A WEEKLY COMMENTARY
Year Twenty-One ... Number Twenty-One ... May 24, 1974
THE CONTRIVED EVOLUTION
OF REGIONAL GOVERNMENT
PART FOUR
IMPLIED, IMPLICIT & INHERENT CONSTITUTIONAL INNOVATIONS
When the thirty-nine delegates signed the engrossed Constitution of the United States, they felt they had done the best possible job under the circumstances, they had given the people a Republic, if they could keep it, and they signed the remarkable document with pride, and prayer. But they did not sign on behalf of the people of the United States; they signed as representatives of the free and independent States and then submitted the proposed Constiution to the citizens of those States -- not to the citizens of the United States -- for ratification. The difference may seem trivial in 1974, but it was a vital difference in 1788.
Time and brainwash has caused us to lose the significance of those first three words in the Preamble to the Constitution: "We, the People," James Madison, at the ratification Convention of Virginia, stated that: "We, the People" mentioned in the Preamble were "not the people as composing one great body," but rather "the people composing thirteen sovereignties." The union was seen as pluralistic, not national. Historian James Bryce, in The American Commonwealth, published in 1894, gave the following example of how pluralism, as opposed to nationalism, was extant at that time:
"A few years ago, the American Protestant Episcopal Church was occupied at its triennial Convention in revising its liturgy. It was thought desirable to introduce among the short sentence prayers a prayer for the whole people; and an eminent New England divine proposed the words 'O Lord, bless our nation.' Accepted one afternoon on the spur of the moment, the sentence was brought up next day for reconsideration, when so many objections were raised by the laity to the word 'nation' as importing too definite a recognition of national unity, that it was dropped, and instead there were adopted the words 'O Lord, bless these United States'."
This pluralistic sense was so commonly recognized that, up to the outbreak of the War Between the States, the standard usage was "The United States are." It was after the Civil War that people began to be taught to say, "The United States is." In the beginning Congress was also a plural noun; even Alexander Hamilton, who favored the Continental Theory of government over the Compact Theory which the Constitution implied, stated that "Congress are," admitting that "We, the People" meant the people of thirteen States, not the people of one Nation. The change began with the changes brought about by the Civil War. As historians Samuel Eliot Morison and Henry Steele Commager admitted in The Growth of the American Republic, after the War the "Union had been preserved, but only in the narrow sense of territorial integrity had the old Union been restored. The original Federal Union had disappeared and in its place arose a strong national state, federal chiefly in administrative machinery."
But, getting back to the foundation of the confederation of republics; The States, individually, accepted the Constitution under the following terms of power:
In summation: Our Founding Fathers -- and this includes Alexander Hamilton -- agreed that the government they set up was a "Compact Between the States," that it was based on the people of the individual States and not on the people of the whole union, and that it was the States that created and put into effect the central government. To further protect the people, the States demanded a Bill of Rights, the Preamble of which reads:
"The Convention of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best insure the beneficient ends of its institutions, be it resolved, (Amendments I through X then follow)."
Of especial importance in this connection were the Ninth Amendment (copied almost directly from the Articles of Confederation) which reads:
"The enumeration in the Constitution of rights, shall not be construed to deny or disparage others retained by the people," and the Tenth Amendment, which reads:
"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." Thus, as Rep. Nelson Pryor noted, "By preventing mis-construction of the Constitution, the States could have strict construction."
The Compact Theory, in short, is for strictly limited government and individual responsibility; a fulfillment of the goals of government as expressed by Jefferson: "Let the national government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, law, police, and administration of what concerns the State generally; the counties (towns and cities as well) wiht the local concerns of the counties, and each ward direct the interests within itself."
It was Alexander Hamilton who disputed this concept of government and introduced the Continental Theory, of a strong central government. In 1781-82, Hamilton wrote a series of seven articles for London's New York Packet in which he outlined his theory of an ideal government for the thirteen States. Titled the Continentalist Papers, Hamilton insisted that the central government should have absolute and unquestionable powers. His Continental Theory borrowed much from Thomas Hobbes and his Leviathan (1651), a political philosophy embodying a superstate wherein the omnipotence of the ruler owers its existence to an original contract among the governed. The political philosophy spelled out in Col. House's book Philip Dru: Administrator might be considered something of a modernized version of Hamilton's Continentalist Papers. Even while a delegate from New York at the Constitutional Convention, Hamilton went so far as to suugest that the States should be abolished in favor of a federal regional government system (Richard Hofstadter in his historical work The United States, Prentice-Hall, 1961).
