States’ rights may have been the defining force in Antebellum America, but modern, mainstream historians would have you believe that they were nothing more than a wicked creed cooked up by a few corrupt slaveowners. A review of a recent biography of John Taylor of Caroline referred to his “opprobrium” as the “premier states’ rights philosopher.” It would have been news to Taylor, who wrote brilliant books on everything from basic principles to specific issues, that States’ rights were all part of a conspiracy to protect slavery. According to one historian who delights in deconstructing Southern “honor,” States’ rights were merely the “rationale” with which the South “presented” her defense of slavery, the “paramount” interest of her “ideology.” According to this past president of the Southern Historical Association, Southern culture itself was just another rationale for slavery.
This essay series aims to right the wrongs which the commissars of acceptable opinion in academia and the media have inflicted upon the role of States’ rights in Southern history. Studying the great political treatises of the South will establish that States’ rights were never a cheap front for slavery, but a legitimate political philosophy stemming from a deep passion for self-government and sincere beliefs about the true meaning of the Constitution. John Taylor of Caroline’s Construction Construed and Constitutions Vindicated, published in 1820, is the subject of this essay.
Taylor was born in 1753 in Caroline County, Virginia, but was orphaned and adopted by his uncle, Edmund Pendleton. Taylor studied law at the College of William & Mary, and practiced law at his uncle’s office. In the American Revolution, Taylor fought as a major in the Continental Army. Although he had sold his birthright to equip himself for the war, after strenuous campaigning in the North, Taylor resigned in protest of corruption in the army and Congress. Back home, Taylor served as a lieutenant colonel in the Virginia militia up until Lord Cornwallis’ surrender at Yorktown. After the war, Taylor won fame and fortune in his own independent law practice. Once he married, however, Taylor retired to his plantation, Hazlewood – having plowed the land grants from his war service and profits from his legal practice into the soil of Virginia and Kentucky – and devoted the rest of his life to farming. Taylor served in the Virginia legislature (where he shepherded James Madison’s Virginia Resolutions to adoption) and the U.S. Senate, though he did so out of a sense of duty, greatly preferring his agrarian idyll to the snake pit of politics. Taylor was so respected of an authority that he was often elected without campaigning and against his wishes. A self-proclaimed “minority man” and leading figure of the arch-conservative “Tertium Quids” Taylor was content to restrain the exercise of power rather than exercise power himself, leaving a legacy of ideas rather than legislation. Thomas Jefferson, who had fought beside Taylor on a number of political battles, considered him a kindred spirit. “Col. Taylor and myself have rarely, if ever, differed in any political principles of importance,” complimented Jefferson. Upon Taylor’s death in 1823, U.S. Senator Thomas H. Benton from Missouri eulogized him as “the ideal of a republican statesman.” M.E. Bradford, the great scholar of all things Southern, titled Taylor “a Virginia Cato.”
Taylor wrote Construction Construed and Constitutions Vindicated in opposition to the troubling trends of his time – “political combinations” of “parasitical privileges” corrupting the construction of the Constitution with “the instrumentality of inference, convenience, and necessity.” These honeyed words, to Taylor, were poisoned. Specifically, Taylor was worried about the growing power of the Supreme Court over the Constitution, a national bank and protectionist tariff enriching a few at the expense of the many, and the division of the Union into opposing sections. These problems had ended the short-lived, so-called “Era of Good Feelings,” and initiated an open struggle for power between the North and South. Although he hoped it would be published anonymously, Taylor was forced to reveal his identity as the author. Jefferson described the book as “the most logical retraction of our governments to the original and true principles of the Constitution creating them, which has appeared since the adoption of the instrument.”
Taylor believed that the “principles of our revolution” were the cornerstone of American constitutionalism. “These are the keys of construction,” avowed Taylor, “and the locks of liberty.” Any accurate interpretation of the Constitution must be rooted in an understanding of what the Americans were fighting for in the first place. According to Taylor, “freedom of property” was one of the chief motives of the Americans. “It was tyrannical in the English government, said the colonies, to insist upon taking away their property, and giving it to placemen and pensioners; and they very justly considered life and liberty so intimately connected with property, that the rights of the latter could not be invaded, without invading the other rights also,” explained Taylor. “They fought for a revolution, and established governments to secure all three of these natural rights, because a loss of one was equivalent to a loss of all, in a national view.” Life, liberty, and property were the principles of the American Revolution.
