The Men Who Destroyed the Constitution

by Thomas J. DiLorenzo

In his 1850 Disquisition on Government, John C. Calhoun argued that a written
constitution would never be sufficient to contain the plundering proclivities
of a central government. Some mechanisms for assuring consensus among the citizens
of the states regarding "federal" laws would be necessary. Consequently,
Calhoun proposed giving citizens of the states veto power over federal laws that
they believed were unconstitutional (the "concurrent majority"). He
also championed the Jeffersonian idea of nullification. To Calhoun (and Jefferson),
states’ rights meant that the citizens of the states were sovereign over
the central government that they created as their agent, and could only be so
if such mechanisms – including the right of secession – existed.

Without these political mechanisms the forces of nationalism, mercantilism,
and political plunder would relentlessly reshape the Constitution with their
rhetoric, and their efforts would eventually overwhelm the strict constructionists.
At that point the Constitution would become a dead letter.

In his new book, The Constitution in Exile, Judge Andrew Napolitano explains
in very clear language just how prescient Calhoun was. The biggest special-interest
group of all – the federal government itself – has "seized
power by rewriting the supreme law of the land," as Judge Napolitano says
in the subtitle to his book. Just as Calhoun predicted. The purpose of the book,
says the judge, is to tell "the unhappy story of liberty lost, federalism
trampled, and Big Government run amok." How did we get to the point, he
asks, of where the "federal" (i.e., central) government defines for
us the drinking age for alcohol, how much wheat farmers can grow, the ability
of terminally ill cancer patients to medicate themselves with marijuana, the
amount of sugar that can be used in ketchup, and even the size of toilets?

Unlike the neocons who surround Judge Napolitano in his appearances on the
FOX News Channel, he understands that freedom comes "from God and is inherent
to our humanity . . ." "Freedom" is not derived from military
adventurism under the guise of phony humanitarianism, as the David Horowitz/William
Kristol/Rush Limbaugh/ crowd would have us believe. (For an amusing rendition
of this fascistic theory take a look at the web site of the "David Horowitz
Freedom Center").

Judge Napolitano is one libertarian who is not intimidated by the forces of
political correctness, a defining feature of so many "beltway libertarians."
Consequently, he is not afraid to recognize the truth about the American founding:
"The states were sovereign entities that the Continental Congress could
not directly control. Essentially, there was no binding central government"
Even better, "Congress could not tax the people of the United states (Ah,
the good old days!)" Advocates of centralized governmental power have long
falsely associated statements about states’ rights with racism and slavery,
which has intimidated most beltway libertarians, but not Judge Napolitano.

After a lucid explanation of each section of the Constitution the judge discusses
how the nationalist/mercantilist coalition, led by Alexander Hamilton and his
accomplice Judge John Marshall, conspired to effectively rewrite (and undermine)
the Constitution almost as soon as he ink was dry on the original copy. The
"Federalists" (who would eventually morph into the Whigs, and then
the Republicans) never accepted their defeat in the Constitutional convention
(which created a federal, not a national government). Nor did they accept Jefferson’s
election as president. Thus, two days before his term ended the Federalist President
John Adams appointed dozens of "midnight federal judges" and appointed
John Marshall to the Supreme Court on March 3, 1801, one day before he would
leave office. Marshall "spent the remainder of his career finding clearly
disingenuous, historically inaccurate, and highly questionable justifications
for ruling that federal power is not limited," writes Judge Napolitano.

In his most famous decision, Marbury vs. Madison, Marshall gave the federal
judiciary the power to rule on the constitutionality of both statutory law and
the behavior of the executive branch. "[T]his means that the Supreme Court
granted itself the authority to declare the will of the people . . . null and
void . . ." This of course has caused endless mischief and tyranny. This
principle of a monopoly in reviewing constitutionality was not widely accepted,
however, until after Lincoln’s war of 1861–1865 destroyed state
sovereignty once and for all. Until that point, many Americans believed that
the citizens of the states, as well as the president and Congress, should have
equally legitimate claims on interpreting the Constitution. As President Andrew
Jackson famously said, "John Marshall has made his decision, now let him
enforce it if he can."

Marshall and his fellow Federalists, such as Justice Story, also paved the
way for the Supremacy Clause of the Constitution. This clause only grants "supremacy"
to the central government on the seventeen specific functions of the central
government that are delineated in Article I, Section 8, period, many of which
have to do with waging war and foreign policy. This power has been grossly abused
by implying that the central government is somehow "supreme" in anything
and everything vis-à-vis the citizens of the states. This of course is
a perfect recipe for tyranny.

Judge Napolitano recognized that it was Federalists like Joseph Story and John
Marshall, and later Whig politicians like Daniel Webster and Abraham Lincoln,
who would tell The Big Lie that the Constitution was ratified by "the whole
people" and not as it actually was – by the citizens of the sovereign
states, with their representatives assembled in state conventions. "That
was both historically incorrect and intellectually dishonest," says Judge

According to this false view of the American founding the central government
was always the master, not the servant, of the people. This, too, is a perfect
recipe for tyranny that has been made by tyrants everywhere (Hitler even invoked
this argument in Mein Kampf to make his case for destroying state sovereignty
in Germany).

