Constitutional Futility

by Thomas J. DiLorenzo

The feature article of the
June 2004 issue of "The Insider," published by The Heritage
Foundation in Washington, D.C., is one of dozens of articles written
over the past twenty years or so by Roger Pilon of the Cato Institute
urging Americans to educate themselves on how the Constitution supposedly
limits government. Cato Institute staffers are known for carrying
little pocket-sized copies of the Constitution around with them, presumably
so that they will never miss a chance to prove to anyone who will
listen that there is indeed a way of limiting government: enforce
the Constitution.

But this whole enterprise of preaching about the Constitution, as
conservatives and libertarians have been doing since at least the
1930s, is utterly futile. It has had no effect whatsoever, yet Cato,
Heritage, and many other institutions continue to churn out essentially
the same old arguments about how the Constitution can limit government.

The reason all these efforts are useless is that those who partake
in them invariably ignore any serious discussion of how constitutional
restrictions on government can be seriously enforced. They typically
implore the public to educate itself, as though politicians will
then magically transform into dutiful tribunes of the people, take
their advice, and shut down most of the government. Or they believe
in the pie-in-the-sky notion that the federal judiciary could somehow
be reeducated and turned into modern-day Thomas Jeffersons, writing
such things in their judicial decisions as "that government
is best which governs least."

This is all extraordinarily naïve. The government has had
an iron grip on the American educational system for generations,
and it’s not about to ease up on that grip by teaching American
school children about the virtues of limited government. This is
true of all levels of education, including – and especially
– the law schools. Furthermore, elementary public choice theory,
which Cato Institute scholars should be aware of, suggests that
this crusade will inevitably fail. The reason is straightforward:
The parties who are interested in limited constitutional government
are widely dispersed and not very well organized politically (i.e.,
the general public); whereas the advocates of ever-expanding legal
plunder (the state itself, and all of its special-interest groups)
tend to be much more concentrated and well organized. Therefore,
it is the nature of politics that the enemies of constitutional
limitations on government will win out, as in fact they have in
the U.S. for well over a century.

The Constitutionalists’ Fatal Conceit

The fatal flaw in the thinking of the libertarian/conservative
constitutionalists stems from their unawareness or willful ignorance
of how the founders themselves believed the Constitution could be
enforced: by the citizens of the free, independent, and sovereign
states, not the federal judiciary. The Constitution not only sought
to limit government with its "enumerated powers," something
that Pilon emphasizes, or the system of checks and balances, but
also with the much more important doctrine of divided sovereignty.
That is, the citizens of the states, as well as all other organs
of government, were to have an equal voice in constitutional matters.
As political philosopher Gottfried Dietze explained in America’s
Political Dilemma: From Limited to Unlimited Democracy (p. 67),
"Federalism, instituted to enable the federal government to
check oppressions by the governments of the states, and vice versa,
appears to be a supreme principle of the Constitution (emphasis

That is, the central government was given certain abilities to
police attempted infringements upon liberties – especially
economic liberties – of the states, but at the same time the
Tenth Amendment reserved to the states, respectively, and the people,
the right to police or veto the despotic and unconstitutional usurpations
of the central government. States’ rights, in other words,
was the key to enforcing the constitutional limitations on the central
state. If the people were to be sovereign over their central government,
it was to be accomplished as members of political communities organized
at the state and local levels.

But the system of dual sovereignty was all but destroyed by the
War to Prevent Southern Independence. As Dietze further observed
(p. 73): "[B]efore the Civil War . . . the nature of American
federalism was still a subject of debate. The outcome of the Civil
War ended that debate. The Nationalists emerged as victors. National
power increased as the twentieth century approached [along with]
the disappearance of states’ rights." That period of
history, Dietze concluded, was "characterized by an increasing
interference with economic freedom" and "constitutes a
constitutional revolution that can well be termed a reversal of
the revolution of 1787."

