The US Constitution

0:00Well, first thing I want to talk about is that this is a federal, US constitution from beginning to end on all four sides is a federal constitution. So something has to be said about federalism. Federalism is a very important, to me, it's the most important political idea as far as liberty goes. Because it seems to me liberty has two dimensions. One is personal liberty. First, and that means maximizing choices. For my life plans, I want to be able to maximize choices.

0:44But the other is, I'm not just interested in maximizing choices, I want meaningful choices. Because if I just do the first, I've got Sartre in liberty, which is being in nothingness. What do I mean by meaningful choice? What I mean is, and this goes back to the talk on Hume, choice presupposes a cultural background, which is usually not acknowledged. It's part of that task, that pre-reflective order that we don't think much about. So when we make choices, we make them against a cultural background, which gives our life meaning and it's to maximize choice for the individual against that background.

1:32Now what's going to protect that background? Well, in a federal system, which is usually over vast territory, you have units, provinces, cities, states, whatever, and they are the Units that Provide Legal Protection for Whole Ways of Life. So we've got individual choices for individual life plans, and then we have whole ways of life of a people that cut across generations, whole ways of life cutting across generations. Now, in a federal system you have to have tolerance, first of all you have to be tolerant of People Who Are Going to Make Choices for Life Plans You Don't Like.

2:24But also, you have to be tolerant of hallways of life that are legally protected in the system that you don't like. And these hallways of life go on for generation after generation. Therefore, federalism is the most difficult system to maintain because it requires enormous civic virtue. You have to constrain yourself from suppressing this whole way of life, either because it's not in your interest or because you don't think it's morally correct. And the same with individual choices. So liberty, I think, has these two dimensions. One is individual liberty, the other I'll call corporate liberty. The corporate liberty, the whole way of life. Now in the American context, it was the states that were to protect this have this corporate liberty and the individual had individual liberties under the state constitutions and then also privileges and immunities under the federal under the central government could move around from one state to another.

3:30As one of the characters in Huckleberry Finn says, he's sick of this government. He's going to move to a different government, going to move from Missouri to Illinois. Well, that's nice, because if there's a different way of life in Illinois, that's good for you. Okay, now, it seems to me that's the moral meaning of federalism. Now, the founders were, or those who formed the Constitution, were afraid of consolidation. Europe had been going through consolidation for centuries, and they were aware of this. They were trigger-happy about it. In other words, when they smell consolidation, they cock the hammer and they didn't mess around.

4:24The Anti-Federalists warned that if you accepted the federal government, limited though it was in this new constitution, that you would one day end up with a consolidated government. They would eventually destroy these whole ways of life, the legal protection for them, and things will be flattened out, and they were, of course, right. Now, what I want to do is run through the history of this process of how this flattening out occurred. So we're going to go from the beginning of the Constitution right up to the day. The Constitution just about didn't pass.

5:28As Wellington said of war, it was a damn close run thing. And Hamilton took up the question of whether this new central government in the ratifying convention of New York, whether this new central government would be able to coerce states who didn't comply with very subtle things. But of course not. There's no state. This would never happen. It would be civil war. We didn't set this thing up for a war. And he said, besides, no state would ever allow itself to be the agent of coercing another state. This was well understood. But nobody had explained exactly what that meant legally.

6:14The first people to do that were Thomas Jefferson and James Madison and the Kentucky resolutions written by Jefferson and the Virginia resolutions written by Madison. and to put it very shortly, they argued as follows. The Constitution is a compact between sovereign state who've delegated enumerated powers to the central government as their agent.

6:44These powers were mainly defense, foreign treaties, regulating commerce, right to punish counterfeiting and so on. Every other power, what the 18th century called police power, police power to regulate moral, religion, education, public health, all the rest of it, everything that shaped the human soul, everything that provided legal protection for a way of life, all of that was reserved to the states. Now, if the central government goes beyond its delegated powers, so the Virginia and Kentucky resolutions argue, only the states can say, have the final authority to say whether they have or not.

