Our conservative Constitution

Brion McClanahan Author, The Founding Fathers Guide to the Constitution
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In the last week, the left has orchestrated a public assault on the Constitution. This is nothing new, but the offensive is noteworthy because it involved both a Supreme Court justice and the president of the United States. On January 30, Supreme Court Justice Ruth Bader Ginsburg said during a television interview in Egypt that, “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Six days later, President Barack Obama told Matt Lauer that, “I have not been able to force Congress to implement every aspect of what I said in 2008 … it turns out that our founders designed a system that makes it more difficult to bring about change than I would like sometimes.” And the following day, New York Times contributor Adam Liptak wrote that, “The Constitution has seen better days. … The United States Constitution is terse and old, and it guarantees relatively few rights.”

To progressives, the Constitution serves as a continual impediment to their legislative agenda. Liptak continued in his piece that perhaps there are “newer, sexier, and more powerful operating systems in the constitutional marketplace.” In other words, the Constitution is an archaic relic that needs to be discarded and replaced with something better. Obama essentially said the same thing in his State of the Union address when he called the executive branch “outdated.” This tune has been played before, both by the left and more importantly by James Madison in 1787.

The standard interpretation of the 1787 Constitutional Convention in Philadelphia has “large state” advocates such as James Madison of Virginia pitted against “small state” proponents like William Paterson of New Jersey. According to this narrative, the small states, such as Delaware, New Jersey, Maryland, and South Carolina, were concerned that larges states such as Virginia, New York, and Massachusetts, were attempting a power grab in Philadelphia through Madison’s famous Virginia Plan. It would have scrapped the Articles of Confederation — the first governing document for the United States — and replaced it with a Constitution that had a bicameral legislature with representation based on population in both houses, a supreme court, and an executive branch. Madison was searching for a “newer, sexier, more powerful operating system.” He would not get his wish. His constitution fell apart almost immediately after it was presented by Edmund Randolph in the opening days of the convention.

The conservative backlash against Madison’s plan was led by men like John Dickinson of Delaware, Roger Sherman of Connecticut, Luther Martin of Maryland, George Mason of Virginia, and John Rutledge of South Carolina. Madison is often called the “father of the Constitution,” but the final document had more of Sherman, Dickinson, and Rutledge in it than Madison. Dickinson famously said during the Convention that “Experience must be our only guide. Reason may mislead us.” This was a slap at Madison’s “reasonable” changes to the central government. Dickinson later added that, “If the state governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequence would be, that the national government would move in the same direction as the state governments now do, and would run into the same mischiefs” such as depreciated paper currency, high taxes, and oppressive legislation. Sound familiar?

The real debate in Philadelphia, then, was not between large states and small states; it was between nationalists and federalists. The nationalists, such as Madison, Alexander Hamilton, James Wilson, and Gouverneur Morris, wanted to abolish the states and create a singular central government charged with legislating for the American people as a whole. The federalists (often miss-labeled the anti-federalists) resisted, and while they were willing to give the central government greater strength, they insisted that the states retain control of the government with the exception of certain delegated or enumerated powers. They won the debate, as proponents of the Constitution continually pointed out during the ratification process. As William Richardson Davie of North Carolina said in 1788 in arguing for the ratification of the Constitution, “If there were any seeds in this Constitution which might, one day, produce a consolidation, it would, sir, with me, be an insuperable objection. I am so perfectly convinced that so extensive a country as this can never be managed by one consolidated government.”

Americans need to redefine how they think of the central government. The founding generation called it a “general” government charged with general purposes for the States United. The states, as the Tenth Amendment to the Constitution clearly illustrates, retained all power not delegated to the central authority. So, what did the founders call “general” purposes? Roger Sherman, the man who added the infamous “general welfare clause” to the Constitution (which was simply lifted from the Articles of Confederation), argued it was nothing more than defense, both internal and external, trade, and commerce with “All other matters, civil and criminal” left “in the hands of the states.” David Ramsey of South Carolina suggested that the “powers of Congress … may be referred to this single principle, ‘that the general concerns of the union [not individuals] ought to be managed by the general government.” (Emphasis added.) Madison said in 1791 that giving Congress unlimited power “would render nugatory the enumeration of particular powers [and] would supercede all the powers reserved to the state governments.”