The Quixote-like libertarian constitutionalists are wasting their
time because they fail to acknowledge the essential truth about
Abraham Lincoln’s war: It overthrew the Constitution of 1789
by destroying the system of dual sovereignty and, in so doing, ended
any hope that the citizens would remain sovereign over their own
government. Indeed, early twentieth century statists and imperialists
like Woodrow Wilson celebrated this fact. As Wilson approvingly
wrote in his book, Constitutional Government in the United States
(Transactions Publishers Reprint, p. 178), "The War between
the States established . . . this principle, that the federal government
is, through its courts, the final judge of its own powers."
Of course, Thomas Jefferson and other founders always understood
that if the day were ever to come when the federal government would
become the final judge of the limits of its own powers, then it
would eventually decide that there were, in fact, no limits to its
powers. That day has long since arrived.

The Forgotten Jeffersonian Tradition

Perhaps the clearest statement of the Jeffersonian, states’
rights tradition of dual sovereignty as a defense of freedom is
Jefferson’s own Kentucky Resolve of 1798 (See William J. Watkins,
Jr., Reclaiming the American Revolution: The Kentucky and Virginia
Resolutions and Their Legacy, Independent Institute, 2003). In response
to the Adams administration’s alien and sedition acts, the
latter of which made it essentially illegal to criticize the central
government, 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 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 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.

First of all, note that Jefferson referred to the "United States"
in the plural, signifying the fact that the free, independent, and
sovereign states were part of a compact of states and not a part
of one consolidated empire ("The United States," singular),
as they are today.

In all cases of a compact where there is no common judge, such as
with the Constitution, Jefferson argued that each party has an equal
right to judge for itself the constitutionality of federal government
actions. James Madison concurred in the Virginia Resolve of 1798,
writing that if the citizens of a state decided that the central
government enacted a "dangerous exercise of powers," then
the citizens "were duty bound to interpose for arresting the
progress of the evil . . ."

Thanks to governmental control of education, the nationalists have
so dominated American political discourse that today most Americans
have only been exposed to the New England version of American history.
Consequently, they are completely unaware of the Jeffersonian states’
rights philosophy and tradition. This philosophy has been so severely
censored that William J. Watkins’s 2003 Independent Institute
book on the Virginia and Kentucky Resolves is the first book to
be published on the subject in over 100 years.

The Jeffersonian tradition was carried on in the quarter century
after Jefferson’s death most forcefully by John C. Calhoun,
who Murray Rothbard characterized as one of America’s greatest
political philosophers. Unfortunately, Calhoun has been marginalized
and defamed by the nationalists, who consider themselves to be the
gatekeepers of America’s Official History. Nevertheless, Calhoun’s
book, A Disquisition on Government, is one of the most insightful
works in all of American history, filled with ingenious insights
about the nature of democratic politics and forecasts that have
all proven to be amazingly accurate.

A written Constitution is a good thing, argued Calhoun, but those
who favor enforcing it "would be overpowered" eventually,
by the "party of government." "At first they might
command some respect, and do something to stay the encroachment;
but they would, in the progress of the contest, be regarded as mere
abstractionists; and, indeed, deservedly, if they should indulge
in the folly of supposing that the party in possession of the ballot
box and the physical force of the country, could be successfully
resisted by an appeal to reason, truth, justice, or the obligations
imposed by the constitution . . . . The end of the contest would
be the subversion of the constitution." (See Ross M. Lence,
Union and Liberty: The Political Philosophy of John C. Calhoun,
Liberty Fund, 1992, p. 27).

Calhoun further forecast that all of the constitutional restrictions
on government "would ultimately be annulled, and the government
be converted into one of unlimited powers." This has certainly
come true, despite all the efforts of "abstractionists"
like Roger Pilon and several generations of similarly well-meaning
constitutionalists. This is why Calhoun, like Jefferson, believed
it was absolutely essential for the citizens of the states to possess
"this negative power – the power of preventing or arresting
the action of the government – be it called by what term it
may – veto, interposition, nullification, check, or balance
of power . . ." It is precisely such negative power, wrote
Calhoun, that "forms the constitution" (p. 28). It is
the very essence of constitutional liberty. This power, however,
was destroyed in 1865.

