November 24, 2001
I now proceed to answer my own question: If the events of the last few weeks are any guide, then of course there is no Constitution. This should hardly come as a surprise to those high-minded liberals who have been hawking the virtues of a flexible, plastic, evolving Constitution for many decades. Yet, some of them, out of sheer sentimentality as regards the First Amendment, would now draw back from the militarist abyss lately reopened by the current administration in the name of Homeland Security.
Such liberal dissenters have not attended the many lectures offered by Neo-Conservative spokesmen like Jay Winik, the gist of which is that we can give up many of our civil liberties for the duration of the Emergency and then get them back again, only slightly wrinkled and stained. Since other low-minded Neo-Con spokesmen have announced that the Emergency may go on for decades, the exact date at which this fairy-tale ending the return of liberty will occur is left hanging in the Hegelian breeze. Perhaps the Neos should coordinate their propaganda a bit more tightly.
The idea that the Constitution exists in the realm of "becoming" had great appeal for late 19th Century American intellectuals. Starting from Hegelian, Pragmatist, Instrumentalist, or post-millennialist Protestant premises, such folk could "find" a charter for their preferred programs in an ever-changing Constitution, whether the program was corporatism, socialism, or endless social therapy.
A stricter standard was of course possible. Such a reading was, in fact, quite common in the era in which the Constitution was written and ratified. As M. E. Bradford, Clyde Wilson, and other historians have stressed, the understandings of the ratifiers of the document are the key to the allegedly impossible determination of "original intentions." This is in stark contrast to Gary Wills, who believes that the secret opinions of Little Jamie Madison should guide us in these matters.
Wills claims, in effect, that Madison swindled the ratifiers, and that this Original Swindle justifies all later swindles by Presidents, Congresses, and Courts. One might beg to differ. Indeed, the original understanding decisively shaped by the propaganda of Madison, Hamilton, and Jay in the Federalist Papers was fairly straightforward. The Constitution was, on the reading "sold" by the Constitution's backers, a document which set up a few rules for the working of a general government for the common interests of the states. The Constitution would exist "between" the ratifying states; it was not set "over" them by a higher power.
Powers not enumerated were not granted, that is, they did not exist. The government created was therefore limited in scope and power; all other powers remained with the states or the peoples thereof. Amendments meant to nail this point down beyond all doubt were added.
It is true of course that, having gotten their way, the Federalists immediately tried to wiggle out of their commitments via the "sweeping clause," which states that Congress may make laws "necessary and proper" to carry out its powers. Hamilton and others found therein a whole new set of implied powers. Thus the swindlers, if such they were, revealed their real intentions rather early.
Even so, the ratifiers' understanding became doctrine for the Jeffersonian Republican movement and this was a federation-wide movement and not a peculiarly Southern one. It may be that Patrick Henry, an Anti-Federalist of note, was a better prophet in the Virginia ratification debates, than his opponents. Nonetheless, the strict-constructionist position that is, what the conventions thought they had agreed to had its merits.
A few weeks ago, not long after Everything Changed, Justice Sandra Day O'Connor stated, in effect, that US authorities and Courts might, during the emergency, have to decide cases more by the standards of the international laws of war than by the Constitution. This is a peculiar thing for a Supreme Court Justice to say, especially when the Courts are still in operation, no invading armies occupy any part of our demesne, and martial law has not been declared, as far as one can tell. It does suggest that we shan't be relying on her to apply the Constitution in future, if she ever has done.
What was ratified at the end of the 18th Century was a fairly simple text, long on procedure and short on moral theory something suited to being read narrowly, like a contract, rather than as "a charter of learning," as Robert Hutchins once grandly put it. There was little need for creative writing by judges and lawyers, who might imagine they were reinventing the common law or breaking new ground in social theory.
Alas, the Supreme Court took up creative writing rather early. John Taylor of Caroline (that is, of Caroline County, Virginia), the most hard-core theorist of Jeffersonian republicanism, emerged as a very perceptive critic of John Marshall's jurisprudence. In Construction Construed and Constitutions Vindicated (1820),1 Taylor got to the heart of the matter.
Taylor utterly rejected the European, international lawyers' notion of "sovereignty," on which so much of Marshall's deductive structure rested. Sovereignty was an attribute of God, "sacrilegiously stolen" and "impiously assumed by kings" (p. 26). The American Revolution had specifically "endeavored to eradicate [this idea] by establishing governments invested with specified and limited powers" (p. 28).