Taylor worried that if “pecuniary combinations” of government-dependent industries were found constitutional, then they would clamp down on the people as a permanent parasitic class. “Legislatures will become colleges for teaching the science of getting money by monopolies or favours,” predicted Taylor, without ever having seen C-SPAN, “and the deluge of laws will become as great in the United States, as was once the deluge of papal indulgences in Europe for effecting the same object.” Anyone with the intestinal fortitude and intellectual acuity to follow politics today knows all too well that Taylor was more right than he knew. To prevent this violation of life, liberty, and property and regression from the principles of the American Revolution, the rights of the States were instituted to limit the powers of the federal government. “A greater mass of these evils was foreseen by the framers of the Union, and attempted to be avoided, by restricting the powers given to Congress, and by retaining to the states those powers united with the local interests, habits, and opinions of each state.”
Taylor denied that freedom was found in any particular form of government, believing that tyranny was intrinsic to government in any form. “To contend for forms, only, is to fight for shadows.” He considered the extent to which governments upheld their duty to protect the people’s natural rights, rather than the form by which they were organized, to be the true measure of their value. What was the difference, Taylor challenged, between one tyrant three thousand miles away or three thousand tyrants one mile away? Governments, after all, were not ends in themselves, but means instituted to achieve certain ends, and should be judged on the merits. “If the acts of a monarchy, aristocracy, and democracy are the same, these forms of government are to a nation essentially the same also.” The American Revolution, according to Taylor, was fought over the rightful functions of government, not for one form over another. “The United States did not go to war for nothing but forms.” To Taylor, the best way to secure life, liberty, and property was not to trust any particular form of government, but to identify and restrain the causes of tyranny in government in general. “If we ascertain the quality in human nature, from which political evil has chiefly proceeded under every form of government, this quality is the cause which can corrupt every form,” explained Taylor, “and instead of amusing ourselves with these new forms, not to be confided in, it behooves us to search for a remedy, able to remove or control the cause itself.” That quality, according to Taylor, was “avarice” and “ambition.”
There were two types of constructions of the Constitution – one of “common sense” which appealed to “understanding,” another of tortuous reasoning which appealed to “prejudice or self-interest.” Taylor insisted that latter, which he called a “pernicious species of construction,” was refuted by the Constitution’s “specifications and restrictions” on power. To the people, the construction of the Constitution should be “a science to preserve the rights of mankind,” but to governments, constructions were “an art for extending their own power.” What distinguished the United States, however, was that the people were free to construe written constitutions for their governments, rather than governments construing constitutions for themselves. “In all except our own, the people have nothing to do with it,” said Taylor, “but ours is modeled with an intention that they should have much to do with it.”
Taylor was wary of using the term “sovereignty” to describe the status of the people of the States in the Union. He recognized that its intentions were good – it was meant to signify “the right of self-government” – but preferred the Declaration of Independence’s “free and independent,” along with the “limitations, restrictions, balances, and divisions of power” in the Constitution, as safer and sounder. The nebulous “sovereign” was far too subjective and open to interpretation and distortion, worried Taylor. Indeed, Taylor feared that this powerful term –it was originally a religious term for the absolute authority of God over creation – could be misconstrued to apply to the government instead of the people, thus reversing the American people’s liberation from the tyranny of “sovereign” rulers. “Chastened down to the signification of a natural right in nations to institute and limit their own governments, it only embraces the principle by which every social liberty can be established,” Taylor said of sovereignty. “Extended to the idea of power in governments to regulate conscience or distribute property,” he continued, “it includes the principle by which social liberty is destroyed.” Despite his reservations, Taylor acknowledged that “sovereignty” had become synonymous with “self-government,” and conceded to employ the term “in accordance with the common language.”