The Jeffersonian Constitution

The Jeffersonian view of the Constitution prevailed until it was
overthrown by force of arms in 1861–1865. The best presentation
of this view is St. George Tucker’s book, View of the Constitution
of the United States. Tucker was a professor of law at William and
Mary College, fought in the Revolution, became a successful lawyer
afterward, adopted a young John Randolph whose mother had been widowed,
and authored one of the first plans for the abolition of slavery
in Virginia (in 1796).

Tucker warned that any confederacy would become a despotism if
the central government ever ceased being merely the agent of the
states that created it and delegated certain enumerated powers to
it. "The union of the SOVEREIGNTY of a state with the government,"
he wrote, "constitutes a state of USURPATION and absolute TYRANNY,
over the PEOPLE" (p. 24). Moreover, if the "unlimited
authority" of the central state were ever to extend so far
as to "change the constitution itself, the government, whatever
be its form, is absolute and despotic . . ." (p. 27). This,
too, has occurred, via "judicial activism" in the post-1865

The system of checks and balances is not what protects the people
from tyranny, Tucker explained. What did was "the nature and
extent of those powers which the people have reserved to themselves
as the Sovereign." (p. 28). That is, it all depends on states’
rights. Moreover, the "doctrine of non-resistance against arbitrary
power and oppression is absurd, slavish, and destructive to the
good and happiness of mankind" (p. 112). Having been created
by the citizens of the states, a free government must by bound to
the Constitution "by its creators, the several states in the
union, and the citizens thereof." Otherwise, despotism is the
inevitable result.

Tucker’s contemporary, Virginia Senator John Taylor, was
also a Jeffersonian who mocked the idea that the founders would
ever have trusted the Supreme Court to be the sole judge of constitutionality
(and the limits of government). "Being an essential principle
for preserving liberty," he wrote in Tyranny Unmasked (p. 198),
the Constitution "never could have designed to destroy it,
by investing five or six men, installed for life, with a power of
regulating the constitutional rights of all political departments."

Until 1865, virtually every state of the union invoked the Jeffersonian
states’ rights tradition in defense of liberty and against
encroachments on liberty by the central government. The New England
states "nullified" President James Madison’s trade
embargo (1807); they also invoked Jefferson’s Kentucky Resolve
in refusing to participate in the War of 1812; the New England Federalists
plotted to secede for over a decade after Jefferson’s election
to the presidency in 1800, culminating with the Hartford Secession
Convention of 1814; Ohio, Kentucky, Tennessee, Connecticut, South
Carolina, New York and New Hampshire all invoked the Kentucky Resolve
to oppose the existence of the Bank of the United States within
their borders; some New England states nullified the Fugitive Slave
Act by refusing to enforce it; and South Carolina famously nullified
the infamous 1828 Tariff of Abominations. The rights of nullification
and secession, which were accepted as inalienable rights of the
citizens of all the states, ceased to exist after 1865.

The Classical Liberal States’ Rights Tradition

Unlike Cato Institute scholars, Liberty magazine, Reason magazine,
and most other contemporary "libertarian" organizations
and publications (the Mises Institute and Independent Institute
being the major exceptions), the last generation of classical liberals
were cognizant of the importance of the great Jeffersonian states’
rights tradition to the preservation of liberty and prosperity.
In The Income Tax: Root of All Evil (p. 83) Frank Chodorov wrote

The real obstacle [to tyranny] is the psychological resistance
to centralization that the States’ rights tradition fosters.
The citizen of divided allegiance cannot be reduced to subservience;
if he is in the habit of serving two political gods he cannot be
dominated by either one. . . . No political authority ever achieved
absolutism until the people were deprived of a choice of loyalties.

Stalin, Mussolini, and Lenin liquidated any and all competing authorities,
including the sovereign states of their respective countries, before
gaining totalitarian power, Chodorov wrote.

