Part II of a Five Part Series. Part I
Taylor stood on liberal ground in holding that men were a mixture of good and evil. Self-interest was the only real constant in human action.43 He broke with archaic-republican ideas of mixed constitutions and social balance. His key idea was to divide power up so many ways, federally and departmentally that no set of officials possessed enough of it to overawe the government or the people. This goes far beyond the tame notions of “checks and balances” and “separation of powers.”
The end of government was the protection of men’s lives, liberty, and justly acquired property. Government rested on the “natural, individual right of self government,” not on social contract. By denying conventional social contract theory, Taylor avoided the implication that people surrender natural rights by a compact among themselves or with their “rulers” or institutions. If anything, this makes Taylor more radical than Locke and brings him closer to Thomas Paine, whom the neo-Aristotelian philosopher John Wild saw as a better exponent of natural law than Locke. Instead, sovereignty resulted from men’s living together in a community, and this sovereignty organized the protection of the individual. True to his Antifederalist origins, Taylor located sovereignty – the ultimate right of self-government – in the peoples of the states, or “state-nations” and not in a fancied, single people of the United States in the aggregate. For Taylor, the state governments were already good enough. He was far more concerned with the problem of dividing and taming central power through federalism.
Merrill Peterson writes that “Taylor, with a hard knot of Virginia Republicans, had never overcome the Anti-Federalist dogma on the Constitution. Wrong in essential principles, the compact necessarily produced vicious effects, as in the centralized privilege and corruption of the Hamiltonian system, and no mere change of men or of party could set the government aright.” Indeed, Taylor wrote that, at the constitutional convention, there had been a “monarchical” school (represented by Hamilton) and a “consolidating” school (represented by Madison), but that their opponents had kept both somewhat within bounds.
In an age rife with half-digested social contract theory, Taylor was rather uninterested in “social contract” at the level of the states. He took the states as given and discussed how they had contracted with one another to create a limited union under certain rules, with a common agent. These rules were, for Taylor, “political law,” setting structural, procedural, and substantive restraints on power. Taylor had to break new ground in order to achieve the goals of American republicanism. In so doing, he opened up a Southern front against James Madison’s theory of the union.
According to historian Michael Kammen, however, Southern politicians and publicists willfully and wickedly misrepresented the ideas of Madison. Thus William Giles and John C. Calhoun attached to Madison, the Father of the Constitution, certain views on states rights, secession, and the like, hoping thereby to gain prestige for their nefarious, new-fangled readings of that instrument. In other words, they lied about Madison’s real views, views naturally more authoritative than their own. There is also the related allegation – from other sources – that Calhoun opposed public funding for the printing of Madison’s journal of the Constitutional Convention out of “fear” that the document would overthrow his (Calhoun’s) “theory” of the union.
But the answer to these claims is that Madison’s views existed in some flux and that in confusing different audiences Madison managed to confuse himself. To the extent that Madison had a consistent view of the nature of the union, it was indeed different from that of the Virginia School – Taylor, Roane, and (sometimes) Jefferson – and their successors. The latter knew full well that Madison was unreliable on the fundamentals. Allegedly “new” views of the constitution were needed precisely because Madison and his allies had made a complete muddle of all the important questions. They intended (one supposes) that their conscious obfuscations would protect the public mind from unnecessary worry, giving the “new paper” a chance to work. It was left to Taylor to unravel these knots. Later, as the questions became more pressing, Calhoun entered the fray to address the problems created by the Federalists’ artful dodging.
For many of the framers, the U.S. constitution was sui generis: somehow providing a confederation and at the same time a true national state. Madison wrote that ratification was “the act of the people, as forming so many independent States, not as forming one aggregate nation,” but such language seems to have been a sop to the “fears” of opponents. In the famous Tenth Federalist, Madison inverted the traditional view, pressed by Antifederalists, that a government on a grand scale could not remain republican, and asserted that to “extend the sphere” actually solved the problem of “faction.” But an expanded (and expanding) union to dilute and alleviate faction presupposed, as Williams observes, an American mercantilism. By tying republican liberty to territorial expansion Madison long anticipated Turner’s frontier thesis and read a kind of imperial logic of empire into the constitution.
