2., Cl. 1.)

4. Can grant Reprieves or Pardons for Offences against the United States, except in Cases of Impeachment.

(Art. II., Sec. 2., Cl. 1.)

5. Makes Treaties (with foreign nations) with the Advice and Consent of the Senate. (Only by a vote of two-thirds of those Senators present.)

(Art. II., Sec. 2., Cl. 2.)

6. Nominates for appointment, with the Advice and Consent of the Senate, Ambassadors, public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States. Congress can, by law, vest the President with the power to appoint inferior Officers, i.e., Courts of Law, Heads of Departments, etc.

(Art. II., Sec. 2., Cl. 2.)

7. Can fill Vacancies which occur when the Senate is in Recess and unavailable to confirm an appointment.

(Art. II., Sec. 2., Cl. 3.)

8. Gives Congress from time to time Information on the State of the Union (the Union between the several States), and recommends to Congress for its Consideration such Measures (laws, etc.) as he shall judge necessary and expedient. (Note the use of the word “recommends.” Congress is free to reject his recommendations.)

(Art. II., Sec. 3.)

9. Can convene both Houses of Congress on extraordinary Occasions.

(Art. II., Sec. 3.)

10. Receives Ambassadors and other public Ministers.

(Art. II., Sec. 3.)

11. Takes care that all (federal) laws are faithfully executed.

(Art. II., Sec. 3.)

12. Commissions all Officers of the United States.

(Art. II., Sec. 3.)

13. The president was granted a 13th power and duty in 1967 with the ratification of the 25th Amendment. Section 2 of this Amendment vests the president with the authority to nominate a vice president in the event there is a vacancy in the office of the vice president. Congress then approves or rejects the nomination.

This is the extent of the constitutional powers and duties of the president. A president does not have any constitutional authority over children, education, family values, abortion, or any of the other social issues they constantly discuss in debates and when in office. The legislative and war making powers are vested exclusively in Congress, not the president. All bills raising revenue must originate in the House of Representatives, not the White House. The remaining powers, for the most part, relate to the internal operation of the federal government and have no direct effect on the everyday lives of the American people.

Unfortunately, the chances of a debate being restricted to the constitutional powers and duties of the president are slim to none. The American people have lived all their lives under the federal government’s usurpations of power and demand that it continue. A candidate who ran on a pure constitutional platform would not stand a chance of getting elected because most of the crap the federal government does would go away.

It has been said that a people get the government they deserve. As long as the American people keep begging for more federal control over their lives, presidential candidates will continue to respond with ideas on how to continue and expand federal usurpations of power.

End Notes:

1-Executive Orders and Proclamations.

A congressional committee report has noted: “Because the president has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority.” 85th Congress, 1st Session, Executive Orders and Presidential Proclamations: A study of a Use of Presidential Powers (Comm. Print 1957).

2-The Congressional Declaration of War adopted pursuant to his request stated in part:

“Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.”
Once war was formally declared, President Roosevelt, as stated in the Declaration, received the authority, from Congress, to take control of the military forces of the United States and prosecute the war to its conclusion.

When Germany declared war on the United States three days later, Roosevelt again appeared before a Joint Session of Congress. Congress responded by formally declaring war on Germany. This Declaration gave Roosevelt separate authorization and control over the military forces of the United States. Each Declaration was distinct from the other.

If the president, as commander in chief, had the constitutional authority to initiate war, as some now claim, then there would have been no need for President Roosevelt to have appeared before a Joint Session of Congress on two separate occasions in 1941. He could have simply by-passed Congress by invoking his authority as commander in chief. In addition, if a president has unlimited control over the military forces of the United States, then why did it take two separate declarations of war in 1941 to authorize and direct President Roosevelt to employ the military forces of the United States against Japan and Germany? If the office of the president had independent power over the military, through the commander in chief provision, then President Roosevelt could have authorized and directed himself to employ United States forces against these nations.

3-“The President is to be the commander-in-chief of the army and navy of the United States. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; 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.”

Since a president acts merely as the highest-ranking admiral or general, he lacks the constitutional authority to determine the nation that war can be waged against. Only Congress can make that determination. This is the purpose of a formal declaration of war. It specifically designates the nation or nations that war will be waged against. Once this is done, the president then receives the power to act offensively and prosecute the war to its conclusion.