To Chodorov, dual sovereignty or "divided authority" was
"the bulwark of freedom" for "Freedom is the absence
of restraint. Government cannot give freedom, it can only take it
away. The more power the government exercises the less freedom will
the people enjoy. And when government has a monopoly of power the
people have not freedom. That is the definition of absolutism –
monopoly of power." This lesson seems lost on most of today’s
libertarian constitutionalists, with their handy dandy pocket constitutions
and no apparent knowledge at all of the real American liberal tradition,
the Jeffersonian states’ rights tradition.

Ludwig von Mises is another classical liberal of the last generation
who understood the importance of the Jeffersonian philosophy and
was not fooled by nationalist propaganda. Commenting on the effects
of interventionism that was spawned in the United States in the
post-1865 era, and in Switzerland during the same period, Mises
wrote in his book, Omnipotent Government (p. 268) of how

New powers accrued not to the member states but to the federal
government. Every step toward more government interference and toward
more planning means at the same time an expansion of the jurisdiction
of the central government. Washington and Berne were once the seats
of the federal governments; today they are capitals in the true
sense of the word, and the states and the cantons are virtually
reduced to the status of provinces. It is a very significant fact
that the adversaries of the trend toward more government control
describe their opposition as a fight against Washington and against
Berne, i.e., against centralization. It is conceived as a contest
of state’s rights versus the central power (emphasis added).

To Mises, the whole fight against government control was fundamentally
a fight against consolidated or monopoly government and in favor
of decentralization and states’ rights. This was also a theme
of F.A. Hayek’s work, especially The Road to Serfdom, and
of Felix Morley’s classic, Freedom and Federalism. "Socialism
and federalism are necessarily political opposites," Morely
wrote, "because the former demands that centralized concentration
of power which the latter by definition denies" (pp. 3–4).

A young twenty-three-year-old Murray Rothbard also expressed the
importance of states’ rights in the fight for a free society
in a May 11, 1949 letter to the headquarters of the States Rights
Party in Jackson, Mississippi. "Although a New Yorker born
and bred," Rothbard wrote, "I was a staunch supporter
of the Thurmond movement [i.e., the Strom Thurmond for President
movement). But the problem with the Thurmond movement, said Rothbard,
was that it was too narrow, focusing primarily on the "Civil
Tyranny Program," which is how he described impending "civil
rights" legislation. The "Civil Tyranny" program
should be opposed as an affront to property rights and freedom of
association, said the young Rothbard, but what was really needed
was a national, as opposed to a merely regional, states’ rights
party to fight the "power hungry Washington bureaucracy."
Jefferson would have wholeheartedly agreed.

The great classical liberal historian of liberty, Lord Acton, was
another important historical figure who was not duped by nationalist
rhetoric. In a November 4, 1866 letter to General Robert E. Lee
Lord Acton wrote that

I saw in States’ rights the only availing check upon the
absolution of the sovereign will, and secession filled me with hope,
not as the destruction but as the redemption of Democracy . . .
. Therefore I deemed that you were fighting the battles of our liberty,
our progress, and our civilization; and I mourn for the stake which
was lost at Richmond more deeply than I rejoice over that which
was saved at Waterloo (J. Rufus Fears, Selected Writings of Lord
Acton, vol. 1, Essays in the History of Liberty, p. 363).

The Enemies of States’ Rights

Despots and tyrants have always been the enemies of states’
rights, as have all manner of power-hungry politicians and their
intellectual supporters, such as modern-day neoconservatives, especially
the nationalistic warmongers at the Claremont Institute. "9/11
proves more than ever that we need a strong federal government,"
Harry Jaffa declared during my May 2002 debate with him at the Independent
Institute, apparently oblivious to the fact that it was the failure
of our "strong federal government" that allowed 9/11 to
happen in the first place.

Then there are the weak-willed or cowardly academics, who are intimidated
by the statists’ tactic of falsely identifying states’
rights with racism or slavery as a means of censoring all discussion
of it. These are people who are much more concerned with being "accepted"
by the establishment than with discovering historical truths or
defending the free society.