Thus Taylor rejected the notion that there is some thing called "sovereignty" which is an inherent attribute of states, a thing whose "powers must be boundless" (p. 31), as a source of endless mischief. American constitutions reflected a belief in "self-government" rather than sovereignty (p. 37). At most, we might lacking a fitting substitute use the latter word in reference to the independence of the states from one another, except in their federal relations, and with reference to the independence of those states and their federation from foreign control. There were no grand deductions to be made from such a usage.
The sheer radicalism of Taylor's outlook is lost on most commentators, who wish to force him into some residual category like "Southern agrarian reactionary." They thus fail to spot resemblance between Taylor's thought and that of such thoroughgoing classical liberals as Jean-Baptiste Say, Frederic Bastiat, or even Gustave de Molinari. For such thinkers, coherent societies preexisted states. Their institutions, including property, were not gifts of the state, but instead, states, where they existed, were meant to protect those institutions. If there existed a final power anywhere, it rested with actual peoples, and it was hardly "boundless" since it had to do only with provision of security.
Taylor is quite amusing as he carves up Marshall's high-toned deductions from the implications of sovereignty with devastating linguistic analysis. On issues which presently engage us, we can get the flavor of Taylor's views from these excerpts:
"The rights of declaring war, and of creating corporations or granting exclusive privileges, as considered by the writers upon the laws of nations, were rights of sovereignty; but the case of war is specially provided for by the federal constitution, because the federal government, as having no sovereignty, could not otherwise have declared it.... As the powers of making war and peace were necessary, it became necessary also to provide for them, not as emanations [!] from the principle of a sovereignty in governments, but as delegated powers conferred by the social sovereignty, or natural right of self-government" (p. 280; i.e., the right belonging to the several peoples of the states).
Further: "No powers in relation to war are derived from the old doctrine of a sovereignty in governments under our system; and none can be justly inferred from the conclusions of the writers upon the laws of nations, deduced from that old doctrine" (p. 280). And even more to the point: "As the laws of nations cannot deprive congress of any power with which it is invested by the Constitution, so they cannot invest congress or any other department, with any power not bestowed by the constitution" (p. 281, my italics).
Taylor's campaign against deduction from unbounded, inherent sovereignty told, of course, against all manner of progressive initiative federal mercantilism, road building, national banks, and more and not just against abuses attendant on war. If Madison swindled our forebears, some of them, Taylor included, nevertheless countered with a plausible reading based on what Jamie and his allies promised that the Constitution meant.
For Taylor, the question was "whether these laws of nations or our constitutions have delegated powers to our political departments" (p. 282). It is still a good question. Don't expect much help from Justice O'Connor, however. From where the nine Delphic Oracles sit, these questions were long ago decided by Lincoln, Wilson, FDR, and their lesser successors.
On the basis of two centuries worth of bad precedents, the federal apparatus (or Dingsbums in German) is sovereign in itself. Relax. We can still rely on the protections afforded by international law. Hang on maybe not. The record of the federal apparat has not been altogether outstanding in that arena either.
I have answered my own question. There is no constitution. There used to be one; but even at its birth, competing theories were offered as to what it meant. The worse theory won. Due to some sort of cultural lag, a few touching practices and forms remain from the original model. That is some small comfort, I suppose.
Meanwhile, the Courts and the other political departments will keep up the pretense of interpreting the "living Constitution," which, however absurd the concept may be, is a key element in whatever legitimacy they still retain. Emanations and penumbras will pile up to the heavens. One doubts that any of this will do a damned thing for our remaining freedoms.
Or, as John Taylor put it:
"When I read those [arguments] extracted from the words ‘sovereign, supreme, sphere, paramount, necessary and convenient,' I thought I saw the end of the sound revolutionary good sense by which our governments were constituted, as Rome saw puns and quibbles substituted for the masculine eloquence which preceded the age of Augustus. It seemed like extracting poison from vipers, under an opinion that it would be medicinal. If I were asked, how has it happened that men in power can inveigh against, oppose, support, and practice the same maxims? I should reply, by artificial phraseology.... And what is this artificial phraseology? It is the vocation of stripping evils of unseemly attire in order to dress them more handsomely, or of subjecting the federal constitution to the needles of verbal embroiderers, in obedience to the saying, ‘the tailor makes the man'" (pp. 200-201).
Artificial phraseology. Right on the mark. One hardly needs the overcooked Marxist theory of ideology, when Taylor is at hand.
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