During the debates in the Federal [Constitutional] Convention of 1787, it was proposed to grant Congress the power “to make war.” A separate proposal to vest this power in the president was debated and rejected. It was asserted that a president should not have the power to initiate war because he could not be trusted with such a power. The proposal to substitute the word “declare” for “make” was agreed to unanimously. (See Art. I., Sec. 8, Clause 11 for Congress’ power to declare war.)

4-In 1973, over a presidential veto, Congress passed a statute known as the War Powers Act. A provision of this Act purports to give a president extraordinary control over the military forces of the United States without a congressional declaration of war. It should be noted that Congress cannot grant itself or a president extraordinary constitutional powers by statute. It also cannot transfer one of its powers to another branch of government. Thus, it would take an amendment of the Constitution to lawfully change the war and commander in chief provisions of the Constitution.

Bob Greenslade has been writing for www.thepriceofliberty.org since 2003.

February 7, 2015
by Dwayne Stovall
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The Incorporation Doctrine and the Bill of Rights – Michael Maharrey

In my last post, “Was the Bill of Rights Meant to Apply to the States”, I established that the Bill of Rights was not originally intended to apply to the states.

i-want-your-civil-liberties-matt-greganti

But lawyers and other supporters of federal courts policing rights at the state and local level will point to the 14th Amendment. They argue that it “incorporates” the Bill of Rights and applies it to state governments.

It wasn’t until 1925, some 57 years after ratification, that the Supreme Court mystically found the concept of incorporation in the 14th Amendment. In the 1873 Slaughterhouse case, the Court rejected the idea that the privileges and immunities clause in the 14th Amendment applied the Bill of Rights to the states.

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

When we carefully examine the congressional debates and the arguments during ratification of the 14th, it becomes pretty clear the Court was correct in its opinion.

The 14th Amendment was clearly intended to constitutionalize the Civil Rights Act of 1866. This was asserted over and over again both in the congressional debates and as supporters presented the amendment to the states.

Sen. Lyman Trumbull (Ill.) guided the 14th through the Senate. In a speech in Chicago as the amendment was being debated, he “clearly and unhesitatingly declared Sec. 1 of the Amendment to ‘be a reiteration of the rights as set forth in the Civil Rights Bill.’” Martin Thayer (R-Pa.) declared, “It is but incorporating in the Constitution the principle of the civil rights bill which has lately become a law.” Indiana Senator Henry Smith Lane reaffirmed Trumbull’s views, as did several other congressmen addressing their states. West Virginia Rep. George Latham said, “The civil rights bill, which is now a law…covers exactly the same ground as the amendment.” Howard Jay Graham, an advocate of an abolitionist reading of the amendment said, “Virtually every speech in the debates on the amendment – Republican and Democrat alike – said or agreed that the amendment was designed to embody or incorporate the Civil Rights Act.”

Those who argue that the 14th Amendment was intended to apply to the states primarily rely on Rep. John Bingham, the principle framer.

But, as one historian put it, “Bingham is one who used ringing rhetoric as a substitute for rational analysis.” His statements surrounding the 14th bear this out.

On the one hand, he did indeed argue at times for an enforcement of the Bill of Rights on the states. On the other hand, he argued vehemently against inclusion of the phrase “civil rights and immunities” in the 1866 Civil Rights Act, saying it could be interpreted to strip rights from the states. He was afraid the bill would empower to federal government to force his state of Ohio to enfranchise blacks. As much as northern states wanted to protect the basic rights of freed slaves, they certainly did not want to give up their own sovereignty and power. Bingham himself conceded this point.

The care of the property, liberty and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country.

While Bingham was an important figure in framing the Fourteenth, his opinion, even if you can flesh out exactly what that was, does not define the amendment’s meaning. A Supreme Court Justice Felix Frankfurter wrote, “Remarks of a particular proponent of the Amendment, no matter how influential, are not to be deemed part of the Amendment. What was submitted for ratification was his proposal, not his speech.” Bingham’s confused commentary aside, the intent of the Congress was clearly to constitutionalize the Civil Rights Act of 1866, and we must look to it to understand the scope of the amendment.

The civil rights act specifically enumerates the privileges and immunities that were to be protected. (The privileges and immunities listed in Corfield v Coryell were also mentioned in debates.) They include the right to enter into contracts, own property, inherit property, travel freely and access to the courts.

Sen. Jacob Howard was another figure responsible for bringing the Bill of Rights into the discussion of the Fourteenth, and his role actually carries more weight than Bingham’s. As the spokesperson for the joint committee that drafted the 14th Amendment, Howard introduced it to the full Senate in a speech. He mentioned the Bill of Rights in a single sentence after reading the privileges and immunities from Corfield saying “to this should be added the personal rights guaranteed and secured by the first eight amendments.”