7:34No agency of the central government has this authority, the Supreme Court doesn't, Congress I'm not a personal executive because they're creatures of the states, in other words, they are collectively an agent of the states. So if they wander beyond their universal powers, they do not have the authority to say what those powers are, because they're the creatures of the compact. It makes perfectly good sense in contract theory. Agents don't tell the principals what their powers are. But this should be, so therefore a state, Madison said, as a corporate entity, has a right to interpose its authority as a sovereign party to the compact to block an unconstitutional action.

8:29Not only does it have a right to do that, Jefferson says it has a positive duty to do it because it took an oath to uphold the Constitution. So it intervenes between its citizens and the central government, it steps forth to block the evil. Now that is the only way centralization can be stopped, that's the only way. Now Jefferson said the same thing in the Kentucky resolutions. These were sent around, and they had to do with the Alien and Sedition Acts, I won't go into that, those were acts in which the Federal Government took authority over seditious libel and speech, and Jefferson Madison held that only the states had authority over those things, not the central government.

9:19They weren't opposed to sedition laws, it's just that the Federal Government had no authority to deal with that. Now, they didn't get much support from the other states. Some didn't reply, some did. Greenland states thought it was okay. Madison then wrote the Virginia Report, which you ought to read, 1799, which is an involved response to the states, all the objections. It's a very powerful document and should be better known. Now these two resolutions came to be known later on as the Principles of 98, and that's what I'll call them. And they were used throughout the Union and the antebellum period in every section to justify state interposition and nullification.

10:14Now Jefferson in his second version of the Kentucky resolutions uses the word nullification as the rightful remedy. Jefferson of Madison had used the word interposition so we have these two concepts and I'm not going to go into what exactly the difference is because we don't have much time. Okay now when Jefferson was in his first inaugural he reaffirms the principles of 98 straight Away. He says that essential to the American conception of government was, quote, the support of the state governments of all their rights as the most competent administrators for our domestic concerns and the surest bulwarks against anti-Republican tendencies, end quote.

11:06Now, that's a code word for centralization. Anti-Republican means centralization. The principles of 98 refer to the 10th Amendment as guaranteeing that all powers not delegated to the central government by the states are reserved to them, and Jefferson elsewhere described the 10th Amendment as, quote, the foundation of the Constitution, end quote. So he's clearly thinking of it as an instrument to protect whole ways of life, as well as individual liberty. It was on this foundation that he hoped in the famous phrase to bind the central government down by the, quote, chains of the Constitution. All right, let's see how the Kentucky resolutions worked, how the principles of 98 worked.

11:51Only a year after the government was formed, individuals began filing suits in the Supreme Court against states. Maryland, South Carolina, New York, Massachusetts, and a number of others. But only one of these states really resisted. What these suits meant was that the states weren't sovereign. In other words, the Supreme Court was not taking the states as sovereign individuals who sued Georgia. Then the court would take it on. In Chisholm v. Georgia, the executors of two deceased loyalists sued Georgia for a bond that had been given before the revolution. Georgia interposed and refused to appear in court on the grounds that it was a sovereign state and that under international law sovereign states couldn't be sued without their permission.

12:44The Supreme Court paid no attention to this, found for the plaintiffs and ordered that Georgia honor the bond. So already the center is beginning to flatten out. It's right away. So what did Georgia do? They refused. Not only that, the House passed a bill providing that any Federal agent who attempted to execute the order would be, quote, guilty of felony and shall suffer death without benefit of clergy by being hanged, end quote. And that's how you handle Federal agents in those days when giants walked upon the earth. Now here Georgia had interposed, what had happened legally was it interposed her authority as a sovereign state to block an unconstitutional act of the center.