Madison’s political science dodged substantive questions of ultimate power and the actions of the first Congress under the new “paper” began the refutation of Madison’s optimistic theorem. By contrast, Taylor hoped for divisions of, and limits on, power to cut off organized state favoritism, which was the cause and instrument of faction. A well-ordered republic need not expand to prevent faction. That course was unwise, in any case. Empire would undermine liberty through war, armies, debt, and taxes – the whole array of anti-republican (Court) policies. Mercantilism and empire ran in the same stream.
3. Competing Pieces of Government
John Taylor opposed unalloyed sovereignty and upheld the Antifederalist position that self-government rested, finally, with the peoples of the several states, who by a new “political law” had delegated the exercise of certain powers to a general agent, itself not sovereign. In extremis, the natural right of self-defense permitted state interposition (nullification) to oppose federal usurpations. As a last resort, secession was both a constitutional and revolutionary remedy.
4. Divisions of Power
Taylor supposed the states to possess full concurrent jurisdiction with the federal government, hence his strenuous attack on John Marshall’s decision denying Maryland the right to tax the National Bank (McCulloch v. Maryland, 1819). Taylor denied that Supreme Court decisions set binding precedents for the state courts to follow. They applied at most between the parties to the particular case. Taylor admitted the possibility of differing constructions of the same constitutional provisions but saw such an outcome as better than allowing the Court to rewrite the constitution at will. The Supreme Court’s “usurpation” of final interpretive say would effectively transfer sovereignty to the general government. Mudge sees Taylor’s system as “a laissez faire notion applied to the elements of government” and M. J. C. Vile calls it a “fantastic picture of a fragmented governmental system” with the “virtue [of] consistency.” William Grampp characterizes it as “the most extreme extension made in America of the idea of a minimum state.”
5. Spheres of Action without Sovereignty in the Spheres
In his Inquiry (1814), Taylor writes that political law is meant to control all representatives and agents. The people retain ultimate rights over the system, despite “the doctrine that this power, having thought and spoken once, had lost the right of thinking and speaking forever” – precisely the nationalist and Straussian view of the “founding.” Taylor continues: “If a sovereign power, by one declaration of its will, does not lose its sovereignty, it must retain also an unlimited freedom, in whatever is necessary towards any future declaration of its will; otherwise its first will, must be its last will.” In the federal union, “The people of the states, treated and united as independent of each other, surrendered a portion of their independent rights, into a common treasury, and retained another portion. The contract derives its force, not from the consent of a majority of the states, but from the separate consent of each.” Thus if a minority of the Senate should block a much-wanted constitutional amendment, the states might call “a convention; the result of which any one state may refuse to concur in, because each state will resume its original right to refuse or consent, as being independent of each other in negociating the terms of a new union.”
6. ‘Construction Construed’
Taylor’s Construction Construed (1820) throws more light on these matters. The book’s immediate target was John Marshall’s decision in McCulloch v. Maryland (1819). Taylor writes that, “The unknown powers of sovereignty and supremacy may be relished, because they tickle the mind with hopes and fears….” Further, “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by Kings. Though they committed the theft, aristocracies and republicks have claimed the spoil.” In any case, the “idea of investing servants with sovereignty, and that of investing ourselves with a sovereignty over other nations, were equally preposterous.” (Now of course “we” do both.)
This was because “Sovereignty is neither fiduciary nor capable of limitation.” In North America, we had concluded that sovereignty had been the “root” of oppression, despotic power, and “pecuniary fanaticism.” We therefore meant “to eradicate it by establishing governments invested with specified and limited powers.” Thus, under our systems, “the people or the states retain all the powers they have not bestowed” and “ungranted rights remain also with the grantors, but these are the people.” This “canon” of constitutional interpretation, by which powers “not granted” are actually taken to be not granted, or nonexistent, failed to impress John Marshall and the founders of Harvard Law School; or, to the extent it impressed them, they found ways around it. And yet it set a certain standard.
7. Means and Ends, Ends and Means, and So On
Taylor wished to sideline the whole rhetoric of sovereignty. In his view, Americans had never bought that tired old horse. With respect to Marshall’s method for turning means into new powers, he says:
‘Previously to our revolutionary war, the colonies had been thoroughly lectured upon the subjects of sovereignty, supremacy, and a division of powers…. The parliament contended, that the right of making war, conceded by the colonies, implied a right of using all the means necessary for obtaining success; such as raising a revenue, appointing collectors, raising troops, quartering them upon the colonies, and many other internal laws; and that the right of regulating commerce, also involved a right of imposing duties, and establishing custom houses for their collection; arguing, that it would be absurd to allow powers, and with-hold any means necessary or proper for their execution. The colonies replied, that it would be more absurd to limit powers, and yet concede unlimited means for their execution….’ (The last sentence goes to the heart of the thing.)