But Howard was not supposed to be the one introducing the amendment in the first place. The committee chairman was sick and he filled in at the last minute. There is every indication that Howard “went off script.” It is also notable that he was one of the most radical Republicans in the Senate and not representative of the prevailing point of view. Howard’s notion was brushed aside as the debates went on. Even Howard later backed off, saying the goal was to legitimize the Civil Rights Act of 1866. It’s also important to note that no mention was made of applying the Bill of Rights to the states when the bill was introduced in the House.

Horace Flack (a supporter of incorporation) did a thorough analysis of “speeches concerning the popular discussion of the Fourteenth Amendment.” He wrote:

The general opinion held in the north…was that the amendment embodied the Civil Rights Act…There does not seem to have been any statement at all as to whether the first eight amendments were to be made applicable to the states or not.

In fact, had this been the understanding, the people of the north would have rejected the amendment.

The vast weight of evidence from both the congressional debates and the ratification debates supports a limited view of privileges and immunities as defined by the Civil Rights Act of 1866, not an incorporation of the Bill of Rights.

This is a complex issue that can hardly be covered in a single article. I highly recommend Raoul Berger’s Government by Judiciary. It is the seminal scholarly work on the 14th Amendment.

About Michael Maharrey

Michael Maharrey is the executive director of OffNow and the national communications director for the Tenth Amendment Center. He is the author of ‘Our Last Hope – Rediscovering the Lost Path to Liberty.’

http://www.michaelmaharrey.com/

 

November 17, 2014
by Dwayne Stovall
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Incorporation Doctrine

Special Thanks to our friends at:

Redefining the Role of Government

There are a thousand hacking at the branches of evil to one who is striking at the root. – Henry David Thoreau

Thoreau gets it, rather than hacking at the branches of evil that have all but destroyed federalism, we need to strike at the root; the Incorporation Doctrine. The Incorporation Doctrine is a corrupt legal theory that forces the Bill of Rights upon the State via judicial fiat from the Supreme Court. Much of what has gone wrong with government has been done via the Court, and the Incorporation Doctrine is no different.

Here are the facts. First, the Fourteenth Amendment to the Constitution was ratified by the States in 1868 (by unconstitutional means by the way). For roughly 50 years, there was no such thing as the Incorporation Doctrine until magically, it appeared in a few landmark Supreme Court cases in the 1920’s. Think about that, for roughly fifty years, no other Court “saw” the Incorporation Doctrine, but voila!, it magically appeared.

Secondly, a simple reading of the preamble to the Bill of Rights makes clear who the Bill of Rights was written to; hint, it wasn’t the States. Read the Preamble below and see if you can find anywhere the theory that the Bill of Rights were to be applied to the State. In all actuality, it is 100% the exact opposite.

The Preamble to The Bill of Rights

Congress of the United States

begun and held at the City of New-York, on

Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.


After reading the Preamble, is there any question who the Bill of Rights was intended to restrict? It obviously was not the States and because of the insidiousness of the Supreme Courts overreach, the concept of federalism is all but been destroyed.

The video below, by Professor Tom Woods will go into much greater detail about the travesty of the Incorporation Doctrine, our hope is, after viewing it, you will take one more step towards Thinking Big and Acting Big.

 

 

“Most bad government has grown out of too much government.” — Thomas Jefferson

 

 

 

November 16, 2014
by Dwayne Stovall
0 comments

Freedom vs the Courts: An Interview with Dr. Kevin Gutzman

In the audiio link below, the 10th Amendment Center’s founder, Michael Boldin, interviews Dr. Kevin Gutzman.

Kevin Gutzman, best-selling author and expert on American Constitutional history, discusses the 14th Amendment and the Incorporation Doctrine, how the doctrine has given us government by judiciary instead of government by representation, the Due Process clause, Substantive Protections vs. Due Procedure, the original intent of the 14th Amendment, how the courts changed that meaning over the ensuing five decades, the Bill of Rights as a limitation on the power of Congress, how the incorporation doctrine has turned the principles of federalism on its head, representative government vs. government by experts, Privileges or Immunities and The Slaughter-House Cases, rights of State citizenship, how James Madison warned that those in government would tend to use and expand power, some of the greatest violations of the Constitution under the doctrine of incorporation, why federalism and decentralization is a better system to secure liberty, and more.

