As it frequently happens, last night was one of those nights I simply could not fall asleep. After hours of tossing and turning I decided to get up and read as that sometimes helps settle my mind, allowing me to fall asleep. Usually, unless I’m reading a new book I normally just grab something off the shelf and let it fall open to wherever it may and then start reading. That’s what I did last night. The Book I chose was a collection of writings of the Founding Fathers from prior to the American Revolution up through the ratification of the Bill of Rights.
As I said, I normally let the book fall open to wherever it may and then begin reading. Last night it fell open to a letter written by Richard Henry Lee, (Great Uncle of Confederate General Robert E. Lee), to the Honourable George Mason, (delegate to the Constitutional Convention). The letter was discussing Lee’s concerns about the newly drafted Constitution and stated, in part, “I have waited until now to answer your favor of Septr. 18th from Philadelphia, that I might inform you how the Convention plan of Government was entertained by Congress. Your prediction of what would happen in Congress was exactly verified—It was with us, as with you, this or nothing; & this urged with a most extreme intemperance— The greatness of the powers given & the multitude of Places to be created, produces a coalition of Monarchy men, Military Men, Aristocrats, and Drones whose noise, impudence & zeal exceeds all belief—Whilst the Commercial plunder of the South stimulates the rapacious Trader. In this state of things, the Patriot voice is raised in vain for such changes and securities as Reason and Experience prove to be necessary against the encroachments of power upon the indispensable rights of human nature….As it is, I think ’tis past doubt, that if it should be established, either a tyranny will result from it, or it will be prevented by a Civil war…”
Just a few short days later George Mason would deliver his objections, and reasons why he refused to sign the newly drafted Constitution. Mason was not alone in opposing this new system of government as created by the Constitution. Few people today have actually taken the time to research the proceedings which produced the Constitution. Therefore they are not aware that it was not as unanimously passed as they believe.
Just before the signatures at the bottom of the original document, the Constitution states: “Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America.”
At first that sounds like a statement of unanimous support, but upon closer examination of the facts that is not the case. Rhode Island refused to even send delegates to the convention even though eventually they later voted for ratification. Patrick Henry, whose famous speech Give Me Liberty or Give Me Death, refused to attend saying that he smelled a rat; meaning he felt the delegates where going to produce a monarchy, or limit the liberty they colonists had fought so hard for during the Revolutionary War. As stated, George Mason refused to sign the document, as did other notable Founders such as Elbridge Gerry and Edmund Randolph.
From the writings of Elbridge Gerry, we find that he felt “…that some of the powers of the legislature are ambiguous, and others indefinite and dangerous; that the executive is blended with, and will have an undue influence over, the legislature; that the judicial department will be oppressive; that treaties of the highest importance may be formed by the President, with the advice of two thirds of a quorum of the Senate; and that the system is without the security of a bill of rights . These are objections which are not local, but apply equally to all the states.”
But it is the comments of George Mason which I would like to focus your attention on now. In his declaration of opposition to the proposed Constitution Mason stated, “There is no declaration of rights; and, the laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights in the separate states are no security…. This government will commence in a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy or a corrupt oppressive aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”
Mason furthermore declared, “The judiciary of the United States is so constructed and extended as to absorb and destroy the judiciaries of the several states; thereby rendering laws as tedious, intricate, and expensive, and justice as unattainable, by a great part of the community, as in England; and enabling the rich to oppress and ruin the poor.”
These men did not oppose the idea of a federal government, they only wanted to ensure the survival of the states as independent entities, and more importantly, ensure that the new federal government did not overstep its limited authority by encroaching upon the powers reserved to the state legislatures.
That is the purpose for which the Tenth Amendment was later written, and ratified by the various states. It is therefore important that you read it, and understand what it means. The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
When drafting the Constitution the Founders were very concise when they granted the powers of legislation to the Congress. Those powers can all be found in Article 1, Section 8 of the Constitution. Yet there were also implied powers found in that same Section under the ‘Necessary and Proper’ clause. But this was not a specific grant of power to the new government, only a grant of power that gave them the authority to pass the laws needed to ensure the specified powers could be carried out.
Let me give you an example of how that was supposed to work. Let’s say I give you permission to build a house. I don’t specify that you may purchase lumber, nails, roofing materials, or any of the other materials needed to build a house, just that you may build a house. The power to purchase the necessary materials to accomplish the job are ‘implied’ powers.
