The Founding Fathers of Constitutional Subversion

0:00These four presentations are going to be brief summaries of papers that were delivered at a conference that Don Livingston organized last year under the Abbeville Institute, which is his organization, and they've been turned into a book, and that's the cover of the book that's going to be published in the fall, right, Don, in this fall, Rethinking the American Union. And so you want to put that on your list of books to buy, I guess. And so what I'm going to talk about, founding fathers of constitutional Conversion is how from the very beginning of the American Republic, there was a very powerful group of men who wanted to simply subvert the Constitution and create a system of unlimited government. And they were led by Alexander Hamilton, one of the co-authors of the Federalist Papers.

0:49And so I guess one of the main points I make in this paper is that it was doomed from the beginning. of Limited Constitutional Government was whittled away at as soon as the ink was dry, literally, on the original constitution. And John C. Calhoun had this figured out. In his great book, A Disquisition on Government, here's what he said. This was published in 1850. He said, it is a great mistake to suppose that the mere insertion of provisions to restrict and Limit the Powers of Government without investing those for whose protection they are inserted with the means of enforcing their observance will be sufficient to prevent the major and dominant party from abusing its powers.

1:35The party in possession of government will always be opposed to any and all restrictions on its powers. They will have no need of these restrictions and would come in time to regard these limitations as Unnecessary and Improper Restraints and Endeavor to Elude Them. It is sheer folly to suppose that the party in possession of the ballot box and the physical force of the country, the military force, could be successfully resisted by an appeal to reason, truth, justice, or the obligations imposed by the Constitution. He predicted that the restrictions of government and power would ultimately be annulled and the government be converted into one of unlimited powers. And of course he was exactly right.

2:22And now where did Calhoun get these ideas? This was 1850, he was warning about this and he was writing about the need for some sort of system of the people of the states to interpret the constitution and to have a say in constitutionality rather than leaving it up to the central government itself. Well, he got these ideas because he had been involved in politics since 1811 and he had been observing his colleagues in the Congress, the United States Senate, he was vice president, he was secretary of war, you know, for a while. And so he spent his whole adult life in politics and Murray Rothbard considered Calhoun to to be one of the greatest American political philosophers, if not the best American political philosopher of all time.

3:14And so what did Calhoun know? Well, he knew all about the machinations of Hamilton and his fellow nationalists. Hamilton, when Hamilton got to the Constitutional Convention, he laid out his plan. His plan was the plan of the nationalists who were headquartered mostly in Philadelphia, in New York and New England, and they wanted a permanent president who would appoint all the governors who would have veto power over all state legislation. So there would be no state government at all, really, it'd be all power would have been centralized at the center. And they wanted that in order to adopt British-style mercantilism as an economic system. They knew that they couldn't have a system where New York could have 50 percent tariffs on imports, but South Carolina could have 10 percent tariffs on imports.

4:02The Trade of the World would go into Charleston and not New York, so they needed a centralized governmental power and they needed a bank modeled after the Bank of England, they said, Hamilton said, and of course he got that when he got the Bank of the United States, and they wanted a big public debt and they wanted corporate welfare, what we today call corporate welfare. They called it an internal improvement subsidies. It was Hamilton who coined the phrase the American system to describe this economic system. And so these two things, centralized governmental power and the British-style mercantilism were at the heart of what the nationalists so-called wanted, the Federalist Party basically. And so as soon as the ink was dry on the Constitution, Hamilton denounced it as a frail and worthless fabric because he didn't get his way.

4:50We didn't get a king, a permanent president who would appoint all the governors as his puppets. and so he went to work destroying the Constitution. In his great debate with Jefferson over the constitutionality of the Bank of the United States, the original central bank, he invented the notion of implied powers of the Constitution. Jefferson said there's no, the delegated powers do not include a central bank. The Constitutional Convention debated this and rejected the idea of a national bank and Hamilton said well you have to read between the lines and there are implied Applied Powers. And that argument, they even call it a doctrine now, a doctrine of implied powers. Hamilton was the first to bastardize the general welfare clause of the Constitution, to expand it to mean not just things that would benefit everyone, but special interest programs.