However, when Hamilton saw that this ideas were thoroughly rejected by almost all of the other delegates at the Convention, he voluntarily abandoned his plan and program and assisted Edmund Randolph and James Madison in promoting the Virginia Plan, which became the very backbone of the completed Constitutional structure. Not only at the Convention, but afterward in the Federalist Papers, Hamilton continued to work for the adoption of the Constitution. It is almost a certainty that New York would never have ratified the Constitution had it not been for the efforts of Alexander Hamilton in his home State.
But -- when the Constitution went into effect, when George Washington was chosen as the country's first President, and when Hamilton was named Secretary of the Treasury in that first Cabinet, he immediately began to put his Continentalist Theory into operation.
This pattern has become familiar in United States political life. In our own time, FDR was elected on a conservative platform but when installed in office he surrounded himself with Fabian Socialists -- even inviting a few from London to come over and help -- and the New Deal was inaugurated. Likewise RMN who posed as a dedicated anti-Communist and a hard-hat conservative, but when elected reversed the field completely, adopted Fabian Socialist programs domestically and embraced Communist countries externally -- and the New Federalism (or the Quiet Revolution) was inaugurated. But, it was Alexander Hamilton who was first in the matter of changing images in midstream (first in American politics, that is).
Hamilton treated the Constitution as though it had been engrossed on rubber instead of parchment. It could be stretched to cover almost anything the federal government wanted to do, reasoned the first Secretary of the Treasury. Certainly, there were enumerated powers, residual powers, and concurrent powers specified and delegated by the Document. But, said Hamilton, there were also inherent powers, implicit powers and implied powers in the Constitution that were not defined in words but that could be stretched to the point where there would be no effective limits to the power of the government. Furthermore, those concurrent powers, the dual powers delegated to both the general government and the States, could be taken over by the Federal Government.
In 1787 Hamilton praised the Constitution as the finest possible frame of government; but in 1802 he spoke of the Constitution as "a frail and worthless fabric" and therefore no obstacle when it came to putting his program across (this accoding to Richard Hofstadter, The United States, page 130).
The Hamilton Program included:
Alexander Hamilton did not complete his Continental programming; his meteoric political career was cut short by a bullet fired in a duel by his political rival Aaron Burr, in 1804. But, after Hamilton left the scene, his philosophy was carried on from the United States Supreme Court by Chief Justice John Marshall who served in that capacity from 1801 to 1835. It has been said that it was Marshall's doctrines and interpretations which prompted the British historian Thomas Macauley to say: "Your Constitution is all sail and no anchor."
The Constitution devotes comparatively little space to the "judicial Power of the United States," which shall be "vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Section 2 of Article III states: "The judicial Power shalll extend to all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."
The extent of the judicial power is further explained in Section 2, but as Hamilton wrote in The Federalist, comparing the relative powers of the three branches of the federal government: "The Executive not only dispenses the honors, but holds the sword of the community. The Legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse ... and can take no active resolution whatsoever. It may truly be said to have neither force nor will, but merely judgmnet. This simple of the matter suggests several important consequences -- it proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the others, and that all possible care is requisite to enable it to defend itself against their attacks."
Which was certainly true until the celebrated Marbury v. Madison case came along in 1803. Over and beyond the legal technicalities of this case, there was a most important question to be answered: in a government co-partnership where concurrent powers are involved, and a branch of the federal government is accused of having exceeded the powers granted it by the Constitution, who shall judge the case; the States, or the United States Supreme Court? President Jefferson, and most others, insisted that the General Government should not be given the power to judge itself when the States were the injured parties; and that there should be a review and determination by the States themselves. Marshall and others believed it was the duty of the Supreme Court to determine such controversy. And, in Marbury v. Madison, Marshall won out; since that time there has been Judicial Review rather than State Review. Still later, in 1810, in the case of Fletcher v. Peck, the Supreme Court assumed the power to review the acts of the States. Then, in 1819 in Dartmouth College v. Woodward, the States were denied the right to alter Charters within their boundaries. In two other cases decided while John Marshall was Chief Justice, the Supreme Court asserted its right to pre-empt and re-try cases that had already been settled by State Courts.
