Concepts of the Constitution

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At the time when a new constitution was called for it was not because of an eminent crisis or the inability of the states to deal with disputes.  There were a number of cases where disputes between states were resolved including Maryland and Virginia on navigation rights in the Chesapeake Bay (1 pp. 129-30). War debt along with post war trade to the West Indies and access to fisheries were serious problems but these issues were concentrated in New England and Massachusetts in particular (1 p. 111). Taxes placed a heavy burden on poorer farmers and imprisoning people for tax debt was commonplace. These conditions led to Shay’s rebellion and a high level of tension between western agricultural and eastern financial and trading interests. Centralization, however, wouldn’t directly solve any of these problems; it would only facilitate localized problems to be spread more broadly.  In keeping with this point, those who were calling for a new constitution were from states that were dealing with tax insurrections, Indian conflicts, or were trading economies that thought they would benefit from a more active central government (2 p. 38).  Apart from Alexander Hamilton, few had a vision of creating a centralized nation state.

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Trade issues are especially noteworthy in the creation of the new constitution.  A perhaps fatal flaw in the Articles of Confederation was the inability to deal with international trade disputes.  The founders generally favored free trade and many had a concern that protectionism would favor industrialists and bankers over an agrarian society which was, of course, proven to be true.  British trade policies were not based on “free trade” but were a national industrial policy that took different forms at different times and places. Prior to the revolution the British Trade and Navigation Acts (1660, 63, 72) sought to directly block the colonies from manufacturing and required all shipping to and from the colonies to go through British ports and pay duties. By 1677 there was a 10 to 1 trade imbalance between the colonies and England which remained until the revolution. Even during the revolution it was 3 to 1 (3). Later British trade strategy would evolve towards capital controls and selective dumping that targeted foreign producers.

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During the revolution American manufacturing expanded due to inability to get imports but after the end of the war in 1783 the British started dumping goods at prices the American producers couldn’t match (3). Independence as opposed to creating opportunity and prosperity caused the economy to sink even lower as the result of a trade war that only one side was fighting. The principal weakness of the Articles of Confederation was that it didn’t provide a means to deal with a trade war and stop deindustrialization. As the constitution was being formed many of the framers were adopting the position that protective tariffs were necessary to deal with Britain.  James Madison said in a speech to congress in 1789 that “commerce ought to be free” but then went on to explain that that only works if everybody plays by the same rules saying: “If America was to leave her ports perfectly free, and make no discrimination between vessels owned by her citizens and those owned by foreigners, while other nations make this discrimination, it is obvious that such policy would go to exclude American shipping altogether from foreign ports, and she would be materially affected in one of her most important interests.” Fisher Ames, who took part in the Convention, stated that, “the present Constitution was dictated by commercial necessity more than by any other cause. The want of an efficient government to secure the manufacturing interests, and to advance our commerce, was long seen by men of judgment and pointed out by patriots solicitous to promote our general welfare.” (4 p. 17) 

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The drafting of the Constitution was intended to be a matter of adjusting the balance of power slightly as most understood the dangers of giving too much power to a central authority (2 p. 39). In the ensuing ratification debate the federalist side was aided by two factors. The Federalist controlled the press and struck quickly to control the debate. Federalist supporters tended to be wealthier, educated, concentrated along the eastern seaboard generally in towns and cities, and were largely of puritan origin. The anti-federalists were geographically scattered and were typically subsistence farmers who originated from the Borderland regions (Scot-Irish). Their leaders, mostly cavalier planters, were educated and wealthy but acted slowly and were not nearly as vehemently opposed to nationalism as the voters who had supported them (1 p. 215).  In the end the country wound up with a far more centralized form of government but with a bill or Rights that gave substantial protection to the states and individual citizens, at least in relation to the federal authority that was still far from the leviathan it was to gradually become.