In McCulloch vs. Maryland Marshall enshrined into law Hamilton’s dangerous
(to liberty) notion that there were supposedly "implied powers" in
the Constitution. He did this in order to justify a central bank, which is mentioned
nowhere in the Constitution under actual powers. This created the situation
where the powers of the central government were only to be limited by the imaginations
of federal politicians. Judge Napolitano proceeds to describe myriad examples
of this, from the PATRIOT Act ("a lawless law because it allows the federal
government to obtain information without a warrant, thus violating the Fourth
Amendment") to census snooping, television regulation, and hundreds of
other major and minor power grabs.

By far the most brilliant chapter of The Constitution in Exile is chapter four,
entitled "Dishonest Abe: The Lincoln You Didn’t Know." Here
the judge recounts how, "In order to increase his federalist vision of
centralized power, ‘Honest’ Abe misled the nation into an unnecessary
war." And, "with very little regard for honesty, Lincoln increased
federal power and assaulted the Constitution. His actions were unconstitutional,
and he knew it." Moreover, "Lincoln’s view was a far departure
from the approach of Thomas Jefferson, who recognized states’ rights above
those of the Union." He goes on to present chapter and verse of the abuse
of the constitution and the consolidation of political power in Washington that
took place during and after the Lincoln regime. "Lincoln increased the
power of the federal government at the expense of the rights of the states and
civil liberties. This opened the door to more unconstitutional acts by the government
in the 1900s through to today." The judge also recognizes that all other
countries in the world ended slavery peacefully, which could have happened in
the U.S had the slaves not simply been used as political pawns by the neo-federalist
Republican Party to achieve its main goal, the consolidation of political power
in Washington and the destruction of citizen sovereignty. "The next time
you see Lincoln’s portrait on a five-dollar bill," writes Judge Napolitano,
"remember how many civil liberties he took away from you!"

Thanks to the final victory of the Federalist/Whig/Republican cabal continued
to enhance governmental power and diminish liberty by perverting the Commerce
Clause of the Constitution in the post-war years in ways quite familiar to many
LRC readers. By the late nineteenth century, the monopolistic federal judiciary
began attacking capitalism in the name of regulation that supposedly served
"the common good." The judge is wise enough to understand that capitalism
itself serves the common good, and that regulation more often than not is the
result of special-interest politics. These attacks intensified during the New
Deal, which "codified socialism, evaded the Constitution, disregarded the
Natural Law, and put individualism on the path to extinction."

And here’s a shocker: "Between 1937 and 1995, not a single federal
law was declared unconstitutional by the Supreme Court. Not one piece of legislation
was seen as exceeding the scope of Congress’s commerce power." (Emphasis
added). So much for the phony argument that "judicial review" by the
federal courts acts to protect liberty. Instead, it does the opposite: It expands
the size and scope of government at the expense of liberty. This sad story is
told over the course of several of the latter chapters of The Constitution in

The back cover of Judge Napolitano’s book has blurbs from such high profile
neocons as Bill O’Reilly, Sean Hannity, and Rush Limbaugh (as well as
civil libertarian Nat Hentoff and liberal commentator Alan Colmes). I doubt
that the neocons on this list ever read the book, however. In a chapter entitled
"After 9/11" the judge writes that "The PATRIOT Act and its progeny
are the most abominable, unconstitutional governmental assaults on personal
freedom since the Alien and Sedition Acts of 1798" and "the most unpatriotic
of the things that the Bush administration and this [Republican controlled]
Congress could have visited upon us." (These "most unpatriotic of
things" are what O’Reilly, Hannity, and Limbaugh have spent hundreds,
if not thousands, of hours defending on their respective television and radio

And it is indeed unpatriotic and traitorous to the Constitution to support
current policy, which is that "federal agents and local police can write
their own search warrants, serve them on American financial institutions without
the intervention of a judge, and obtain information about you without you even
knowing it!" The PATRIOT Act "has allowed the government to circumvent
completely the Fourth Amendment" and "makes it a crime – punishable
by five years in jail – for the recipient of a self-written search warrant
to tell anyone that he or she has received the search warrant." These rats
know that they are rats.

It gets worse. "The government can now . . . break into your house . .
. steal your checkbook, put an electronic bug under your kitchen table, and
make it look like it was a house burglary. It can even leave and not tell you
or the local police what has happened."

Dub-Yuh is recognized as the tyrant and dunce that he is: "President Bush
does not recognize the constitutional limitations imposed on his office. His
only concern is with victory over ‘the enemy,’ whoever that may
be. "

So what can be done? Among Judge Napolitano’s common sense recommendations
are abolition of the income tax ("the Sixteenth Amendment . . . should
be abolished outright"); same for the Seventeenth Amendment which called
for the direct election of U.S. senators and a return to the system of appointing
them by state legislatures; and the recognition that the federal government
will never check its own power. "Thus, I would clarify the right of the
states to secede from the Union," writes the judge from New Jersey, "losing
all the benefits that come from membership [in the union], but regaining all
the freedom membership has taken away.

The U.S. government is now characterized by dictatorial power, abuse of every
kind of personal liberty, confiscatory taxation, economic fascism, dangerous
militarism, and imperialism. Every American who is concerned about this Nazification
of the American government needs to own a copy of The Constitution in Exile.

Copyright © 2006

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