13:37Other states watched this and they agreed and soon the 11th Amendment was passed making it unconstitutional for an individual to sue a state without its permission. That's how the federal system was supposed to work. Because suppose Georgia hadn't done that, and the court had kind of sneaked, some states were asleep, and this gets through, and no one notices it, and case law gets built up, and you've got wimpy states, and pretty soon they're just being sued, and it drifts off. No, it didn't. Georgia stopped it right away. Jefferson and Hamilton clashed over whether the states had delegated the central government the authority to form a national bank and other corporations. Hamilton won the first round, but the quarrel would continue with intermittent state resistance.

14:26Notably, right away from Ohio and Kentucky, both of which declared the Supreme Court's decision in McCulloch v. Maryland that the state could not tax a federal bank unconstitutional and nullify it. In 1825, the legislature of Ohio inquired of the governor the best method, quote, to refuse obedience to the decisions and mandates of the Supreme Court of the United States, considered erroneous and unconstitutional, end quote. What are we going to do, Governor? And then it went on to ask whether it, quote, might be advisable to call forth physical power of the state to resist the court, end quote. To understand how strongly some thought about this, about protecting these whole ways of life that their states had, or just their states if you don't like that expression, consider Jefferson's advice to the Virginia legislature on how to respond to the suggestion of opening a bank of the United States in Richmond.

15:32Now listen to this, Jefferson said they should reason as follows, quote, the power of erecting banks and corporations was not given to the general government. It remains then with the state itself. For any person to recognize a foreign legislature, namely the Congress of the United States, remember these are nations, Ohio is a foreign legislature relative to the state of Virginia, so is the Congress. To recognize a foreign legislature in a case belonging to the state itself is an act of treason against the state. Remember, treason is defined in the Constitution as treason against them, against the states. Treason is treason against the state. John Brown was tried and executed in Virginia, not because, you know, because of treason against Virginia.

16:24is an act of treason against the state and any person acting under the authority of a foreign legislature whether by signing notes issuing or passing them acting as director cashier or in any other office relating to it shall be a judge guilty of high treason and suffer death accordingly end quote so these people said states were sovereign they meant it Now that was his suggestion. It might have been a bit purple in its rhetoric. I don't know, but people talk that they did these things. Back by sentiments such as these, Andrew Jackson was able to destroy the second bank of the United States.

17:10But only 27 years later, the Lincoln administration and the whirlwind of war and unprecedented centralization would tax the state banks out of existence and clear the way for federalizing banking and later for the Federal Reserve. Article 25 of the Judiciary Act of 1789 gives the Supreme Court jurisdiction, and this is a very important point, it gives it jurisdiction over cases in which state laws are held by a plaintiff to be unconstitutional. Now a number of states had right away questioned the constitutionality of Article 25 of the Judiciary Act. You can see the trouble that could cause.

17:56If anybody could claim that what the state is doing is unconstitutional, then it goes to the Supreme Court, and the Supreme Court would in effect be saying what the Constitution of the state is. Massachusetts legislature said, a report said, quote, It's a question of much doubt and argument as to whether this Article 25 is constitutional. Congress passed it, it means constitutional. Well, now who's going to resist? Congress passes it. The President could not enforce it. The Supreme Court has declared unconstitutional, but they don't do anything. And as you get more centralization, they all tend to act alike. It has to be the states.

18:46The most dramatic and thoughtful challenge to this Judiciary Act Article 25 came from Virginia. The Supreme Court in case Hunter's Lassie struck down a Virginia law. Judge Spencer Rowan of the Virginia Court of Appeals did a remarkable thing. He summoned the state's leading lawyers to argue before the Court of Appeals as to whether the U.S. Supreme Court had jurisdiction over Virginia's highest court on the question of state law. The arguments took six days and the court handed down its decision a year and a half later, in December 1814, that Article 25 of the Judiciary Act was unconstitutional. John Taylor of Caroline articulated the near universal opinion of Virginians and a few other states as well or large groups of people in those states that are on federal-state relations in a book called Construction, Construed and Constitutions Vindicated, 1820 and that's published by Liberty Fund, John Taylor, you can get it and it's very interesting.