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The US government grew both steadily and in spurts by the twisting of the constitution and by simply ignoring it. Perceived crises of various sorts have always been used to expand the federal power by those who would benefit from it. Both the constitution itself and the views of those who created it have been misrepresented to the point of creating a sort of alternate beginning that stems from historical context that is more a projection of modern prevalent academic views than a representation of the world the founding generation lived in and knew of. Mel Bradford in Original Intentions said of this:

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"Because it is the current fashion to read history backward, tracing the records of actions and attitudes retrospectively from our own time through 1763 instead of forward from, shall we say, the Norman Conquest, it is predictable that this generation should persist in construing the United States Constitution in a vacuum, that they should forget how most of our American forbearers cherished the English constitution and did not change their opinion of its merits just because Parliament and the ministers of King George III failed to observe some of its provisions. When we see the framers in proper historical context, it becomes clear that their handiwork, like its prototype, “was the result not merely of philosophy but of a historical up growth”   M.E Bradford (5 p. 18)

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Bradford then went on to observe as much as three fourths of the document, including the Bill of Rights, makes no sense apart from an understanding of British legal history and scholarly commentary before 1930 emphasized the continuities (5 p. 19).

Some of the more serious modern misrepresentations of constitutional intent are briefly summarized as follows:

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Gun Rights: The concept of citizens having the right keep and bear arms was deeply rooted in British history and was firmly established by 1689.  Along with maintaining a standing militia, this was commonly understood as a fundamental check on government tyranny allowing the people to defend themselves from the government. This is how the concept would have been understood in the context of the time. Early American constitutional scholar George Tucker in Blackstone Commentaries wrote “In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty” (2 p. 49).  Early debates around the 2nd Amendment pertained to Quakers and a consciousness objector clause regarding military service.  Anti-federalists along with Virginia, New York, and Massachusetts, all of which conditionally ratified the constitution, required specific recognition of this guaranteed right (2 p. 50) which has preserved private gun ownership in the US while other Western countries typically have severe restrictions.

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Freedom and Practice of Religion: Of all the misrepresentations of the founding principles, this is perhaps the greatest and has been a key factor in reshaping the culture(s) of the country. Europe and England in recent history at the time of the constitution had been torn apart by Christian factional fighting.  As recently as 1650 England fell under a theocratic dictatorship with the rule of “Lord Protector” Oliver Cromwell when the parliamentarians (Puritans) emerged victorious. This was followed by back and forth reprisals as the balance of power shifted. The primary objective of the founders was to avoid this sort of destructive sectarian conflict by not having a state church to contend over (2 p. 52).

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The degree to which the founders believed in religious liberty did not even extend fully to the existence of established churches. Massachusetts and Connecticut maintained state churches well into the nineteenth century and these states would not have ratified the constitution if this was challenged (2 p. 52).  Patrick Henry argued that Virginians could belong to any church but had to pay taxes or tithes to support it (2 p. 52). There is no evidence that any of the founders sought to remove religion from public dialogue and the debates around public education weren’t even relevant as the institution largely didn’t exist at the time. The churches were instrumental in providing education.

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The founders were generally devout, church going men who shared a common protestant tradition but retained significant differences in their specific beliefs and ethno-religious cultural identity. Of the founders, those most likely to be seen as non-Christian were Jefferson, Franklin, Madison and arguably John Adams later in his life. Adam’s changing theological beliefs were representative of ever evolving Puritan theology. Still they represented a Judeo-Christian world view, were consistently supportive of Christianity and saw it as being a positive good to society.  George Washington believed that God saved the revolution and was a devout Christian in the years following the war (2 p. 53). Even Hamilton, who is portrayed as a hero by the modern left, formed a religious society in New York and requested last rights from an Episcopalian priest while on his deathbed (2 p. 53). (Also a story that has gained some traction amongst modern progressive historians that he was homosexual is largely baseless.)

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States Rights and Secession:  States Rights is commonly seen and portrayed by modern academics as being synonymous with slavery and secession as treason but again this is traceable only to modern historical revision. The concept of dual sovereignty, documented in Federalist Essays 40 to 44 by James Madison, presented the federal government as being sovereign only within its defined authority with the states retaining all powers not expressly denied in the Constitution (2 p. 54). 