‘….[T]he doctrine of absolute sovereignty, with its indefinite catalogue of appendances, can adduce in its defence many plausible arguments, and enumerate sundry conveniences which might result, from its unlimited capacity to devote both persons and property to whatever purposes it may think proper. What conveniences may arise from the absolute subordination appertaining to it, in war!’
But this seemed to have little to do with the actual constitution: “If congress possessed an unlimited power to appropriate the publick money raised by taxes, there was no occasion to specify the objects to which it might be applied, such as to raise and support armies, to provide and maintain a navy.”
If we were to follow Marshall’s lead, “As ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people….” Great chains of reasoning would lead to such conclusions as these: “Roads are necessary in war; therefore congress may legislate locally concerning roads.” In the same way, horses being even more essential for war, “an implied power of legislation, will certainly invest congress with a legislative power over horses.” (Marshall had cited the war power as one possible source of an implied power to charter the Bank of the United States.)
In Taylor’s view, Americans had never signed on for the international jurists’ theories of absolute, unitary sovereignty, from which such deductions were made. Instead, they had instituted strictly limited governments that were their mere trustees or agents. Thirteen such peoples had by contract created a common agent for certain limited ends. Sovereignty in the European or Blackstonian sense need never come into it.
Here is how Taylor framed the problem. Asking how governments became unrestrained tyrannies, he writes:
‘To answer this question, turn your eyes towards a government accoutred in the complete panoply of fleets, armies, banks, funding systems, pensions, bounties, corporations, exclusive privileges; and in short, possessing the absolute power to distribute property, according to the pleasure, the pride, the interest, the ambition, and the avarice of its administrators; and consider whether such a government is the servant or the master of the nation. However oppressive, is it not able to defy, to deride and to punish the complaints of the people? Partisans, purchased and made powerful by their wealth, zealously sustain the abuses by which their own passions are gratified. I discern no reason in the principles of our revolution, for investing our governments which such of these instruments for oppression, as were both unnecessary for the end in view, and even inimical to its attainment; and no such reason existing, it is more difficult to discern the propriety of investing our governments with these superfluous and pernicious powers, by inference and construction.’
The overall trend was clear enough:
‘Under a reconciliation between republican and despotick principles, effected by the new idea of “sovereign servants,” our legislatures are converted into British parliaments, daily new-modeling the substance of our government, by bodies politick, exclusive privileges, pensions, bounties, and judicial acts, comprising an arbitrary power of dispensing wealth or poverty to individuals and combinations at their pleasure…. If our system of government produces these bitter fruits naturally, it is substantially European; and the world, after having contemplated with intense interest and eager solicitude the experiment of the United States, will be surprised to find, that no experiment at all has been made, and that it still remains to be discovered, whether a political system preferable to the British be within the scope of human capacity.’
Even Article I, Section 8, 18 – the “Sweeping Clause” (“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof”) was not a general grant of unknown powers, even if Marshall found in the words “necessary and proper” license for innumerable convenient means yielding, in practice, un-enumerated powers. In time, of course, all branches of the general government would share in Marshall’s captured loot.
8. Spherical Sovereignty vs. Division and Limitation of Powers
McCulloch v. Maryland (1819) made much of the supremacy, superiority, etc. of Congress in its sphere of action. Taylor noted that “‘sphere’ conveys an idea of something limited, in which sense it is correctly applied to our governments by the Federalist… but I confess myself extremely puzzled to discern, how this word… can be converted into a substantive uncircumscribed, by the help of the adjective ‘sovereign.’” He continues: “If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people….”
Taylor is not objecting to spheres, but to sovereignty in them. He quotes Dr. David Ramsay of South Carolina, the first historian of the American Revolution: “The rejection of British sovereignty therefore drew after it the necessity of fixing on some other principle of government.” For Taylor, this alternate principle rested on actual delegation by real principals to real (and mere) agents. Accordingly, no one had any “inherent” powers on any basis. Further: “There is no phrase in the constitution which even insinuates that, that the actual divisions of power should be altered or impaired by incidental or implied powers.” It was true, he conceded, that “Individual spheres or departments are easily persuaded, like Kings, that a subordination to themselves would be better for a nation, than the occasional collisions produced by a division and limitation of power.” Here was the danger: “A jurisdiction, limited by its own will, is an unlimited jurisdiction.”
