This is the sixth essay in my live-blog of Hologram of Liberty by Kenneth Royce. You can also read my Introduction, Chapter 1, Chapter 2, Chapter 3, and Chapter 4.
Does it not insult your judgment to tell you, Adopt first, and then amend!...Is your rage for novelty so great, that you are first to sign and seal, and then retract?...agree to bind yourself hand and foot--for the sake of what? of being unbound?...to go into a dungeon--for what? To get out? Is there no danger, when you go in, that the boils of federal authority shall shut you in? I look upon [the constitution] as the most fatal plan that could be possibly conceived to enslave a free people.--Patrick Henry, to the Virginia ratifying assembly (1788)
In Chapter 5, Royce gives historical evidence to prove that the concerns of the anti-Federalists writers were all justified. He concentrates on ten anti-Federalist objections to the Constitution.
- Federal statute is "the supreme law of the land" which displaces state/local law.
- Congress is virtually unlimited in legislative possibilities under the "necessary and proper" clause.
- Congress is virtually unlimited in scope of direct taxation under the "for general welfare" clause.
- Treaties give the feds municipal police power, usurping the States.
- The Senate impeaches its own members.
- Judiciary has no check or balance by the States or the people.
- Judiciary decides if Federal actions are unconstitutional.
- Judiciary interprets "spirit" of Constitution through "equity" clause.
- States helpless against federal tyranny--militia is in federal hands.
- Amendments basically in the hands of Congress.
This is a pretty long chapter so I will focus on the three anti-Federalist objections.
Federal "supreme" law gutted state authority.
Royce argues that it only took three clauses to gradually end the authority of the States and liberty in general.
- Article VI, Section 2 makes the Constitution and U.S. law paramount to the States' laws and constitutions.
- Article I, Section 8:1 gives Congress taxing powers directly over the people, bypassing the States.
- Article I, Section 8:18 gives Congress powers for implementation.
The anti-Federalist writers understood the threat and wrote valiantly to show others. Royce cites an essay from "Brutus" which reads in part,
[The Congress are] vested with the great and uncontrollable powers, of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers. And are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the state governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will....Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase ir, and to acquire a superiority over everything that stands in their way. -- "Brutus;" Essay I, October 18, 1787
The "supreme law of the land" clause established the legislative hierarchy. The general welfare clause has been contorted to include anything. And "necessary" has been construed as merely convenient. Thus, there is nothing conceivably outside the scope of Congressional interest (5/5-6). Royce cites the Alien and Sedition Act of 1798 as evidence of federal law superceding State and local law.
"all treaties made, or which shall be made..."
Just in case the courts actually overruled domestic congressional legislation, the Senate was given "the keys to the store" through treaty power:
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;--I:8:2; Constitution of the United States
This Constitution, and the laws of the United states which shall be made in pursuance therof; and all treaties made, or which shall be made, under the authority of the United States, shall be supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.--VI:2; Constitution of the US.
What this means, says Royce, is that "the Senate can sign an 'Anti-Whistling Treaty' with Portugal, and the feds would suddenly have municipal police power to punish whistling 'offences against the laws of nations'in your own backyard!" Royce provides the passage of the Migratory Bird Treaty as an example. In 1913 Congress passed the Migratory Bird Act which banned the hunting of such birds. In United States v. Shauver and United States v. McCullagh the court struck down the act as unconstitutional, arguing that it violated the 10th Amendment. In 1916 Congress signed the Migratory Bird Treaty with Great Britain and Canada, and passed another Migratory Bird Act to implement the treaty. In the 1919 case United States v. Thompson the court upheld the act as constitutional:
Even in matters of purely local nature, Congress, if the Constitution grants it plenary powers [by treaty] over the subject, may exercise what is akin to the police power, a power ordinarily reserved to the states.
Royce notes that treaties do not and cannot supercede the Constitution but are on equal footing with the Constitution. Given the equivocal language of the "necessary and proper" clause, however, the feds have municipal police power over nearly any area they wish.
The danger of this treaty power was also detected by the anti-Federalist writers. Patrick Henry addressed treaties in a June 5, 1788 speech:
The Senate, by making treaties may destroy your liberty and laws for [lack] of responsibility. Two-thirds of those that shall happen to be present, can, with the President, make treaties, that shall be the supreme law of the land: They may make the most ruinous treaties; and yet there is no punishment for them.
Feds control both the military and militias
[The Congress shall have the power]...To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;
To provide for organizing, arming, and disciplining the militia, and for government such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;--I:8:15-16; Constitution of the United States.
The President shall be commander in chief of the army and navy of the United States, and of the militia of the several states when called into the actual service of the United States...--II:2:1; Constitution of the United States
Royce makes this trenchant observation regarding insurrections:
A revolution to the oppressed is an "insurrection" to the oppressors. The federalists were pathologically fearful of insurrections, probably out of concern that the people would one day wake up to their being controlled (5/25).
The Whiskey Rebellion in 1794 and the Recent Unpleasantness of 1861 were both deemed insurrections by the federal government and put down. Once again the anti-Federalists foresaw the danger of standing armies:
...the absolute command of Congress over the militia may be destructive of public liberty; for under the guidance of an arbitrary government, they may be made unwilling instruments of tyranny. The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by a standing army, they will no doubt be successful in subduing their liberty and independency;...Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow citizens, and on one another. This power can be exercised not only without violating the constitution, but in strict conformity with it; it is calculated for this express purpose, and will doubtless be executed accordingly.--Dissenting Address of the Pennsylvania Convention Minority; December 18, 1787
My great objection to this Government is, that it does not leave us the means of defending our rights; or, of waging war against tyrants; ...Have we the means of resisting disciplined armies, when our only defence, the militia, is put into the hands of Congress?--Patrick Henry; June 5, 1788, to the Virginia Ratifying Convention
Royce concludes this section on the military saying:
The bitter truth of it all is this: the states are subject to the laws of Congress; the Supreme Court can (and will nearly) always rule against a state's complaint of Federal encroachment; and since the feds control both the military and the militia, there's little the states or the people can do about it! This should now be acutely obvious to all (5/27).
Despite the anti-Federalists' efforts, the Constitution still became law. The Federalists knew what they wanted to accomplish, planned extensively for months, drafted the Constitution in secret, and sprung it upon the public. The anti-Federalists were caught off-guard and could not mount a unified defense. But what I found most depressing after reading this chapter is that conservatives and some libertarians still defend the Constitution. They still argue that it is properly interpreted, liberty will flourish. "That is what the Founders intended," they argue. It still amazes me that they can make this argument given the plethora of historical evidence which says otherwise.
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