Thus did the Compact Theory fare under Chief Justice John Marshall. On the other hand, Presidents at this time were not in sympathy with Marshall. As Representative Nelson Pryor stated in an address before the Massachusetts Americans for Constitutional Action, on Sept. 24, 1973:
"From 1800 to 1860, this Union of States was governed by administrators that, almost to a man, advocated and practiced the ideals of the Compact Theory. There were a few notable exceptions; such as James Madison's temporary loss of footing during the "Era of Good Feelings." This period saw subsidies and handouts re-instituted; but was soon ended by the efforts of Compact Theorist and New York Senator, Martin Van Buren. The Continentalist majority on the Marshall Supreme Court was used for the advantage of people who sought special privileges from Washington. Knowing that acts which violated the Compact Theory would not be passed by Congress or approved by the President, the Continentalists seized upon court cases, had those cases carried to the U.S. Supreme Court. Wanting a Continentalist principle accomplished, the Supreme Court would settle the case accordingly, and precedent would maintain the principle thus established (the Warren court was not original in this respect -- Ed.)
"Those were trying days for the States," continued Rep. Pryor, "as they saw the building up of power in Washington. In Congress, The American System (1824) was proposed by Henry Clay; this was based upon the ideas of Alexander Hamilton. In 1830 Daniel Webster denied the validity of the Compact Theory and defined the Nature of our Union as Continentalist. He proclaimed the Union as based on "one" people and not that of separate peoples of different States as having made the Compact. He further proclaimed that the people should look to Washington for the safeguarding of their rights, instead of to the States, as had been the underlying theory of previous governments.
"While the War Between the States was in progress, the Northern Congress started to push Continentalist policies which the South had been able to stop whle they were still in the Union. The long debated transcontinental railroad was voted through in 1862. This granted land and a Federal subsidy of 0.7 billion dollars to the builders. The Morrill Land Grant Act was passed the same year, to finance government colleges. Vote-buying in the Credit Mobilier scandal was a direct result as Congress did not regulate that which it subsidized (how could it when people as high as the Vice President of the United States were involved?)
"The people of the States, wanting relief from high railroad rates, attempted to get State Regulation of same. In 1867, the Grange was organized to protect the users. Beginning with Illinois in 1870 the Grangers won control of the legislatures of several Midwestern and Southern States. Munn v. Illinois (1877) established that States could regulate business within their own boundaries. But this precedent was overturned by Wabash v. Illinois in 1886...
"Alexander Hamilton's philosophy had thus grown fruit. To accomodate the Grangers who had now transferred their action to the U.S. Congress, the Interstate Commerce Act of 1887 was passed. Events show that neither the Supreme Court nor the Congress ever implemented this law to regulate railroads. And later, the mild Continentalism of these men was replaced by others who wanted strict control over all businesses, and the precedents to do it had already been well established.
"The Compact Theory was, by now, set aside. The Continentalist Theory was pretty much in the saddle by the turn of the century. The third theory, Internationalism, which is a mixture of strong Continentalism and eventual One World Government, was now ready to emerge. A government by technocrats would evolve, with the technocrats consolidating the powers of government and transferring that power to themselves in order to create a better world."
We have compressed the history of a whole century into a few, mostly quoted, paragraphs, because we wanted to get to the twentied century, where the action really begins and where -- to a surprising degree -- we find the history of the eighteenth century Counter-revolution against a Central Government in London so very similar to the current history of a Counter-revolution against a Central Government in Washington and an emerging World Government still so difficult to define and delineate that we are at an awful disadvantage in combatting it. However, as the twentieth century begins, the outlines of our real enemy also begin to emerge.
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