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The Tenth Amendment was to act as a firewall against the overreach of the central government but it was quickly ignored much as it is today. In 1798 the Federalist dominated government passed the Alien and Sedition Act making it illegal to speak against the President or the Congress (call into disrepute) which is also a fairly obvious violation of freedom of speech under the first amendment.  In response, Jefferson and Madison secretly authored a set of resolutions that went to the legislatures in Virginia and Kentucky declaring the Alien and Sedition act to be a violation of the first amendment and civil liberties (natural rights concept). Jefferson in the Kentucky Resolutions wrote, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force” (2 p. 55). This is the doctrine of nullification holding that a state can nullify an illegal act by the federal government.  Through doctrinal expansion of federal authority by way of the judicial branch, starting with Chief justice Marshall, over decades we wound up with the concept of Federal supremacy but this was not in any way established or conceded in this time period.

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Secession also was not initially associated not with the anti-Federalists but with the Federalists and the New England states before they had an economic and population advantage in control of the Republic. New England states threatened to secede several times including during the War of 1812 (2 p. 56) in part due to economic hardships placed on the trading economy that were thought to be disproportionate and also over the desire of many in New England to militarily claim Canada. When the circumstances changed, so did the interpretation.  Still, prior to the War Between the States the idea that secession was illegal or an act of treason wouldn’t have drawn any serious defenders and the concept is still broadly supported today.  It is a voluntary union.

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Executive Authority: The executive branch of the federal government has grown beyond what any of the founders could have imagined and the growth of executive power has also extended to state governors and even local authorities. This has again happened both gradually and in spurts with the War Between the States and World War I acting as springboards and is also the result of legislative branches abdicating their defined powers and responsibilities. In turn the agencies under the executive branch have become populated with what amounts to a permanent government of professional government service employees who are well insulated from voters and today are frequently referred to as the “Deep State”.  The concept of executive orders and emergency powers was only intended to apply to emergency situations where the legislature didn’t have time to act. Prolonged wars specifically could not be entered into by executive degree.

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The executive was not to be the chief legislator and cannot make laws or create treaties by decree.  The president is not authorized to do much of anything without legislative approval and, for the first thirty-six years, his primary job was foreign policy (2 p. 59). Congress passed laws and the president could veto them but, for the first few administrations, this was only done if they were viewed by the executive to be unconstitutional. No president during this time period used the veto for partisan political purposes (2 p. 60) . George Mason and Ben Franklin, representing different areas, cultures, and beliefs both feared the expansion of the executive. George Mason stated during the Constitutional Convention that the document facilitated “a … dangerous monarchy – an elected one” while Franklin stated “the first man put at the helm (Washington) will be a good one.  Nobody knows what sort may come afterwards.” (2 pp. 60-61) Both understood the natural progression of power.

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This then goes back to the question of Romans 13 for the Christian believer. In a constitutional republic, does authority belong to the office with specifically defined legal authorities and constraints or does it go to the temporary occupant of the office? If authority is defined by law and those occupying an office exceed their legal authority to act, at some point does is not become permissible, or even an obligation, to rebel against the authority who has first rebelled against the law that gives him authority in the first place?

The Central Bank: Prior to the founding of the Federal Reserve under Wilson, the creation of a national bank was always a contentious topic. Without a central bank the government cannot finance itself by inflating the currency which itself is as strong a constraint as any legal boundary. Jefferson, Madison, and many others of the founding generation were opposed to such an institution.  Jefferson called the First Bank “one of the most deadly hostilities existing against the principles and form of our Constitution” (2 p. 61).  Hamilton is known for being a strong supporter of the bank which Jefferson thought to be unconstitutional. The constitutional argument failed in 1791 but, when the Federalists were out of power, the bank lost its charter in 1811 (2 p. 62).

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Standing Armies: Washington saw standing armies as “dangerous to the state” and the founders generally shared this belief (2 p. 66). They were knowledgeable of classical history and when Rome developed standing armies around the time of the Punic wars it was frequently seen as a transitional time when Rome went from a republic to an imperial empire. Domestic issues were to be addressed by a militia.