19:57Now here's how Taylor argued. The constitutions of the founding states are rooted in natural law and expressed in a common law older than the U.S. Constitution. Remember now the states were the first constitutions, right? Donald Lutz, professor at Houston says that they were the first constitutions in the world in which people just out of their own voluntary actions and Compact Formed Political Societies. So the oldest constitution of that kind is not U.S. Constitution, but the states. Now these are older than U.S. Constitution. U.S. Constitution is a mere federal instrument that presupposes these organic laws.

20:45The states as organic and sovereign political societies create the Constitution, the Constitution didn't create the states. The constitution tailor went on, Vest the federal courts with jurisdiction over collisions arising under the enumerated collisions of individuals, arising under the enumerated powers granted central government, but not of the state laws, to allow the Supreme Court to be the arbiter of its own powers, or the powers of the parties to the compact that created it, would be to make the agent and created by a compact superior to the principles of the compact, an action that contradicts the very idea of compact in law. Now other states felt the same way.

21:32In 1854, the California Supreme Court also denied the Supreme Court appellate jurisdiction under Article 25 of the Judiciary Act. In 1856, the Chief Justice of the Ohio Supreme Court also denied the U.S. Supreme Court appellate Appellate Jurisdiction. In 1830, the governor and the legislature of Georgia denied the Supreme Court Appellate Jurisdiction over an issue arising under state law, and so nullified Article 25. Andrew Jackson supported the state and worked in Congress to repeal Article 25 of the Judiciary Act, but failed to get it repealed. But the best case of all was in 1855, the Wisconsin Supreme Court asserted its authority over the U.S. Supreme Court and nullified Article 25 and it continued to do so from 1855 right on up in a number of cases involving fugitives of slaves and some other matters right on up to the war.

22:33When a bill was introduced in Congress to give federal courts jurisdiction over suits brought in state courts against federal courts, it was defeated. Abolitionists such as Salmon Chase, Benjamin Wade appealed to the principles of 98. Chase said that this would establish a great central, consolidated Federal Government. And Benjamin Wade said, quote, a state in the last resort crowded to the wall by the central government seeking by the strong arm of its power to take away the rights of the state is to judge of whether she shall stand on her reserved rights. So you had this opinion coming from abolitionists up north, you had it coming from Virginians.

23:23Now, conflicts between the states and the Supreme Court was not the only area in which interposition and nullification occurred. Congress also came into conflict with the states. Vermont nullified Federal Congressional Fugitive Slave Laws in 1843, 1850. So did Massachusetts in 1843 and 1850. Massachusetts declared the Mexican War unconstitutional in 1846. The most serious conflict arose over whether Congress had the authority to raise and spend Spend Money on Internal Improvements. And it was held that the Constitution gives Congress the right to raise taxes to pay for the functions of government and then it enumerates what that money is to be spent for.

24:16So the founders held that if you wanted to let Congress spend money on other things, you had to amend the Constitution. Hamilton even agreed to that, and Madison and others. But by the late 1820s, a new nationalist argument had appeared. It was now said that Congress could raise money and spend it on whatever in its view would promote the national interest. But where would it get its revenue? Well, you certainly couldn't have an income tax. Nobody would accept that. From 1830 to 1860, the central government lived mainly on a tariff on imports and land sales. The great majority of American exports came from the South. The result was that the South funded around 75% of Federal revenue, because of its export trade.