5:45He perverted the commerce clause. He was probably the very first lawyer to expand the commerce clause, which was originally

6:22To make the claim that the states did not ratify the Constitution, the Constitution and the Federal Government somehow created the states, which is exactly backwards of actual history and is illogical as well. You know, the union of two things cannot be older than the things themselves. That would be like saying a husband and a marriage could be older than either a husband or wife, and so that's just illogical and ahistorical. and so on. But he made that argument and that argument was repeated for decades thereafter that the central government had all sovereignty and the people of the states did not. And so there's a historian named Clinton Rossiter who taught at Cornell for many years. And Clinton Rossiter said this, he said that Hamilton would have affixed certain certificate of constitutionality to every last tax.

7:12Hamilton took a large view of the power of Congress to tax because he took a large view And then he says, having failed to persuade his colleagues at Philadelphia of the beauties of a truly national plan of government, and having thereafter recognized the futility of persuading the legislature of three-fourths of the states to surrender even a jot of their privileges, Hamilton set out to remold the Constitution into an instrument of national supremacy, to remold the Constitution with lawyerly subterfuge, not through constitutional amendments. ," but through reinterpretation of the Constitution. His view was the opposite of Jefferson's. Jefferson was a strict constructionist, whereas Hamilton thought that the Constitution could potentially be used as a rubber stamp of approval of anything the government ever wanted to do.

8:03That, of course, is what it is now. That's what it's become now. As Judge Napolitano pointed out in one of his books, that the Supreme Court did not and how to rule a single federal law unconstitutional from 1937 to 1995, rubber stamp of everything. And here's Clinton Rossiter who's celebrating this. He says, with the aid of the doctrine of implied powers, Hamilton converted the powers enumerated in Article 1, Section 8 into a firm foundation for whatever prodigious feats of legislation any future Congress might contemplate. So Article 1, Section 8 was supposed to be a restriction of the powers of government. Hamilton's rhetoric turned it into unlimited government, properly interpreted by slick lawyers like himself.

8:56So this subterfuge continued. The next most important person that I write about in this paper, and I don't have time to really get into it in a lot of detail, is John Marshall, the Chief Justice, who was appointed by John Adams at the very last day of the Adams administration, and he was the the Chief Justice for over 30 years, and one of the things he did was to invent out of thin air the notion of judicial review. Those words do not exist in the Constitution, and this essentially meant review of federal legislation by John Marshall. John Marshall will tell us all what's constitutional and what's not. He was the Chief Justice after all. And also In a case called Martin vs. Hunter's Lisey, Marshall also invented out of thin air the notion that the federal government had a right to veto state court decisions.

9:45That's not in the Constitution either, but so you had the federal government taking over the state courts at the same time. Marshall also repeated Hamilton's bogus theory that somehow the nation created the states, the whole people created the states somehow. Now, it wasn't the states that ratified the Constitution creating the central government. And here's what he says, in the name of the people, the federal government claimed the right quote, to legitimately control all individuals or governments within the American territory. All individuals or governments. And that was not the American system. The American system was the states in Article 7 of the Constitution. They ratified the Constitution, not the other and the Other Way Around, and so Marshall went a long way in adopting Hamilton's implied powers idea and of course his famous decision of McCulloch versus Maryland where he ruled that the central bank, the bank of the United States was constitutional, that's where he almost used verbatim Hamilton's opinion on the constitutionality of the bank that he

11:25This is what our liberties would be. In fact, the Jeffersonians thought that this was the most absurd idea in the world, that you would fight a revolution and then hand over everyone's liberty into five government lawyers with lifetime tenure, put it all in their hands. What kind of sense would that make? How stupid could they have been to have done such a thing? Why would that be better than a king, as far as that goes? The next co-conspirator was Joseph Story, the Supreme Court Justice, and he wrote a famous book called Commentaries on the Constitution, which Clinton Rossiter said should have been called Commentaries on Alexander Hamilton's Commentaries on the Constitution.

12:16And this was a book that went a long way to spread this idea that the central government and his supreme Hamiltonian idea that we should have sort of a king-like president who would appoint all the governors and that the states should be eviscerated of their powers and we should have a centralized monopolistic state. And just among some of the things he said in this, you know, it's a big long book and I've critiqued it, but he said, secession of a single state would mean dissolution of the government. Well, how would that happen if Alabama seceded? When Washington, D.C. disappeared, how many people think that would happen? When the 11 southern states seceded during the war to prevent southern independence, the federal government proceeded to fill the largest army in the history of the world up to that point for four years.