I can’t say for certain, but I would be willing to bet that these ‘implied powers’ are the ones Elbridge Gerry was referring to when he said that some of the powers of the legislature are ambiguous, indefinite, and dangerous.
If you were to take the time to read any of the Federalist and anti-Federalist writings prior to the ratification of the Constitution you would find that much of the rhetoric on both sides concerned the possibility that the new government would encroach upon the states authority. The Federalists claimed that it wouldn’t, while the anti-Federalists weren’t so sure unless a Bill of Rights were included to guarantee the states would be protected against such an encroachment. Hence the Tenth Amendment.
It wasn’t even a decade into our new system of government that a Federalist president, John Adams, signed the Alien & Sedition Acts, which many felt was an overstepping of federal authority. Among those who opposed these Acts were Thomas Jefferson and James Madison. They were so against these Acts signed by president Adams that, then as acting Vice-president Jefferson wrote the Kentucky Resolutions speaking out against the usurpation of non-delegated powers by president Adams.
In Section one of the Kentucky Resolutions, Vice-president Jefferson wrote, “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Can you imagine today, a Vice-president drafting and publishing a document opposing the actions of a sitting president? Neither can I. But such were the sentiments of many alive at the time, that the federal government was one of limited powers, and that all remaining powers were held by the various states, or the people. That is not a common sentiment today, with most people willing to sit back and allow their government to enact laws which are not specifically mentioned in the Constitution. The only justification they have is that they may have been ruled as being constitutional by the Supreme Court. But then isn’t that one of the very things George Mason was afraid of, that “The judiciary of the United States is so constructed and extended as to absorb and destroy the judiciaries of the several states; thereby rendering laws as tedious, intricate, and expensive, and justice as unattainable, by a great part of the community…” It was this very judicial body that troubled Mason so which later would grant the Legislature an almost limited power in its ruling on the case of Marbury v. Madison.
Years later, regarding that very case, Thomas Jefferson would write, “This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversions on its being merely an obiter dissertation of the Chief Justice … . But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but … The ultimate arbiter is the people ….”
Therein lies the dilemma, if the representatives of the people no longer adequately, or loyally, represent them, what recourse remains to the people when it comes to obtaining justice against a government which has overstepped its authority?
Alexander Hamilton, even though he supported a much stronger central government than did men like Jefferson and Madison, himself wrote “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” Federalist 33
Hamilton furthermore declared in Federalist 28, “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense…”
And what might that right be? To answer we must turn to the document which set our nation free from a tyrant, the Declaration of Independence were we read, “…whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government,…”
Nearly 75 years later, a certain young Congressman named Abraham Lincoln, stood on the floor of the House of Representatives and said, “Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right…”
What do you think he meant by ‘rise up and shake off’? I don’t know about you, but it certainly sounds to me like he meant to rise up and declare that the existing government no longer held any authority over them. After all, isn’t that the very premise upon which our nation was founded, and is contained within the Declaration of Independence?
But we all know that a mere 13 years after Lincoln made that statement he reversed course, sent the armies of the federal government against their neighbors to the South who had exercised that very right he proclaimed to be ‘sacred.’
Upon the end of the, so-called, Civil War, Lincoln, once and for all, dealt a death blow to the right and the power of the states to stand up against federal encroachment upon their authority. It has all been downhill ever since.
History is written by the victors and the historians write that Abraham Lincoln emancipated the slaves and saved the Union, while the South were the aggressors and losers of a long, bloody, revolt against their government. When the truth of the matter is that all they wanted was to be left alone, for the federal government to limit its actions to those powers specified by the Constitution, while allowing the states to deal with the issues regarding its internal affairs.
After all, isn’t that what they promised us in the debates regarding the ratification of the Constitution? In Federalist 14 James Madison promised, “… it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.”
While later in Federalist 45 Madison would write, “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 last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the 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.”
That’s all the South wanted, to be left alone to manage their own affairs. But instead, the armies of the government, under the command of Abraham Lincoln, killed 1 out of every 4 men in the south to prevent them from enjoying that right.
That’s all I want today, is for government to stay out of my life. As long as I am hurting no one else I should not have to worry that they are listening in on my phone calls, that they are telling me I can no longer use incandescent light bulbs in my home, that I may or may not use guns to protect myself, my family, or my belongings.
So, I ask you, and be honest, who was right? Was it Madison and the others who felt that we could govern ourselves, while protecting our rights and our liberty? Or was it Mason and others who felt that under our Constitution our government would eventually end up tyrannical?