Illegal, Unconstitutional, and Unjust

Patrick Henry

The historian Andrew C. McLaughlin in 1932 wrote that the British imperial system was characterized “by diversification and not by centralization….The empire of the mid-eighteenth century was a diversified empire” with power “actually distributed [among] and exercised by various governments.” British colonies, including Ireland, “had long existed” as “bodies, corporate, constituent members of the Empire,” each with its own constitution and a government “with many powers and with actual authority.”

The historian Jack P. Greene concluded that Americans lived under two governments, “one imperial in scope and exercising full general powers over foreign affairs, war and peace, and external trade and the other a colonial government that “was peculiarly his own.” He continued, “although the several colonial governments were by no means “in possession of complete authority,” they had long exercised actual and virtually exclusive jurisdiction over almost all matters of purely local concern.”

The historical record is littered with colonial assertions of this position, and though the Parliament did not concede the point, Americans developed a clear understanding of what we now call federalism through the British imperial model. The Parliament and king represented the center and had limited jurisdiction over trade and foreign affairs; the colonial legislatures did all else. Thus, James Madison’s exposition of federalism in the Federalist Essays was forged before the Constitution of 1787 was written. Its roots are older than that document. The rights of Englishmen, the colonists asserted, were theirs as British citizens and had not been annihilated by their emigration to the new world. Those rights included the ability to tax themselves through their legislative bodies, not a foreign entity an ocean away or even in a central location in America.

The events leading to the American War for Independence illustrate this point and date to the Albany Plan of Union of 1754. Benjamin Franklin’s plan for organizing the colonies into a defensive and commercial alliance mirrored the imperial model of Great Britain, but the colonies themselves refused to support it because, as Franklin said, “The colonial assemblies and most of the people were narrowly provincial in outlook, mutually jealous, and suspicious of any central taxing authority.” That provincialism was evident throughout much of American history, long into the 19th century and even after. Strains of it can still be found today and is perhaps stronger in the South than anywhere else.

When the British Parliament attempted to assert its authority following the French and Indian War, the colonial response indicated that they did not regard Parliamentary laws as supreme. The act of interposition or nullification was in fact born in the colonial period and was not fabricated by Thomas Jefferson or Madison in 1798 or John C. Calhoun in 1828. It is as old as the American colonial experience and even applied to inter-colonial politics.

In colonial Virginia, the county courts exercised almost complete control of the legal system and served as a hedge between Richmond and the people. They were no mere corporations of the State as they are today. Colonial South Carolina had a top down or unitary system, but in Virginia, when power shifted in Richmond, it would not always alter the county governments. The House of Burgesses could pass new legislation, but it was only supreme if the courts chose to enforce it and deemed it constitutional. Power in colonial Virginia emanated from the bottom up.

When Patrick Henry introduced the Virginia Resolves in 1765 and argued “That the general assembly of the colony, together with his majesty or his substitute have in their representative capacity the only exclusive right and power to levy taxes and impositions on the inhabitants of this colony and that every attempt to vest such a power in any person or persons whatsoever other than the general assembly aforesaid is illegal, unconstitutional, and unjust, and has a manifest tendency to destroy British, as well as American freedom;” and though not passed “That his majesty’s liege people, the inhabitants of this colony, are not bound to yield obedience to any law or ordinance whatsoever designed to impose any taxation whatsoever upon them, other than the laws and ordinances of the general assembly aforesaid…and That any person who shall by speaking or writing maintain that any person or persons other than the general assembly of this colony have any right or power to impose or lay any taxation whatsoever on the people here shall be deemed an enemy to this his majesty’s colony,” he was expressing a widely held view of legal power in colonial Virginia. He advanced interposition to arrest unconstitutional British acts. The colonies were the only legal authority over their sphere of influence. Proponents of the Constitution argued this model stayed intact under the new document.

Yet, opponents of the Constitution in 1787 and 1788 feared the taxing power of the new central authority would be too great. They insisted that the State governments would be starved for revenue as federal tax collection agents would swarm the States looking for every sliver of coinage they could find. Many American tax payers today fork over close to fifty percent of their income in taxes to all levels of government. Tax collectors are not poor at any level, but Americans wallets are being shellacked on a daily basis. The founding generation would insist that most of these taxes are unconstitutional. Perhaps it is time to invoke the ghost of Patrick Henry.

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