Although everyone knew that the Union was formed by “we, the people of the United States,” there was a serious philosophical debate over whether “we, the people of the United States” meant “the associated inhabitants of each state, or the unassociated inhabitants of all the states.” In other words, was the United States a nation over one people, or a republic between the people of the States? “No people or community has ever been composed in the United States except by the inhabitants of each state, associating distinctly from every other state, by their own separate consent,” answered Taylor. To modern Americans, broken to “one nation, indivisible,” cultural homogeneity “from sea to shining sea,” and a leviathan government which laughs off limits on its power, a debate of “nations” versus “republics,” may seem like meaningless quibbling over semantics, hopelessly antiquated, or even “un-American.” To Founding Fathers like Taylor, however, it was a question of vital importance. “By this new doctrine,” Taylor warned, “the checks provided to control the powers of government of the union are ingeniously evaded.” The “melting down” of the “body politicks” of the States into “one great nation” would result in the centralization of power and the loss of life, liberty, and property. In a republic between sovereign, self-governing “body politicks,” however, power would be decentralized, and life, liberty, and property protected. “Now as an effective sovereignty of the people can only result from their having constituted themselves into a civil society, and [the people of the nation, as opposed to the people of the states] having never done so, an acknowledgment of a sovereignty which does not exist, only annuals that which does; and escapes altogether from any species of loyalty to this superior authority.” That is, pretending that the people of the nation (an “imaginary body politick”) were sovereign while denying the sovereignty of the people of the States (effective “body politicks”) would free the federal government from any “controul or modification.”
Proving that the Constitution was ratified by the States, not the people, and that the Union was a republic of sovereign States, not a nation, was fairly simple. According to Taylor, nationalist revisionism was merely “an attempt to construe away a fact, known to everybody.” The constitution of each State referred to herself as a separate entity with the inalienable right of self-government. For example, Taylor’s own Virginia called herself a “free state,” proclaiming that “all power is derived from the people.” Massachusetts, who had already twice contemplated seceding from the Union, concurred with Virginia. “The people of this commonwealth have the sole right of governing themselves as a free, sovereign, and independent state.” It was the States which sent delegates to represent them at Philadelphia Convention, and States which later ratified the Constitution in popular conventions. It was the States which elected representatives, senators, and presidents, each with their own individual suffrage laws. Last, but not least, it was the States which possessed the power to amend the Constitution and dissolve the Union. “Thus, concluded Taylor, “a supremacy of the states, not only over congress, but over the whole constitution, is twice acknowledged; first, by their power over the legislative and executive departments instituted for executing the union; and secondly, by their power over the union itself.” Even the name “United States,” or “people of the United States,” indicated that the Union was a republic of separate States, not one nation. “The plural ‘states’ rejects the idea, that the people of all the states considered themselves as one state,” claimed Taylor. “The word ‘united’ is an averment of pre-existing social compacts, called states.” Taylor also noted that the term “union” was never applied to governments established among individuals by social contract. “I do not recollect that a single compact between individuals, for the establishment of a government, has ever been called a union.” Unions, according to Taylor, were “agreements between independent states.” As if all of this were not obvious enough, the Ninth and Tenth Amendments, taken together, firmly established that the States created the Union and remained sovereign within it. “The precision of these expressions,” noted Taylor, “is happily contrived to defeat a construction, by which the origin of the union, or the sovereignty of the states, could be rendered at all doubtful.”
According to Taylor, the “division and limitation of power” was “vitally important to our system of government.” In the past, people were subordinate to the government. The people were “pedestals,” the government “statues.” Various forms of government struggled for power, but all were “founded in the principle of subordination to unlimited power,” and therefore all were a “scourge to mankind.” Eventually, sovereign governments became too oppressive and the idea that governments be made subordinate to the people – that the people be sovereign – took root. In the minds of men, John Locke eclipsed Thomas Hobbes. It was the secession of the American colonies, however, which catapulted these liberal theories into practice. “The natural right of self-government, and the consequent rights of dividing and limiting power, might have slept forever in theory, except for the American revolution.” Unlike previous revolutions, which had merely established one form of government over another, the American Revolution overturned the old order and established a new principle of government altogether – the subordination of the government and the sovereignty of the people. Another novelty of the American Revolution was the division of power. According to Taylor, there were two divisions of power in the United States: between the people and their governments, and the States and the Union. “The first division of power…consists of the limited rights delegated by the people to their governments or trustees; and all of the residue of the attributes of sovereignty, retained, as not having been delegated by the people,” explained Taylor. “Our second division of power…is that between the governments of the states and the governments of the union.”