Taylor preferred “occasional collisions” between concurrent jurisdictions to claims of supremacy or sovereignty. Instead of making Congress, an executive, or a court supreme in its sphere, our system was “founded in the principle of co-ordinate political departments, intended as checks upon each other, only invested with defined and limited powers, and subjected to the sovereignty, supremacy, and paramount power, superintendance and controul of the people…” The Court’s invention of “spherical sovereignty” actually overthrew the proper distribution of powers: “A supreme power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions.” In America, we “have preferred checks and collisions, to a dictatorship of one department, under the supremacy of the people….” Instead, under “the concurrent power of taxation,” Congress and the states “may each pass a law, both of which may be constitutional, and yet these laws may clash with, or impede each other…. For this clashing the constitution makes no provision.”
Taylor thought that the Court was claiming a kind of royal prerogative for Congress, including the power to “remove all obstacles to its action.” Marshall sought “to unite an extension of power with an apparent adherence to the words of the constitution.” The country not being “ripe” for the full doctrine of inherent sovereignty, “it was necessary to hook every implied, to some delegated power….” This is still the practice of a continental state which shelters a massive regulatory state under the shed roof of the commerce clause and houses a worldwide military empire under the shabby lean-to of “defense.”
On Taylor’s argument, powers, where they exist, were delegated by actual Americans, and not by a dozen or so 18th-century paragraphs drifting heavenward while “mediating” some kind of Hegelian sovereignty to the three departments. What is delegated, ought to be subject to recall. Taylor’s view thus differs greatly from currently trendy but highly artificial and structuralist notions of the separation of powers deployed, for example, by “conservative” unitary executive theorists associated with the George W. Bush administration’s lately famous “torture memos.”
9. Taylor v. Marshall and Sutherland
Partisans of central power can rely on John Marshall’s assaults on limited and enumerated powers. They can likewise rely on Justice George Sutherland’s dicta in United States v. Curtiss-Wright (1936) for the “inherency” of unnamed presidential powers. Sutherland asserted that George the Third’s sovereign prerogative powers over foreign affairs and war had lighted upon the American executive, as soon as that wonderful appliance was on hand. But Taylor saw through such arguments before they were made:
‘The rights of declaring war, and of creating corporations or granting exclusive privileges, as considered by the writers upon the laws of nations, were rights of sovereignty; but the case of war is specially provided for by the federal constitution, because the federal government, as having no sovereignty, could not other wise have declared it…. As the powers of making war and peace were necessary, it became necessary also to provide for them, not as emanations from the principle of a sovereignty in governments, but as delegated powers conferred by the social sovereignty, or natural right of self-government… No powers in relation to war are derived from the old doctrine of a sovereignty in governments under our system; and none can be justly inferred from the conclusions of the writers upon the laws of nations, deduced from that old doctrine.‘
Taylor makes the interesting observation that the Court sought to “overthrow” such homegrown American reasoning “by inferring the powers of sovereignty from a delegated power; as the power of establishing banks, from the power of taxation….” Those who reasoned from delegated powers to a general (federal) sovereignty, as understood by international lawyers, erred in several particulars:
‘When two nations are at war, a third may subject itself to a legitimate attack from either, by certain actions; yet even in this case, which calls for a prompt decision, the constitution pays no regard to the idea of a spherical sovereignty; and disregarding the language of the laws of nations, assigns the power, as in every other case where a declaration of war may be necessary, to a department, not as being sovereign, but as being a trustee of the sovereign power. This trustee alone possesses a right to involve the United States in war; and no other department, nor any individual, has a better right to do so, than a constable has to bring the same calamity upon England. As the laws of nations cannot deprive congress of any power with which it is invested by the constitution, so they cannot invest congress or any other department, with any power not bestowed by the constitution. If the laws of nations could bestow any powers under our system, there would be great difficulty in ascertaining the department which should receive them. They [those laws] contemplate the powers of declaring war and making peace, as residing in an executive department; but the constitution divides them, and does not intrust the president with either.’