In case there is any doubt about the love/hate relationship that
despots and tyrants have with regard to states’ rights, consider
Adolf Hitler’s writings in Mein Kampf (Houghton-Mifflin 1998
edition). Hitler mocked the "so-called sovereign states"
of Germany and condemned their "impotence" and "fragmentation."
He lavishly praised Otto von Bismarck for all but abolishing states’
rights in Germany, which was supposedly a victory in the "struggle
between federalism and centralization . . ." (p. 565). The
abolition of states’ rights, Hitler correctly noted, was essential
for the establishment of "a powerful national Reich" (p.

To make his case against states’ rights in Mein Kampf Hitler
quite logically turned to Abraham Lincoln’s first inaugural
address for intellectual ammunition. "The individual states
of the American Union," Hitler wrote, "could not have
possessed any state sovereignty of their own. For it was not these
states that formed the Union, on the contrary it was the Union which
formed a great part of the so-called states" (p. 566).

This is exactly the false theory of the American founding that
Lincoln invented in his first inaugural address, where he said:

The Union is much older than the Constitution. It was formed, in
fact, by the Articles of Association in 1774. It was matured and
continued by the Declaration of Independence in 1776. It was further
matured . . . by the Articles of Confederation in 1778. And, finally,
in 1787, one of the declared objects for ordaining and establishing
the Constitution was, ‘to form a more perfect Union.’

This statement is a-historical as well as logically absurd. It is
not possible for the union of two things to be older than either
of the things it is a union of. That would be like saying a marriage
(marital union) can be older than either spouse. Besides that, it
was the citizens of the free, independent and sovereign states who
adopted the Articles of Confederation and the Constitution, not
"the whole people" of the union. Lincoln was a master
of legalistic double talk, and this was one of his most "masterful"
passages. It is little wonder that, some sixty years later, Adolf
Hitler would find it so appealing.

In his 1962 book, Patriotic Gore (pp. xvi–xvii), the literary
critic Edmund Wilson noted that Lincoln had much in common with
two other "uncompromising dictators" of the nineteenth
and early twentieth centuries, Lenin and Bismarck.

[I]f we would grasp the significance of the Civil War in relation
to the history of our time, we should consider Abraham Lincoln in
connection with the other leaders who have been engaged in similar
tasks. The chief of these leaders have been Bismarck and Lenin.
They with Lincoln have presided over the unifications of the three
great new modern powers . . . . Each established a strong central
government over hitherto loosely coordinated peoples. Lincoln kept
the Union together by subordinating the South to the North; Bismarck
imposed on the German states the cohesive hegemony of Prussia; Lenin
. . . began the work of binding Russia . . . in a tight bureaucratic

Each of these men, wrote Wilson, was an uncompromising dictator
while in office who was succeeded by newly-formed government bureaucracies
that became so powerful that "all the bad potentialities of
the policies [they] had initiated were realized, after [their] removal,
in the most undesirable ways"(pp. xviii–xix).

The death of the rights of secession and nullification was achieved
in 1865, and the final nails were pounded into the Jeffersonian,
states’ rights coffin in 1913, with the adoption of the income
tax, the Federal Reserve, and the Seventeenth Amendment. The income
tax declared, essentially, that all earned income is the property
of the state, and the state will decide how much income working
Americans may keep for themselves by determining the rates of taxation.

The Fed soon became an enormous and menacing tool of political
control based in Washington, D.C., with the board of governors.
The Seventeenth Amendment, which established the popular election
of senators, relieved U.S. senators from the obligations they once
had to vote only for legislation that was generally in the interest
of the citizens of their states, since they were appointed by state
legislatures. After 1913, they were "obligated’ mostly
to whomever could give them the biggest campaign contributions.

If there is any lesson to be learned here, it is that constitutional
liberty – in America or anywhere else – is an empty
slogan unless the people possess the rights of secession and nullification.
This is how the founders intended the people to be sovereign over
their government. Until these powers are restored – and the
Fed, the income tax, and the Seventeenth Amendment abolished –
Americans have no hope of ever returning to a regime of constitutional

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