The American Colonies had always argued that while Parliament had authority over the foreign affairs of the British Empire, they retained authority over their own internal affairs. The division of power between the States and the federal government was the adaptation of their colonial relationship with Parliament to their newfound republic. “During, and soon after a war, firmly waged for eight years, to resist a right to legislate for them locally and internally, inferred from parliamentary sovereignty or supremacy, the colonies or states, constructed two unions, and established in both a division of power, bearing a strong similitude to that upon which they were willing to have continued their union with England.” Just as the Colonies had claimed their sovereignty in internal affairs against Parliament, so the States retained their sovereignty in internal affairs against the federal government. Taylor argued that the Colonies’ reasons for dividing power between themselves and Parliament likewise justified a strict division of power between the States and the federal government. After all, a domestic tyranny could be just as oppressive as a foreign one. “Many of the arguments which convinced the colonies of the necessity for such a division in relation to England, apply forcibly to the government of the union,” noted Taylor. “A supremacy of London or Washington, however more direful to liberty at one place, would not be divested of terrors at the other.”
Although there were some similarities between the Colonies’ old relationship with Parliament and the States’ new relationship with the federal government, there were also important differences. While the Crown had chartered the Colonies, the federal government did not charter the States. In fact, it was the States which created the federal government. In that sense, then, the States had an even stronger claim to self-government against their creature, the federal government, than the Colonies against their creator, the king. “Had the colonies, under their charters from the king of England, claimed a supremacy over the parliament,” quipped Taylor, “their pretension would have been equivalent to a claim of supremacy by the government of the union over the states.” Unfortunately, what Taylor viewed as ludicrous – the federal government’s pretension to supremacy over the States – is now the bitter truth.
For the federal government to claim that it possessed “implied” powers over the States was not only akin to Parliament’s tyrannous claims of supremacy over the Colonies, but also akin to the purchaser of a house claiming all of the seller’s personal property as an “implied” part of the contract. “The grant of a charter implies the retention of every power not granted, just as a deed of gift or sale for a portion of an estate leaves unimpaired the title of the owner to the portion he does not convey away,” said Taylor. “A conveyance of part does not entitle the grantee to take more, or the whole of the residue if he pleases.” In other words, the States – “the true owners of a great fee simple estate” who “created the division of power between the government of the union, and the state governments” – kept for themselves whatever rights they did not delegate to the federal government in the Constitution. “If one trustee,” warned Taylor, speaking of the federal government entrusted with limited powers by the States, “can by construction or by force, despoil the other of his portion, he will become so rich as to be able to betray his trust, and deprive the owner of the part of his own estate retained.” In order to prevent the federal government from usurping these reserved rights, it was imperative for the States to resist both covert and overt forms of federal encroachment.
“The great extent of the United States will not admit both of a central supremacy, and of a free form of government,” concluded Taylor in 1820. “The preservation of liberty must depend on the division of power between the state and federal government.” By 1865, Taylor’s free form of government would be in ruins, the states which made a final stand against central supremacy burned and bled into submission.
Taylor considered property “the chief hinge on which social happiness depends.” Taylor did not mean the Yankee love of money – he considered “avarice” and “ambition” to be terrible vices – but of property’s connection with the vital rights of life and liberty. “The rights to life, liberty, and property, are so intimately blended together, that neither can be lost in a state of society without all.” Since these rights were all united, the acceptance of one entailed the acceptance of all. Likewise, a violation of one was ultimately a violation of them all. Any government which recognized the rights of life and liberty, but did not respect the right of property, was hypocritical. The danger, of course, was that such governments would eventually become consistent, and claim sovereignty over life, liberty, and property. “This error,” according to Taylor “is the rock upon which most republican governments have split.” When the government had the power to prey upon property, parasitic classes proliferated around it, lobbying for privileges and patronage, leeching off the property of the people – along with their lives and liberties – in the process. Elections, to Taylor, were used to deceive people into believing that they were free when they were actually enslaved. ObamaCare, an audacious invasion of individual property rights, exorbitant jackpot for insurance companies, and first step on the road to socialized medicine, masquerading as healthcare reform, proves that nothing has changed since Taylor’s time – or that things have actually gotten worse.