The central question for Taylor was “whether these laws of nations or our constitutions have delegated powers to our political departments.” If the former, the game was up and power would not and could not be limited; if the latter, “sovereignty and the laws of nations united cannot create corporations, nor confer any power whatsoever….”
10. The Pretended Security Supplied By Election
For Taylor, security against abuses of power does not arise from mere representation, or from election of the personnel of political departments; for if those can destroy the checks put upon them, then “mankind after a long travail have returned to the very doctrine they have been trying to abolish, namely, that they must inevitably elect between a despotism in one, a few, or in many, because representation may be trusted with unlimited power.” No one – a hereditary prince, an aristocracy, or elected officers – was to be trusted with such power. Taylor could not be caught in the swindle by which the friends of power bring forward the empty marker of “popular sovereignty,” whenever real questions of self-government, states rights, or liberty intrude upon the normal operations of the state.
These issues were central for Taylor because of the probable failure of American republicanism if it adopted European (royalist) sovereignty as its legal basis. Listing some objections to such a legal foundation, he writes: “2. That a sovereign power over labour or property is less oppressive in the hands of an absolute monarch, than in those of a representative legislature. 3. That the error of trusting republican governments with this tyrannical power, has probably caused their premature deaths, because they are most likely to push it to excess.”
Thus when Taylor pointed out the danger of “monarchism” which he accused his opponents of favoring – he was not concerned solely with the executive or its corrupting influence, nor was he engaged in name calling; instead, he was addressing the whole theoretical basis of their system. Sovereignty – taken as anything more than another word for self-government – would doom any republicanism worthy of the name.
11. ‘New Views’ of the Constitution
New Views of the Constitution of the United States (1823) was Taylor’s final statement on these matters. It was – for Taylor – unaccountably clear in style and presentation. In preparing it, he was able to use the recently published “journal” of the Constitutional Convention – that is, the minutes kept, as opposed to James Madison’s famous and lengthy private journal, only published in 1840 – as well as the notes taken by Robert Yates of New York.
Over the years, Taylor had avoided any notion of absolute sovereignty. To the extent that he used the word, he equated it with the fact of self-government. Naturally, this raises the question, who are the self-governing people? On this, Taylor became clearer as he went, coming to rest conceptually at the separate peoples of the several states. Any other conclusion conflicted with the outstanding historical facts. In New Views, he seeks to prove textually that the union was a “union of states, and not a union of individual men.” There had been no single American people – no “fabulous consolidated American nation” and therefore nothing sustained the old consolidationist dodge of pretending the word “states” referred to state governments and not to state peoples.
There is much of interest in New Views, but only a few key points will be noted here. Taylor finds ample ideological continuity between the Philadelphia conclave and later political tendencies. Taylor sees three forces at work in the convention: 1) monarchists led by Hamilton, 2) pragmatic, big-state centralizers led by Madison, and 3) federal republicans, including Luther Martin and Robert Yates. (The role of continental creditors in the centralizing parties is duly noticed.) The Federalist Papers “resumed” nationalist ideas expressed at Philadelphia and, therefore, amounted to a misleading, Swiftian “codicil” to the actual constitution. Self-named Federalists had sown much confusion. Between outright monarchism and federal republicanism (Taylor’s creed) stood “Mr. Madison’s didactick federalism” – a “hopeless idea of reconciling contradictions.” This ideology now held the high ground of American thought and perpetuated Madison’s “disagreements with himself.” Here was the famous dual federalism discovered by a “mystical mode of construction.” Here, too, were three alleged sources for a (final) national sovereignty “deposited” in two places – Congress (Hamilton) or the Supreme Court (Madison).
Taylor gives a very astute analysis of Federalist ideology in relation both to Hamilton’s English view of sovereignty and Madison’s self-inflicted contradictions. He laid out what Federalists had to assume in order to achieve their constructive results and tested those assumptions against historical fact and everyday logic to produce an alternate reading of the constitution. As for the future, that was problematic. America’s “money-hunting parties” were not fit guardians of state rights and would soon “be reduced to two, the geographical ins and outs of a concentrated supremacy.” Full national sovereignty, once achieved, would merely produce Eastern, Southern, and Western geographical political blocs keen to control the federal apparatus out of mainly economic motives.