Of course, if the states delegated authority to the general government, they had to first possess it and by delegating power they still retained it. A delegated power can be rescinded. The states, or the people of the states in convention, consented to the Constitution because it was and is a constitution “for the United States” and “between the States so ratifying the same.” The Constitution established a union of states. The founding generation, with a few exceptions, feared a “national” government that could micromanage every municipality and county in the union. Even an ardent nationalist like James Wilson recognized this when he said in the 1787 Pennsylvania ratifying convention that “To support with vigor, a single government over the whole extent of the United States, would demand a system of the most unqualified and the most unremitted despotism.” A limited government that handled only the general concerns of the union allowed the states to govern their domestic concerns freely and without interference from the central authority.

The beauty of the founding fathers’ Constitution as ratified by the states in 1787 and 1788 is that it allowed for the greatest liberty and independence of the people. Many considered a bill of rights unnecessary, for example, because the states already had their own and thus the general government could never infringe on the liberty of the people, and because the states protected that liberty by serving as a hedge between the people and a tyrannical central authority. In short, another bill of rights was redundant. When Madison finally put the Bill of Rights to a vote in Congress, he wanted to incorporate them into the state constitutions but was resoundingly defeated, not because the other members of the Congress desired a tyranny at home, but because their liberties were already legally protected at home.

The union of the founders was a conservative union that respected differences among the states and the people of the states. Three states had established churches in 1787 while others, like Virginia, enjoyed religious freedom. Every state viewed the penal code differently. Every state had differences in citizenship and voting requirements. The cultures of each state were protected by a general union for general purposes. As the ardent proponent of the Constitution Tench Coxe wrote in 1788:

The several states can create corporations civil and religious … establish seminaries of learning; erect boroughs, cities, and counties; promote and establish manufacturers; open roads; clear rivers; cut canals; regulate descents and marriages; licence taverns … establish ferries; erect public buildings … establish poor houses, hospitals, and house of employment; regulate the police; and many other things of utmost importance to the happiness of their respective citizens. In short, besides the particulars enumerated, every thing of a domestic nature must or can be done by them.

And by default, Coxe also added that the general government could not do any of these things or “do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive, or judicial, civil or ecclesiastical.” How refreshing. If Americans, left and right, relied on the federal principles of the Constitution as ratified by the states, then they would have nothing to fear from the general government. Socialists could have their utopia in California or Massachusetts while conservatives would be shielded from that type of society in Alabama or Mississippi. That would be the most democratic course to follow.

The rub today is not between socialists and capitalists as some would suggest. It is the age-old debate between nationalists and federalists that began in 1787 at the Philadelphia Convention. Obama, Ginsburg, and the progressives (those on the right included) are nationalists bent on centralizing power in Washington, D.C. and destroying the states. They use terms such as civil rights, diversity, and equality to mask their agenda of establishing a “United State” with a unified culture under their guiding hand. They implicitly recognize by denouncing the Constitution that the founding generation opposed consolidation, and rightly so. The left argues that it is “reasonable” to conclude that the “national” government needs reform and perhaps a new Constitution. Madison said the same thing, but his experiment in government had been attempted before, and history had shown that extreme centralization, which is what the nationalists wanted, always resulted in tyranny. Americans should be thankful that men like John Dickinson won the day and should resist the “reasonable” urge to adopt a “sexier” system that would only give us more centralization and more government. As the famous opponent of the Constitution “An Old Whig” wrote in 1787:

It is a matter of immense consequence, in establishing a government which is to last for ages, and which, if it be suffered to depart from the principles of liberty in the beginning, will in all probability, never return to them, that we consider carefully what sort of government we are about to form. Power is very easily increased; indeed it naturally grows in every government but it hardly ever lessens.

Brion McClanahan holds a Ph.D. in American history from the University of South Carolina. He is the author of The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009) and The Founding Fathers Guide to the Constitution (Regnery History, 2012), as well as the forthcoming Forgotten Conservatives in American History with Clyde Wilson (Pelican, 2012). You can find his Facebook fan page here.