Taylor did not want the revolutionary rallying cry of “no taxation without representation” to be misunderstood. “In contending that our property could not be taken from us without our consent by our representatives, it was admitted, whilst we spoke in reference to the English system of government, that it might be both taken and expended by our representatives, without restriction.” After declaring independence from the British Empire, however, the Americans clarified their intentions, crowning the people as sovereign and reducing the government as subordinate. “When we separated from that government, this admission, suggested by the wish for a compromise, was renounced by the adoption of forms of government founded in the principles, that sovereignty resided in the people, and that these governments were their trustees.” A government which did not protect property would not protect life or liberty, either, and therefore had betrayed the people’s trust. “Thus,” reasoned Taylor, “the pretext of publick good is made into a mask with which to hide publick oppression.”
Having delineated the basic principles of American constitutionalism, Taylor then proceeded to apply them to current events. First and foremost in Taylor’s sights was the ruling of McCulloch v. Maryland. This famous – or infamous – case began when the Baltimore branch of the Second Bank of the United States refused to pay State taxes on its notes. Maryland took the bank to court, arguing that because she and her sister States had neither surrendered their right of taxation nor delegated any banking powers to the federal government, her tax was constitutional and the bank was unconstitutional. Although the State court upheld Maryland, the Supreme Court struck her down, setting Constitution-shattering precedents which haunt the United States to this day. Specifically, Marshall asserted that under the “necessary and proper clause,” the federal government was vested with “implied powers” beyond its enumerated powers: unlimited “means” for limited “ends.” Incorporating a national bank, argued Marshall, though not a delegated power, was a legitimate means in the execution of the ends of taxation and expenditure. Furthermore, since the “supremacy clause” made federal law superior to State law, Maryland had no right to hamper the operations of the Second Bank of the United States.
Taylor’s objections to this ruling were so extensive that he devoted five whole chapters (about one-third of the book) to its systematic demolition. Taylor viewed the ruling as extraordinarily duplicitous, accusing Chief Justice John Marshall – an acolyte of the progenitor of the American leviathan, Alexander Hamilton – of talking out of both sides of his mouth, paying homage to sound principles while advancing fraudulent ones. Taylor considered this trick to be the intellectual equivalent of counterfeiting of a currency – debasing gold coins with brass. The entirety of Taylor’s stance will be addressed in full, but the essence of it is below:
“The essential conclusion of this opinion is, that an absolute sovereignty as to means does exist, where there is no sovereignty at all as to ends. This doctrine seems to me, to be evidently inconsistent with the principle of dividing, limiting, balancing, and restraining political powers, to which all our constitutions have unequivocally resorted, as the only resource for the preservation of a free form of government. If the means to which the government of the union may resort for executing the powers confided to it, are unlimited, it may easily select such as will impair or destroy the powers confided to the state governments.”
Taylor knew that allowing the federal government to decide for itself what means were necessary and proper to execute its enumerated ends would open up a Pandora’s box of power. Like a lady admiring a set of jewels, he said, the federal government would very easily find its heart’s desire to be necessary and proper. “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.” To Marshall’s reasoning that implied powers must exist because there was no clause in the Constitution which excluded them, Taylor was scornful. There was also no clause, he countered, which established such thing as implied powers, either. There was certainly no clause allowing for alleged implied powers to override the actual division of power between the Union and the States. Since the Constitution was a compact of enumerated, or “marked” powers, prohibitions of power were redundant. In essence, the Tenth Amendment was a prohibition of implied powers.
Taylor was suspicious of Marshall’s “sophistical” discussion of the “sovereignty” of the federal and state governments in their “spheres of action.” Only the people of the States were the sovereign “body politick,” Taylor reiterated. If governments, not the people, were sovereign, then power would be unlimited and the Constitution a dead letter. To illustrate this point, Taylor told a story of a lady who wanted a new house, but could only convince her husband to repair the old one. The crafty lady gradually altered the house, carefully measured so as not to alert her husband to her true design. When the work was done, he found that she had, bit by bit, changed their old house into something new. Taylor suspected that rulings such as McCulloch would have the same insidious effect on the Constitution. “Thus the indefinite attributes of a sovereignty of spheres, will gradually usurp and supplant the attributes of the sovereignty of the people,” he warned. “The old principle of limited ends will be thrown out of the window by the new principle of unlimited means.”