25:08High protective tariffs meant high profits for Northern industry, but they hurt the Southern export trade, which was largely an exchange of European manufacturers for staples. The tariff of 1828 devastated the South Carolina export trade, and the legislature nullified the tariff until it was reduced to a reasonable level. The state had no objection to a tariff to pay for exercising the enumerated powers of Congress, but a tariff to raise revenue to improve northern infrastructure was not within Congress's powers. Governor Wilson asked, why should South Carolina have to pay for a canal across Cape Cod? Congress under Andrew Jackson's leadership responded with a force bill authorizing the President to use force to collect the tariff. South Carolina mobilized to resist. Tension was high and Congress began to rethink. Henry Clay worked out a compromise in which the tariff would be reduced but retain the force bill. South Carolina promptly rescinded nullification of the Tariff, and then nullified the force bill.

26:18So again, this is how federalism is supposed to work. You know, you negotiate these things. In textbook histories of the United States, nullification is usually presented as a radical kooky idea concocted by Calhoun to protect slave interests. This is simply not true. As I've shown, Calhoun's defense of nullification is simply an elaboration of the Principles of 98. And these principles are put forth in every section of the Union on issues that have nothing whatsoever to do with slavery. But further, any federal system that is serious about protecting the economies and ways of life of its federal units must allow some form of interposition or nullification. We can argue about the form, but that's simply got to be in the Constitution.

27:08Canada, for example, allows nullification in the area of civil rights. A province can nullify any federal law in the area of civil rights. It has to reaffirm that every five years, but it can do it. And Switzerland has all kinds of cheques, vetoes. Now it was widely understood at the founding that states were sovereign. If they're sovereign, then by international law at that time, Vattel and others make this clear, sovereign states entering a compact with no precise term of duration can withdraw from the compact at will.

27:57I mean, if the compact is for 99 years, they've got to stay in 99 years, as in the case of Hong Kong and Britain and China. So there was no precise term of duration specified in the Constitution, so everybody in your state could succeed. Of course, if you want a union, you don't want that to happen, but that's a matter of policy, not right. Leaders in North Carolina and Virginia talked of secession during the three-year mini-war with France in the late 19th century. New England considered secession in 1803 of the Louisiana Purchase, 1808 of the embargo, and most seriously in 1814, when Massachusetts called a convention of the New England states to consider forming a New England Federation.

28:42A military commander was appointed, secret commissioners were sent to Britain to negotiate a treaty if needed. Convention was in opposition to the War of 1812, and those states nullified the request for troops. They wouldn't send any troops. In the 60s, we heard, what if they gave a war and no one came? Well, they gave a war and New England just didn't show up. Now, Daniel Webster, the great windbag who became an eloquent defender of the nationalist theory, was what began his career as a New England secessionist.

29:23John Quincy Adams signed a document in 1843 along with other New England leaders declaring that the annexation of Texas would mean the dissolution of the Union. And Massachusetts declared that the annexation would mean the dissolution. Now Thomas Jefferson contemplating New England secession movements wrote in 1816, quote, if any state in the Union will declare that it prefers separation to a continuance in union. I have no hesitation in saying, let us separate, end quote. He had done it before, it could be done. It wasn't that big a deal, especially if you didn't have to fight. And there are many other examples. Governor Morris called in the New York Tribune for New England, New York to secede. One of the first treatises on the Constitution was a view of the Constitution published by William Rawl, 1825, A leading Federalist, a would-be Nationalist.

30:17Rall was a leader of the Pennsylvania Bar, and he argues that, I mean, he wanted a Nationalist government, but he knew he didn't have one. And so in this book, and his testimony is very powerful because he didn't particularly like the Constitution, but he points out that it's a confederation, it's a compact between states, and that states can secede. So then he goes to lay out the legal steps the state would have to take in order to secede. It doesn't need to have permission of any other state, but it does have to satisfy a certain formal condition. Now this book was a text at West Point on constitutional law from 1825 to 1840. So at least up through that time, military officers learned from the, about secession.