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General Welfare Clause:  This clause served as a flood gate for the massive expansion of government based on an opportunistic misreading of the constitution.  The clause is currently seen, probably by most, as a provision that allows the government to spend and administer virtually any improvement project of social experiment that it deems to have common benefit, which in turn, can be defined to support virtually anything. The general Welfare clause was taken directly from the Articles of Confederation. The explanation from the articles read, “All charges of war, and all other expenses that shall be incurred for the common defense or general welfare” should be taken from the treasury. This was intended to address expenditures that benefited the entire union and not targeted expenses that benefit only individual states or regions (2 p. 78). It was commonly seen as addressing military expenses. Presidents Madison and Monroe both vetoed legislation that would have used federal funds for internal improvements but these sorts of expenses would become defining characteristics of the Whig and then the Republican Parties. The overwhelming majority of what the federal government now does, perhaps as much as 90%, is unconstitutional based on correct reading of the Constitution derived from the founders intent and understanding (2 pp. 77-80).

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Considering how fast and to what extent the country moved away from the original intent of the constitution, it might be reasonable to question whether the founders were naïve to the danger, simply didn’t word the document well enough to protect it, or if some of the founders who favored nationalism didn’t influence the wording to allow for a sort of “Trojan Horse.”  There is probably some truth to each of these. Certainly some of the anti-federalists were acutely aware of what could happen:

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“The present moment discovers a new face in our affairs. Our object has been all along to reform our federal system and to strengthen our governments, to establish peace, order and justice in the community; but a new object now presents. The plan of government now proposed is evidently calculated totally to change, in time, our condition as a people. Instead of being thirteen republics under a federal head, it is clearly designed to make us one consolidated government.......:This consolidation of the states has been the object of several men in this country for some time past. Whether such a change can ever be effected in any manner, whether it can be effected without convulsions and civil wars, whether such a change will not totally destroy the liberties of this country, time can only determine”   - Richard Henry Lee, 1787 (6)

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“We dissent, first because it is the opinion of the most celebrated writers on, and confined by uniform experience, that a very extensive territory cannot be governed on principles of freedom, otherwise than by a confederation of Republics, possessing all the powers of internal government, but united in their general, and foreign concerns.......We dissent, secondly, because the power vested in congress by his constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government, which from the nature of things will be an IRON-HANDED DESPOTISM, as nothing short of the supremacy of despotic sway could connect and govern these United States under one government.” (7)

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The treatment given the Articles of Confederation and the Constitution here is somewhat condensed. There are several books and authors that acted as sources and should be acknowledged as references for further study. Murray Rothbard in Volume 5 to his exhaustive five volume study of Colonial America addresses the Articles of Confederation and the political process at play in selling the need for a new constitution. M.E. Bradford’s Original Intentions on the Making of the United States Constitution and Forrest McDonald’s Novus Ordo Seclorum The Intellectual Origins of the Constitution both provide detailed historical analysis of the founder’s intentions apart from modern political narratives.

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Bibliography

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1. Rothbard, Murray N. Conceived in Liberty Vol V, The New Republic 1784-1791. Auburn Alabama : Mises Institute, 2019.

2. McClanahan, Brion. The Politically Incorrect Guide to the Founding Fathers - The Greatest Generation in American History. Washington DC : Regnery Publishing, 2017.

3. Poe, Richard. How the British Caused the American Civil War. Lew Rockwell.com. [Online] December 31, 2021. https://www.lewrockwell.com/2021/12/richard-poe/how-the-british-caused-the-american-civil-war/.

4. Harriman, Daniel G. American Tariffs from Plymouth Rock to McKinley. New York : Isha Books, 1892. 10:9333103007.

5. Bradford, M.E. Original Intentions on the Making and Ratification of the United States Constitution. Athens Georgia : The University of Georgia Press, 1993.

6. Lee, Richard Henry. Anti-Federalist Letters. Chapter 8, document 12. Multiple : Multiple, October 8, 1787.

7. Anti Federalist Delegation. Address and Reasons for Dissent. Documents of Continental Congress. Philadelphia Penn : s.n., December 12, 1787.