“It is a question of supremacy.” This pompous phrase of Marshall’s stuck in Taylor’s craw. Taylor surmised that since Marshall – and the Federalist Party – was unable to refute the clearly established sovereignty of the people of the States, he had resorted to a ludicrous construction of the supremacy clause. According to Marshall, the supremacy clause made federal law “supreme” to State law. The supremacy clause, however, stated that “the Constitution,” along with all laws and treaties “made in pursuance thereof” were “the supreme law of the land.” Only constitutional laws were supreme. “Both the laws and treaties to be supreme must, therefore, be made in conformity with the powers bestowed, limited, and reserved by the constitution; and by these we must determine whether a law or treaty has been constitutionally made, before the question of its supremacy can occur.” The Constitution encompassed the entire system of government in America – “both state and federal, by delegating and reserving powers” – so describing it as the supreme law of the land was correct. It was, however, the Constitution which was supreme, not federal law. To this day, if the ruling elite in Washington, D.C., encounters any State-level resistance to their schemes, they will mindlessly intone that “federal law trumps State law.”
Taylor denied that the Supreme Court (“supreme” insofar as its supremacy to other “inferior” federal courts) even had jurisdiction over State law, the Constitution containing no such delegation of power. “The constitutionality of state laws cannot be legitimately decided by the federal courts, because they are not a constituent part of the state governments, nor have the people of the state confided to them any such authority.” Just as federal legislation had no supremacy over State legislatures, so the federal judiciary had no authority over the State judiciary. Taylor warned that the federal government – particularly the unelected and unaccountable judiciary – would expand this usurped power to “modify” State laws which conflicted with its own. The division of power between the states and federal government would be “idle” and “insignificant” if the federal government could directly interfere in their internal affairs. If the federal government could strike down a State tax – taxation being a reserved right of the States – then all of the rights of the States were vulnerable. “The supremacy of congress and of the court, in alliance also, has declared war against the sovereignty of the states; but how it will terminate, is hidden in the womb of time.” How it ended – in fire and blood – would have devastated Taylor.
Nullification was Taylor’s antidote to Marshall’s fabricated doctrine of federal supremacy. Today, nullification is taboo, branded as a crackpot idea for druggies and racists, but in Taylor’s time, nullification was much more commonplace. In 1798, Virginia and Kentucky nullified the Alien and Sedition Acts. In 1809, Massachusetts and Connecticut nullified a federal trade embargo. Up until the violent denial of States’ rights embodied in the Northern conquest of the South, nullification cropped up in all sections of the republic for a variety of reasons, each State looking out for its own liberties and local interests. Now, all of the “Land of the Free and the Home of the Brave” stoops before Washington, D.C.
Before the formation of the Union, the States were sovereign, or “supreme.” United, the States never surrendered their sovereignty to the federal government, but delegated limited powers enumerated in the Constitution, while reserving the rest of their rights to themselves. In the powers which the states delegated to the federal government, the federal government was supreme. Likewise, in all the powers reserved to the States, the States remained supreme. The delegation of some powers to the federal government did not amount to a delegation of the whole. “By recognizing the supremacy transferred, it was not intended to destroy the portion of supremacy not transferred.” The States alone had authority over the rights which they reserved to themselves, just as the federal government had authority over the rights which the States had delegated to it. “Hence it results, that the right of construing the constitution within their respective spheres, is mutual between the state and general governments,” argued Taylor, “because the latter have no supremacy over the state powers retained, and the former no supremacy over the federal powers delegated.” Therefore, if the federal government ever usurped any of the rights of the States, then the States, as supreme in their own spheres, were entitled and obligated to resist such intrusion. “Unconstitutional judgments, like unconstitutional laws, are null and void, and both courts are mutually bound by their oaths to the constitution, and have a mutual right to resist and defeat, by every means in their power, unconstitutional laws falling within their respective jurisdictions.”
