REAL CONSTITUTIONAL STANDARD
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
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
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.
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
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
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.
TAYLOR DECONSTRUCTS JOHN MARSHALL
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 desmesne, 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.
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.
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.
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"
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.
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
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.
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
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).
"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).
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.
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
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.
ALL HOPE, YE WHO ENTER HERE
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.
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
as John Taylor put it:
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).
Right on the mark. One hardly needs the overcooked Marxist
theory of ideology, when Taylor is at hand.
- John Taylor, Construction Construed and Constitutions
Vindicated (Richmond: Shepherd & Pollard,
1820 [reprinted: New York: Da Capo Press, 1970]).
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