31:05From the 1830s and 1960s, abolitionists saw secession as the best way to eliminate slavery. The American Anti-Slavery Society passed the following resolution, quote, Resolve that the abolitionists of this country should make it one of the primary objects of this agitation to dissolve the American Union, end quote. It's typical American Act. You think in terms of states. You think in terms of states. The federal government's never going to do anything about slavery, they don't have any authority over it. The other states aren't going to do anything. You pull out. When Southern states began to secede, abolitionists at first welcomed the action. This included Horace Greeley and such abolitionist journals as Frederick Douglass's Douglass Monthly.

32:02In the 1850s, as a succession of the Deep South seemed imminent, a movement occurred The mayor of New York, Fernando Wood, argued that New York City should secede, and he was serious, and declare itself a free city, and form an alliance with the U.S. and the United States to form what was called the Central Confederacy, made up of mid-Atlantic states, I won't go into that, except to say that it would include New York and Virginia and the southern border states, so there would be a big union left if the deep south seceded. He said, quote, as a free city with but nominal duty on imports, the local government could be supported without taxation upon her people.

32:48Thus we could live free from taxes and have cheap goods nearly duty free, end quote. It's still a good idea. Imagine New York, it's like Singapore, a free city. But anyway, but not everyone accepted the Compact Theory. There was the Nationalist Theory, and that theory basically had to argue as follows. When the colonies seceded from Great Britain, here's how it goes, this is just a story, all legal jurisdiction vanished. Virginia was an artifact of the British monarchy. Once that's gone, there is no artifact, right?

33:33So there's no Virginia. There's just a bunch of people there. Same with all the other colonies. So what you were left with were people in a state of nature. There's people in a state of nature, according to Hobbes and Locke's Contract Theory, spontaneously formed the political society of the American people in the aggregate. They, in turn, created a central government called the Congress, which authorized the formation of states. Now, they couldn't raise taxes and they couldn't raise troops, but they could create political societies. This is so It's all absurd. I mean, this is absurdity on stilts, but it's fundamental American law now, just about.

34:24Just breathtaking. I've thought there's something wrong with me. I must be missing something. And I read these people, and it just doesn't get any better. I mean, it's just absurd. Okay, now, if the national, but if that's true, if that's true, then the states are counties in a unitary state. They're not sovereign, so they can't succeed on their own. They have to get permission. I think we would all agree that if any county of Alabama wanted to succeed, it would somehow have to get permission from, because it's an artifact of the legislature. It legally have to get permission. It could fight its way out, but that's a state of nature. So, Lincoln said there's no legal right to secede because he accepted this nationalist artificial nation person theory that had drifted over from Europe and began to infect everything it touched.

35:20Now, Webster gave his great speech in Congress called The Constitution Not a Compact. And Calhoun, who was a very learned man and very articulate, he answered him with a very careful historical exposition of the Constitution. John Randolph, who observed Calhoun's withering exposition, said he saw, quote, Webster die muscle-by-muscle. And in the crisis of the 1850s, Webster unthinkingly reverted back to the language of the Compact Theory. He started treating the Constitution as a compact, told the New England states that they kept nullifying any fugitive slave laws, they're breaking the Compact, you break the Compact, states have a right to secede.

36:14It was his earlier view as a New England secessionist and he sort of slipped back into it when he wasn't, when he was sober.

36:29Okay, now, Lincoln, when the Southern states did secede, Lincoln's argument was the Union is older than the states and in fact it created them a state so they can't secede. So he used that flimsy legal argument to invade, and most of you know, suspended civil rights, closed down around 300 newspapers, arrested about 20,000 political prisoners, about 10 times as many as Mussolini did in his most vigorous period. I checked that out, about 12,000. Anyway, so it would, he assumed dictatorial powers because he was preserving the Union.

37:17Now after the war, so here we have the first move towards destroying Federalism. The executive branch takes initiative and illegally raises money, illegally raises troops, invades Maryland which destroys this mid-Atlantic Confederation idea. The states again were trying to get together to solve this problem. If you got a secession problem, it's not Washington's problem. It's a problem for the other sovereigns in the compact. And so state conventions, negotiation of whole states is what has to go on. This will be the case in the European Union today. If there were a serious problem, then you would hope that it would be a matter for the states to negotiate. Now, after the war, the next culprit was Congress.