If the federal government did not have “unlimited, unchecked supremacy in construing the constitution,” Taylor acknowledged, then “clashing constructions will ensue.” To Marshall, this would have been unthinkable mayhem. If legal, declared Marshall, the actions of Maryland were capable of “prostrating” the federal government “at the foot of the states.” Taylor retorted that the federal government was dependent upon the States for its existence – and thus, in a sense, already prostrated before them – and countered that prostrating a government growing beyond its legal limits was a good thing. Furthermore, the paramount political ideal in America was not the uniformity of “union,” but the liberty of self-government. The choice, said Taylor, was between abandoning the division of power for the sake of uniform construction or preserving the division of power in spite of clashing constructions. While the problems of clashing constructions were conjectural and trivial, the terror of a supreme government able to construe the extent of its own power was factual and terrible. “It is very true, that the federal and state courts may occasionally carry on little wars with the weapons called injunction and habeas corpus,” noted Taylor, “but then these weapons cannot shed blood, confiscate property, nor burn hereticks, as supremacy has frequently done.”
When the Constitution was ratified by the States, it was understood that power would be separated between the States and the federal government, and that the former would be the chief restraint on the latter. “How can this feature of our political system, so highly eulogised in the Federalist, be preserved,” asked Taylor, “if the means for giving it efficiency should be taken away from these same state legislatures, by investing the federal judges with a supreme power over these means?”
Marshall asserted that even though the States – or, in his view, the people – never delegated banking powers to the federal government, the “general-welfare clause” and “necessary-and-proper clause” gave it the right to incorporate one anyway. One of the chief bones of contention of “Anti-Federalists” like Taylor who opposed replacing the Articles of Confederation with the Constitution, were these clauses, the ambiguity of which they expected would be manipulated to justify the usurpation of powers supposedly reserved to the States. The Federalists, of course, assured them that this would never happen (to Taylor, however, McCulloch was “proof” of the Federalists’ “real intention”).
Today, if the overlords of Washington, D.C. are ever pressed to defend the constitutionality of one of the many laws written by their corporatist cronies and from which they have exempted themselves, they mindlessly squawk, “General welfare! General welfare!” In the minds of these politicians, on one wild and crazy night, the Founding Fathers – perhaps after overindulging in Samuel Adams’ homebrew –gave up on limiting the powers of the federal government to those enumerated in the Constitution and decided to let Congress do whatever it wanted. “Had they done so, no specification of federal power would have been necessary,” observed Taylor, “and if they do so, the subsequent specifications mean nothing.” This belief in the general-welfare clause as some sort of genie which exists to grant Congress’ wishes stems from Marshall’s construction in McCulloch. In 1820, Taylor was trying to nip this constitutional cancer in the bud.
Taylor despised the “artifice” of construing the general-welfare clause beyond enumerated federal powers. Such a construction – akin to rearranging the syllables or letters of a word – rendered the Constitution so loose as to be “unintelligible,” reducing it to “a reservoir of every meaning for which its expounder may have occasion.” In other words, it would mean whatever the government wanted it to mean. According to Taylor, the meaning of the general-welfare clause was limited to the enumerated powers of the federal government. The federal government was to use its enumerated powers to provide for the “common defence” and promote the “general welfare,” but the general-welfare clause itself was not a delegation of any power. It was, Taylor explained, “introductory,” not “decretal” – “the ends in view are recited, and then follow the means for effecting those ends.” Furthermore, “general welfare,” meant “objects common to all the states, as to which a consentaneous interest and feeling would prevail,” not local agendas and pet projects.
Taylor noted that the necessary-and-proper clause applied only to “foregoing powers.” The federal government was permitted to make laws which were necessary and proper for the execution of their delegated powers. Like the general-welfare clause, the necessary-and-proper clause was not a grant of power in itself. For example, since the federal government had the constitutional power to levy certain kinds of taxes, it would therefore be necessary and proper to employ customs officers. It would not, however, be necessary and proper to incorporate a national bank, with a plethora of new powers, simply for the safekeeping of tax revenue. Because there would be no limit to the powers which the federal government might claim were “necessary and proper” in relation to war, commerce, and taxation, the only construction of this clause consistent with the original intent to limit the federal government was a strict one pertaining to “foregoing powers.” Taylor joked about the federal government stretching its war powers to assert authority to regulate horses and taverns. Little did he know that one day, there would be such a thing as “equine law” or a drinking age.