http://tenthamendmentcenter.com/?powerpress_pinw=3819-podcast

Original brodcast – November 24th, 2009

 

 

 

November 10, 2014
by Dwayne Stovall
2 Comments

The United States Is Not a Nation! – Brion McClanahan

I have often required my students on the first day or two of class to use the Oxford English Dictionary and define the following words: nation and state. Most do not follow my directions and submit a modern Webster’s or online distortion of the word, and those who use the Oxford often fail to provide the etymology of either word. I can’t fault them for that, because they have probably been taught since first grade in the public “school” system to submit the first definition they find. Thus, the common results of the activity are similar to the following:

Nation – noun: a large body of people, associated with a particular territory, that is sufficiently conscious of its unity to seek or to possess a government peculiarly its own. (from dictionary.com)

State – noun: the territory, or one of the territories, of a government. (from dictionary.com)

How profound, statist…and completely absurd! If both are true, than the United States should simply be the “United State.” A state is simply a “territory…of a government”? A nation is simply a large body of people that occupy a territory? That would be news to the founding generation. Of course, a careful reading of the history of both words could correct this mess and place the Union of the States within its proper historical context.

The word “nation” found its way into the English language around the 14th century. Under the old definition, a nation was a group of people who shared a similar racial, cultural, or religious background that often included elements such as a common language. A State was a sovereign political entity, not simply a “territory…of a government.” By viewing the United States through that lens it becomes clear that modern definitions of nation and state are the product of centralization and the mischaracterization of the federal government as a “national government.”

Certainly no one in the founding generation would have argued that Virginia and Massachusetts possessed the same cultural heritage. Virginia, with its strong Cavalier tradition, and Massachusetts, with its Puritan or roundhead foundations, were clearly at odds during the seventeenth century and beyond. The two colonies may have been populated by white, English Christians and who shared a common language, “English,” but as David Hackett Fischer beautifully explained in his Albion’s Seed, the two cultures were diametrically opposed in almost every conceivable way. From dress to food to speech, Virginia Cavaliers and Massachusetts Yankees were in many ways two separate nations, not simply separate cultures. The “shining city upon a hill” Puritans and their decedents never let Southerners forget their differences, nor did Southerners want to be lumped together with self-righteous Yankees. William Berkeley, the dominant figure in Virginia during the seventeenth century, despised Puritans and fought against them in the English Civil War. Later American sectionalism was little more than an explicit recognition of cultural differences and the existence of separate nations in North America dating to the early days of English settlement.

Adding to this American cultural cornucopia were the Celts, the Quakers, American Indian tribes, and African slaves, groups that had interesting and culturally significant contributions to the fabric of their respective regions as well. Thus, America in the colonial period was “multicultural” in a way that extended beyond race or religion. Western civilization and the English tradition dominated, but separate nations blotted the North American landscape. One of the most respected American historians on slavery, Eugene Genovese, wrote this about American culture in his Roll, Jordan, Roll: “Blacks and whites in America may be viewed as one nation or two, or as a nation within a nation, but their common history guarantees that, one way or another, they are both American.” This statement accentuates the point that the phrase “American nation” is a rhetorical fabrication of the last 150 years of American history.

This was not lost on the founding generation. John Adams once wrote that, “I expressly say that Congress is not a representative body but a diplomatic body, a collection of ambassadors from thirteen sovereign States….” Each state had its own political and cultural life and each was “sovereign.” Robert Yates, writing as Brutus in 1787, observed that “In a republic, the manners, sentiments, and interests of the people should be similar. If this not be the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other.” If applied to the United States, Yates concluded that:

The United States includes a variety of climates. The productions of the different parts of the union are very variant, and their interests of consequence, diverse. Their manners and habits differ as much as their climates and productions; and their sentiments are by no means coincident. The laws and customs of the several states are, in many respects, very diverse, and in some opposite; each would be in favor of its own interests and customs, and, of consequence, a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care of decision, but would be composed of such heterogeneous and discordant principles, as would constantly be contending with each other.

Of course, there were “nationalists” in the early federal period, but even they often understood that if the United States contained several nations rather than one, it would be better to separate than to consolidate. Gouverneur Morris, one of the most important “nationalists” (and womanizers) of this era, made the following statement during the Philadelphia Convention of 1787, “But, to come more to the point – either this distinction [between the Northern and Southern States] is fictitious or real; if fictitious, let it be dismissed, and let us proceed with due confidence.  If it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other.  There can be no end of demands for security, if every particular interest is to be entitled to it.” And George Washington, often showcased as a fine example of the early “nationalists” and the glue that held the States together, said this about the people of Massachusetts in the early days of the War for Independence, “There is no nation under the sun that pays more adoration to money than they do.”

