Getting Back to the 'Real' Constitution -- Fagettaboutit

by Kirkpatrick Sale
Oct. 29, 2010

There’s much talk these days, particularly by the Tea Party types, about getting back to the “real” Constitution, forcing the Obama government to honor the “original intent” of the Founding Fathers, and “understanding the Constitution through the eyes of its creators,” as one contributor to the Tenth Amendment Center recently put it. That center, in fact, is dedicated to, and attracting a growing following for, a rigid interpretation of that amendment reserving to the states the powers not expressly given to the Federal government.

And along with it in the last few years has grown up a Constitution Party that has the idea that the nation’s problems can be solved by “a renewed allegiance” to the Declaration of Independence and the Constitution and hence a return to “limited government.” The problem with current officials of both parties, as the CP see it, is that they “ignore their oaths to uphold the Constitution,” that is to say, the Constitution as originally written and used in the 18th century.

This would be a far different country, of course, if it paid an allegiance to the document of 1787 that the renegade Congress had come up with, in secret, that summer in Philadelphia, even along with its first ten amendments. But what all the critics who believe that going back to the original Constitution would forestall the kinds of forces that have led to the present bloated, overstretched, intrusive, and unwieldy government do not realize is that this is what it almost inevitably had to lead to.

Let’s wake up these “real Constitution” die-hards and the ardent “Tenthers” and tell them that it’s a waste of time to try to resurrect that document in order to save the nation – because the growth of government and the centralization of power is inherent in its original provisions. As the anti-Federalists were trying to say all along from the very beginning of the ratification process. Only when we get people today off this understandable but ill-fated track can we begin to open their eyes to the reality of our present peril: we have a big overgrown government because that’s what the Founding Fathers founded, and we won’t escape from it until we take the idea of secession as seriously as it must be taken.

Let’s look at some of the dangerous elements of the “real” Constitution.

It starts off with a phrase that, right there at the start, sounded alarm bells in those who, having experienced the powers of the individual states as sovereign states under the Articles of Confederation, saw that it was not to the states but to “we the people” that power would be given. “What right had they to say, We, the people,” cried Patrick Henry to the Virginia ratification convention, “instead of, We, the states?” He saw that the phrase gave power to an amorphous “people” whom the new government could define and use as it chose, bypassing and undercutting the states. If “the people” spoke through the Congress, it could willy-nilly ignore the individual states.

Which, indeed, is what happened, and Congress was cheerfully ratified in doing so by another centralizing branch of government, the Supreme Court. But the idea was never more egregiously used than when Lincoln denied that the states had any particular power, indeed denied that they were sovereign entities at all, and argued that all power rests with the people, who had created a United States and wanted it united. “Government of the people,” in other words, means that Washington can do whatever it damn pleases in their name.

And the anti-Federalists had warned of exactly that seventy years before. The framers of the Constitution, said Luther Martin, a delegate to the convention from Maryland, were crypto-monarchists whose “wish it was to abolish and annihilate all State governments, and to bring forward one general government…of a monarchical nature, under certain restrictions and limitations.” That was said in November 1787 – don’t say you weren’t warned.

But let’s go on with the faults of the centralizers’ Constitution. There is in Article I a bold statement that “Congress shall have the power to” and there follow some specifics about taxes and debts – and then “provide for the… general welfare of the United States.” Agree to that and you’ve agreed it can do anything it likes without check or rein, for what measure could not be thought to be enhancing the “general welfare”? James Madison, who had a hand in Federal enlargement elsewhere in the document, saw the danger here: “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of …in short, everything, from the highest object of state legislation down to the most minute object of police.” That is not what they had fought a war against the British monarchy for.

Not more than a few phrases away is the famous “commerce clause,” by which a Supreme Court, ever-willing to enhance the powers of the Washington establishment, managed almost from the beginning to enhance Congressional control over what the states would be allowed to do. Congress shall have the power, it reads, “to regulate commerce with foreign nations, and among the several states.” That would seem to mean that Congress could establish terms by which states could trade with each other, so that none would establish tariffs against any other – “a negative and preventive provision against injustice among the States themselves,” as Madison saw it, “rather than as a power to be used for the positive purposes of the General Government.”

But positive is what the clause became. The Supreme Court decided that practically anything that went on commercially within one state would have some kind of effect on all the others, in some way or other, and so government can regulate it; as early as 1828 it held that the government could regulate trade on the Hudson river for its entire length because some of it ran along New Jersey, and the monopoly New York state had given to Robert Fulton to run his steamboat it decided to be null and void because it affected New Jerseyans. Its reading of the clause became ever more expansive as time went on and by the New Deal it gave the government carte blanche to interfere in state business down to the level of a janitor’s salary and a farmer’s wheat crop.

And as if that wasn’t a sufficient interference in state business, the Founding Fathers wound up their Constitution with a clause that ringingly asserted that what they had just enumerated as the powers of the government – and any laws that they should subsequently pass “in pursuance thereof” – “shall be the supreme law of the land” and judges in the states better take that to heart. This “supremacy clause” was hotly debated at the time because it, like the other sections above, could be interpreted in such a broad way that the states would be powerless to act on matters of serious concern, and thus it was that when there finally came a slew of amendments that the people of the states demanded as checks on Federal power, one of the most important was the Tenth, asserting that Washington had only the specific powers enumerated in the Constitution and the states had jurisdiction in all else.

Which brings up the final deficiency in that Constitution, that Tenth Amendment itself. It seems clear that a great many serious people felt that when it said “the powers not delegated to the U.S….are reserved to the states…or to the people,” that this guaranteed a considerable sovereignty for the states. But the centralists agreed to it (and put it at the end of the Bill of Rights) because they knew that it was so unspecific, so merely rhetorical, that it was capable of any interpretation – and that a Supreme Court capable of giving itself judicial review over Congress (not enumerated in the Constitution) would be capable of finding that the powers delegated to the U.S. were pretty vast and those given to the states were few and limited in scope. As it so happened.

The Tenthers are fighting valiantly to reverse the 220 years in which that last item in the Bill of Rights has been emasculated and rendered effectively irrelevant, and they may even be gaining some attention, particularly in the states’ growing resistance to Obamacare. But it seems most unlikely that, with the other centralizing tools at their command, the Federal courts will give it much consideration.

And then when they finally see their beloved amendment in shreds, maybe then the Tenthers and other Constitutional-Firsters will begin to see that the U.S. Constitution, by the centralists, of the nationalists, and for the Hamiltonians, is not a document that will lead them to liberty and sovereignty. The only method for that, let us hope they finally realize, is secession.

Reprinted from The Middlebury Institute.

October 29, 2010

Kirkpatrick Sale [send him mail], scholar and prolific writer, heads the Middlebury Institute.

Copyright © 2010 Middlebury Institute