38:08Lincoln had domesticated the Congress and the Supreme Court. When Tawny rules habeas corpus, his act unconstitutional, he ordered his arrest. So this concentrated the mind of everybody. It really did. This was completely unusual. But after the war now, Congress takes over and it becomes the centralizer. Lincoln's theory was states couldn't succeed, so since they couldn't succeed, all you had to do was put loyal union people in, have the ex-Confederates take the oath as a condition of Suffrage, and he'd be back in business. States never succeeded. You just have a bunch of wicked pirates trying to attack the United States. Get rid of them, make them submissive, back in business. And that's what Johnson tried to do. But Congress wanted a more radical policy and it passed the 14th Amendment, so-called passed it, June 13th, 1866, and submitted it to the states for ratification. And this is very interesting. The amendment overturns This is a Dred Scott decision by declaring that anyone born in the U.S. is a citizen and no state can deprive a citizen of the privileges and immunities of the citizen or deprive any person of life, liberty, property without due process of law or to deny equal protection of the law.

39:39So this gives a central authority the right to interpret all these things. Suffrage was left to the states but if blacks were not allowed to vote a state lost representation proportionally and I won't go into the other details of it. The ratification process of this most famous of all amendments began and ended in spectacular violations of the rule of law. It failed by one vote in the Senate, passed the House. The radical Republican solution to this problem was to retrospectively unseat Senator Stockton of New Jersey, a vigorous critic of the Fourteenth Amendment, even though he had been formally The motion to unseat passed by a majority of one, even though the Constitution requires a two-thirds majority to expel a member. The radicals shamelessly replied that retroactive unseating a member is not the same as expelling it. Political span increases with centralization.

40:44Okay, now the Southern states were denied representation in the House and Senate, but remember they had been counted in the number of states necessary to ratify the 13th Amendment. In other words, they were counted just like all the other states in the number necessary to ratify the 13th Amendment, and some of them ratified it. But they were useful now to supporting the 14th Amendment even though they didn't have any representation. All the southern states voted no except Tennessee whose vote was illegal since the legislature did not have a quorum and it was passed by bayonets. Oregon's ratification was also illegal and was rescinded later by the state.

41:29Ohio rescinded its earlier ratification, as did New Jersey, outrage of the arbitrary expulsion of its senator from Congress. Delaware, Maryland, California, and Kentucky rejected the amendment outright. The amendment failed to receive even a simple majority, much less than two-thirds or three-fourths. But the radicals run daunted, and in March 1867 passed the Right Reconstruction Act, Act, which now declared that, quote, no legal state governments, end quote, existed in the ten southern states, had refused to ratify. The region was divided into five military dictatorships. Black males were enfranchised, and all whites, in support of the Confederacy, were disenfranchised. Three-quarters of white males of military age were in the Confederate Army.

42:14The voters were to elect delegations to a convention that would produce a constitution giving black males the vote, and that would ratify the Fourteenth Amendment. After this was done, Congress would consider ending military rule. Now in vain did President Johnson protest that the Reconstruction Act violated the Fifth Amendment and was a bill of attainder against nine million people, all of whom were deprived of political and civil rights without due process and without representation in either the Senate or House. With no means of political resistance left, the South turned to the Supreme Court for relief. The Court ruled in ex parte Milligan that martial law could not be constitutionally imposed in the absence of war and rebellion.

43:00Consequently, states sought an injunction on the ground that Congress had no authority to annihilate a state government and deprive its people of political and civil rights. The Court, which had learned submission under the Lincoln administration, ruled that it had jurisdiction over property and persons, but not over political rights. Southern Hopes revived when the court took up the case of Ex parte McCardell, which did involve confiscation of property under the Reconstruction Act. But while the case was being reviewed by the court, Congress passed a bill removing the court's jurisdiction in the case. Congress had required a majority of the registered voters to approve the Reconstruction Constitution.