States’ rights and the Tenth Amendment to the Constitution were intended to protect this cultural distinctiveness, and secession was often seen as the only hedge against aggression from other States or sections. This is why the three most powerful States in 1788, Virginia in the South, New York in the mid-Atlantic, and Massachusetts in the North, considered an explicit recognition of States’ rights an essential condition for ratification of the Constitution. Of course, those who champion States’ rights and decentralization are often accused of preferring “Balkanization” over the blessings and security of “one nation.” If the federal government followed its limited, constituted authority, such “Balkanization” would not be necessary, but hardly anyone in the founding generation would have agreed to a system of central government that currently exists in the United States. As Morris said in 1787, it would be better to separate than to subject one nation to the cultural imperialism of another State, section, or nation. Modern Americans have never been taught that lesson.

 

Originally published on LewRockwell.com November 26, 2009

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers and a history professor at Chattahoochee Valley Community College in Phenix City, AL.

You can find more from Brion McClanahan at http://www.brionmcclanahan.com/

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

October 20, 2014
by Dwayne Stovall
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Was the Bill of Rights Meant to Apply to the States? – Michael Maharrey

Last week we began examining the Bill of Rights. This week we will address a specific question: was the Bill of Rights intended to apply to the state governments?

Some people argue that it was. They concoct some interesting arguments based on “rules of construction” or approach it through various philosophies of rights and liberty they attribute to the founders. But there simply exists no founding era evidence that Congress or the state ratifiers intended for the protections included in the Bill of Rights to bind state governments. In fact, doing so would essentially create a federal veto over state laws, a massive expansion of central government authority – the exact opposite of the stated purpose of including a bill of rights.stateflagmapMost people have never read the preamble to the Bill of Rights. In fact, a lot of people don’t even know it includes one. The preamble makes the purpose of the Bill of Rights very clear.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The words “its powers” clearly refer back to the Constitution. The Bill of Rights was intended to “prevent misconstruction or abuse” of the Constitution’s powers as exercised through “the government” – the federal government. Notice the word government is not plural. The Bill of Rights makes no mention of state governments. In fact, the state ratifying conventions had no intention of restricting their state’s own powers. They already had state constitutions to do that job.

Imagine if somebody from England went before a British court and argued that the Second Amendment gave him the right to own a gun. The judge would laugh him out of the courtroom. The Bill of Rights does not govern in England. Despite the fact that an Englishman has an unalienable right to self-defense, the U.S. Bill of Rights does not prohibit the British government from infringing upon it. England exists as a separate political sphere. A state is no different. Although it has entered a union with the other states as defined by the Constitution, it remains an independent political society, giving up only the powers delegated. Absent specific delegation of power to the federal government authorizing it to police states and force them to abide by its understanding of rights, the power simply does not exist.

Chief Justice John Marshall was an unapologetic advocate for national power, but he explains the limits of the Bill of Rights beautifully in his opinion in Barron v. Baltimore.

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

Interestingly, when James Madison introduced the Bill of Rights to Congress, he proposed that the equal right of conscience, freedom of the press and the right to a trial by jury should also apply to the states.

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law, &c.” were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controuled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. 

Congress explicitly rejected applying those particular amendments to the states, making it abundantly clear that the Bill of Rights was only intended to limit federal power.

Many will agree with this analysis, but argue that the 14th Amendment changed all that and incorporated the protections included in Bill of Rights on state governments. Next week we will examine the doctrine of incorporation in detail.

About Michael Maharrey

Michael Maharrey is the executive director of OffNow and the national communications director for the Tenth Amendment Center. He is the author of ‘Our Last Hope – Rediscovering the Lost Path to Liberty.’

You can reach Michael at  http://www.michaelmaharrey.com/

October 13, 2014
by Dwayne Stovall
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The Bill of Rights – Michael Maharrey

I was originally planning on looking at the Second Amendment this week, but it occurred to me that we should examine the Bill of Rights more generally before digging into specbill of rightsific provisions.

Adding a declaration of rights to the Constitution was a condition of ratification for several states, and five state ratification documents included specific proposed amendments. For instance, the Virginia ratifying instrument listed 20 proposed provisions for a bill or rights.