13:05It didn't disappear. It grew. And so, you know, that was kind of nonsense. Another thing Story said, to give you an example of what's in this book, is that the original The general compact of society in no instance has ever been formally expressed at the first institution of a state. That is, there was never any agreement by the citizens of any state to always and forever be obedient to that state. And so he recognized that, that there was never any agreement to be obedient to whatever the state does, even if it's done in the name of the majority or whatever. And then he goes on to say, however, every part should pay obedience to the will of the whole. And then he says, who is to define the will of the whole?

13:50The government. He doesn't say that there should be any plebiscite or any vote or anything like that. The government will tell us what the will of the whole says, and then we must be obedient to that. That's Joseph's story. And then he goes on to say, the majority, and he's not talking about the majority of of the People. He's talking about the politicians' interpretation of what they think the majority will is. He says, the majority must have a right to accomplish that object by the means which they deem adequate for the end. The will of the majority of the people is absolute and sovereign, and here's the creepy part, limited only by its means and power to make its will effectual. So the only limits are the limits of violence, you know, the limits of Money and Credit, The Theory of Money and Credit, The Theory of Money and Credit, The

15:05and the French Revolution. He also expressed the view that if government becomes tyrannical, the only legitimate resort should be, quote, the proper tribunals constituted by the government, which would appeal to the good sense and integrity and justice of the majority of the people. So rely on elections. Okay, well, we'll just rely on elections, and don't let the people have anything to do with it. Okay. I will repeat John Marshall's fable that the so-called Supremacy Clause of the Constitution made the Federal Government supreme over all matters, but all the so-called Supremacy Clause did is that there were delegated powers in Article 1, Section 8. There are 17 things there. The Federal Government is supreme in those, the foreign policy, for example, but that's it. The 10th Amendment says all else is reserved to the people and the states, And this has been perverted year after year after year by people who think that because it's called the Supremacy Clause, the federal government is supreme in everything.

16:12But no, it only has precedent in those things that are, those powers that are delegated to it in Article 1, Section 8. Okay, but that lie was spread by a story also. I'll go on. Daniel Webster was another one. Daniel Webster had a famous debate with Robert Hayne, a senator from South Carolina, on the Constitution. And this is online. You can read stories. The book is online. The commentary is on the Constitution. And the Webster-Hayne debate is also online, if you want to read it. And he was a very prominent person, of The Constitution of the United States confers on the government itself the power of deciding ultimately and conclusively upon the extent of its own authority.

17:13So he declares that if there are going to be limits on the government authority, it's the government itself that determines what those limits are to be. That was never the American system. It was always supposed to be the people of the states and political communities organized at the state and local level would confer this power. And Senator John Taylor of Virginia, he wrote a book on the Constitution based on the notes that were taken by Robert Yates, who was a New York Supreme Court Chief Justice who attended the Constitutional Convention. and after Yates' death his notes on the convention were published by his wife and Taylor, John Taylor cited these and he said one of the things he said was the constitution could never have designed to destroy liberty by investing five or six men installed for life with the power of regulating the constitutional rights of all political departments and that's what Webster was saying that we should just leave it up to the

18:12government itself to determine what the limits of its powers are He also said, quote, one of two things is true, either the laws of the union are beyond the discretion and beyond the control of the states, or else we have no constitution or general government. So either the people of the states are totally out of it and have no control over the central government, or we have no government. So if you want to have a government, you have to give us monopolistic power. And this is the kind of propaganda. He also, the bottom line was, trust us. He said this, you know, so what if we have tyranny in the future? What do we do about it? He says this, quote, trust in the efficacy of frequent elections, trust in the judicial power, trust us lawyers, trust us politicians. That's what he's saying.

19:05And so you hear old John Calhoun is reading this and he probably didn't know whether to laugh or cry reading of trust in lawyers and the lawyers who beginning with Hamilton went diligently at work destroying the constitution trust in them to limit the tyrannical proclivities of government that's not likely to work that's why people like Calhoun thought nullification and secession in concurrent majorities and other vehicles like this were necessary so that the people could interpose for themselves and not just rely on the good graces of the Daniel Websters and the Joseph of Stories of the World. And so the point of this paper, really the main point, is to show how from the very beginning the Constitution was in the minds of some people a dead letter, the Hamiltonian segment of American polity, and they worked very diligently for many years.

20:04And Stories, Commentaries was really the book that the northerners, northerners understood to be the theory of the Constitution prior to the American Civil War, as it's called. Whereas most of the people in the South understood the Jeffersonian vision of states' rights and federalism as far as that's concerned. And so my time is about up and that's my story for now. Thanks. Thank you very much.