43:48And Alabama voters, for example, and there were other states that tried this, stayed away from the polls. Now, these are union voters, you understand. I mean, the ex-Confederates are out of this. They stayed away from the polls as a way of blocking the centralization they feared would come with the 14th Amendment. The Constitution passed, but without the required majority of the registered voters. Congress simply changed the rules retroactively to to make a majority of those voting sufficient. In some cases, it was a very small number. Eventually, the southern states were your feudal resistance and tired of military dictatorships where judges, governors, other elected officials were removed by military commanders and fearing proposals by radicals in Congress that property would be confiscated and redistributed finally agreed in the terms of the Reconstruction Act.

44:34And the 14th Amendment was ratified really by point of sword. Now, but the crowning constitutional absurdity is that only a legally recognized state can ratify an amendment. And by the Reconstruction Act, the southern states that ratified were not legally established states at all. And so were incapable of ratifying any amendment. So what you had were, you understand that point, they weren't states. Without the Southern non-states, I'm going to call them, without the Southern non-states, the 14th Amendment would not have been ratified. And indeed, if due scrutiny were given to, and I don't have time to go into this, to West Virginia, which was illegally carved out of Virginia, of Virginia, and to legal improprieties with Nevada and New Mexico, didn't have enough people to be a state, the amendment would not have passed even with the forced ratification of the southern non-states.

45:42So it's in this way that this most famous of all amendments came into the world. Now, the recognition for ratification of the Southern non-states logically implied that all American states were now non-states. They had become that through violence and fraud, they had become the counties in a unitary state that Lincoln said they were. And with that, the dreaded consolidation that anti-Federalists such as Patrick Henry and and George Mason warned against, into which secession was the ultimate remedy had come to pass. William Gilmore Sims said at the end of the war, no northern state today has a republican form of government.

46:27That was his, not only southerners, but northerns didn't either. Okay, one final point. Historians say that after Reconstruction, Federalism revived. In a sense, that's true. The Supreme Court narrowly construed the meaning of the 14th Amendment, which in effect, as they said, and Raoul Berger argues this in his book, Government by Judiciary, that all the amendment's attempt to do was to constitutionalize the Civil Rights Act of 1866, which gave blacks the privileges and immunities of citizens. That's not political rights or social rights. We're just privileges and immunities of a citizen.

47:14They can own property, form contracts, which they couldn't do before, even in Northern States, some of them. So the Supreme Court then reestablished state's rights. But notice what had happened is federalism was not restored because everybody started looking to the Supreme Court to see what the rights of the states were. So the Supreme Court gave these states rights, but what it can give, it can take away. And later on with the incorporation doctrine in the 1920s, it began to say that the 14th Amendment incorporates the Bill of Rights. So we get the absurdity that the Bill of Rights, which is mainly designed to protect the corporate liberty of federal units, is now designed to protect individuals Against the Corporate Liberty of the Federal Units.

48:10The incorporation, if you want to read the absurdity, why that's absurd, read Raoul Berger's, B-E-R-G-E-R book, Government by Judiciary, and you can get it from Liberty Funds. So get their catalog, look on their webpage, and get that book. He demonstrates, Forrest McDonald says, it's just unanswerable, that the framers of the 14th Amendment did not mean to invert the Constitution, they did not mean to turn the Bill of Rights into, put it under Federal authority. So, that's the long story. It fits right in to the story of centralization in Europe. What happened here was happening there. It's a process of modernity.

48:58The United States was right on schedule. It was a little bit late from Europe because they had this older tradition that was more, it was pre-modern, but they finally came into the centralized world, kicking, some of them kicking and screaming. Thanks.