The most important thing to understand is that the Bill of Rights does not create rights, or give rights to anybody. It merely prohibits the federal government from taking action that infringes on preexisting rights.

Many argued that a bill or rights was necessary to place further limits on federal power. Patrick Henry chastised fellow delegates for considering a Constitution without a bill of rights during a speech at the Virginia ratifying convention on June 16, 1788, pointing out that the state constitution included a declaration of rights.

If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw — government that has abandoned all its powers — the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights — without check, limitation, or control. And still you have checks and guards; still you keep barriers — pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! 

But others argued a declaration of rights was unnecessary because the federal government was already restricted to its enumerated powers. Alexander Hamilton stated this case in Federalist 84, even claiming enumerating rights could pose a danger.

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.

Those demanding a bill of rights won the day. In fact, were it not for the promise to add a declaration of rights, several states would likely not have ratified the Constitution at all.

James Madison kept the promise and proposed 39 amendments to Congress on June 8, 1789. He acknowledged the arguments asserted by those who believed a bill of rights unnecessary, but appealed to the House to keep the commitment made to those who approved the Constitution with the understanding that a declaration of rights would be forthcoming, saying, “It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures some things to be incorporated into the constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them.”

Madison went on to make it clear that a Bill of Rights was intended to further restrict the powers of the new government.

It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established.

Through debates in both the U.S.  House and Senate Congress rejected some of the proposals and combined others, ultimately submitting 12 amendments to the states for consideration.

On Dec. 15, 1791, Virginia became the 11th state to ratify 10 of those amendments, crossing the required threshold to make them part of the Constitution.

Next week we will continue looking at the Bill of Rights and answer the question: were they intended to affect the states?

About Michael Maharrey

Michael Maharrey is the executive director of OffNow and the national communications director for the Tenth Amendment Center. He is the author of ‘Our Last Hope – Rediscovering the Lost Path to Liberty.’

You can reach Michael at  http://www.michaelmaharrey.com/

September 30, 2014
by Dwayne Stovall
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The Nature of the Federal Government – By Michael Maharrey

To understand the extent of federal power, we must first understand generally what type of government the Constitution created.

During the Philadelphia Convention, many framers favored a strong national government. In fact, James Madison even proposed a federal veto on state laws. But as the convention wore on, delegates voted down proposals to create a centralized government one by one. The Constitution that emerged from the Convention created a federal government with a few, defined, enumerated powers.

The Philadelphia Convention reveals much abArticle I.tifout the intent of the framers, but we find the true meaning of the Constitution in the ratification process. The people of states elected representatives to approve or reject the document. The debates in the state conventions illuminate the understanding of the Constitution at the time. In a letter to Henry Lee dated June 1824, Madison affirms this view of constitutional interpretation.

 I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

Many Americans misconstrue the ratification debates, assuming that those favoring the Constitution (the federalists) advocated for a strong, central government, while opponents (anti-federalists) wanted a weaker general government. In fact, virtually everybody agreed that the Constitution was intended to create a limited federal authority, leaving most power to the states. The debate revolved around whether the Constitution, as written, would create such a government. The federalists insisted that it would, while anti-federalist expressed deep fear that it would not.

Published in New York newspapers, the Federalist Papers laid out key federalist arguments and give us a strong sense of how proponents “sold” the Constitution. Madison made the clearest case for the Constitution’s limited nature in Federalist 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. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.

While the Federalist Papers shed valuable light on arguments used to “sell” the Constitution to the people, the records of the ratification debates prove even more important and illuminating. Without exception, these debates record supporters arguing vehemently that anti-federalist fears of a powerful national government were unfounded. It was on this basis that the Constitution was ratified. Had the people believed the federal government would morph into the all-powerful entity we see today, they would have soundly rejected its ratification.

In fact, several state ratification documents make clear delegates believed they were approving a federal government with few, defined powers. Consider the New York ratification document.

We, the delegates of the people of the state of New York…Do declare and make known…That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same.

St. George Tucker summed up how to view federal power in View of the Constitution of the United States, the first extended, systematic commentary on the Constitution published after ratification.

The powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively or individually, may be drawn in question.

So, when considering federal power today, we should always begin with the premise that it was meant to remain limited.

 

About Michael Maharrey

Michael Maharrey is the executive director of OffNow and the national communications director for the Tenth Amendment Center. He is the author of ‘Our Last Hope – Rediscovering the Lost Path to Liberty.’

You can reach Michael at  http://www.michaelmaharrey.com/