“If the convenience of collisions between co-ordinate political departments begets a necessity for the supremacy of one; and this necessity will justify its assumption, the scheme of checks and balances is entirely chimerical, and a political fabric built upon that theory must fail,” said Taylor. “Necessity, inference, and expediency never fail to beget an endless successive progeny.”
Taylor heavily disputed the idea that establishing a national bank was “necessary and proper” for the execution of any legitimate federal power, even under Marshall’s expansive construction. Marshall claimed that a national bank was “convenient, useful, and essential to fiscal operations.” Taylor countered that the question was not whether a bank was beneficial for the “fiscal operations” of the government – for control over the currency and higher tax revenues were certainly good for the government – but whether a national bank was convenient for the people.
A national bank depreciated the currency, “aggravating” prices and spending. At the same time, a depreciated currency was worth less in international markets, making imports more expensive. By loaning money to the government, a national bank saddled the people with debt and taxes beyond their consent and perhaps even their resources. “The depreciation of money caused by banking…has considerably aggravated taxation.” Fractional-reserve banking – the pyramiding of loans off reserves – was “fraudulent” and a “falsehood.” As soon as the people realized that a bank’s loans exceeded its reserves, and that it could not meet its obligations to its depositors, “a heavy shock of factitious misfortunes” would crash the economy. Indeed, writing in the aftermath of the Panic of 1819, Taylor was painfully aware of the damage bank runs could do. Lastly, the example of exempting wealthy and powerful bankers from punishment for their crimes would demoralize the people and corrupt the virtue necessary to maintain republican government. “Can these be preserved,” asked Taylor of republican virtues, “by investing corporate bodies with the privileges of committing remediless frauds, of laughing at detection, and of retaining the pillage?” Taylor went so far as to compare a national bank to the Devil, ruining his victims with the very temptations by which he ensnared them. “Fiscal operations are the means by which civilized nations are oppressed and enslaved,” concluded Taylor. “If a government may do whatever it pleases to think ‘convenient, useful, or essential in the prosecution of fiscal operations,’ however inconvenient, useless, and injurious to a nation, and however detrimental to the morals, interest, and happiness of individuals, it is difficult to conceive of any limitations by which it can be restrained.”
Taylor scoffed at Marshall’s reliance on “precedents,” as if two wrongs made a right. The Supreme Court was not sovereign, so it did not have the right to issue precedents dictating how the Constitution was to be construed. Only the people of the States were sovereign, and only they had the authority to make such a determination. If the federal government could expand its power by its own precedents, then there would no longer be any real limits on its power. “What should we say to a husband, who should surrender the custody of his wife to a set of professed rakes?” asked Taylor. “That which ought to be said of a nation, which entrusts its constitution to the care of precedents.”
“A phalanx of words have been enlisted to assail the plainest portions of the federal constitution,” Taylor concluded of McCulloch. To Taylor, McCulloch was nothing more than “artificial phraseology,” which he defined as “the vocation of stripping evils of unseemly attire in order to dress them more handsomely, or of subjecting the federal constitution to the needles of verbal embroiderers, in obedience to the saying, ‘the tailor makes the man.’” Taylor, however, was confident that the simple truth would cut through the “fine webs” spun by Marshall.
In 1820, the vast majority of federal tax revenue came from taxes on imported manufactures, also known as tariffs (today’s income tax would have been considered an outrageous invasion of individual liberty). Although the Constitution required that taxes only be levied for the collection of revenue and be uniform among the States, rates were creeping upward – as taxes always do – but while the South was paying the price, the North was profiting handsomely. The South was an agricultural economy with little industry, exporting her cash crops and importing her manufactures. In fact, Southern cash crops – cotton, tobacco, rice, and sugar – constituted the vast majority of American exports. The North, however, was a budding manufacturing economy with old fishing and shipping industries, though no significant imports or exports of her own. As a result of these divergent economies, the federal tariff hit the trade-reliant South the hardest, burdening her with higher taxes and prices. All told, the South was paying the bills of Washington, D.C., as well as subsidizing Northern industries. In 1816, the South largely consented to such “protectionist” tariffs to help the North repair the damage done to her economy during the War of 1812. By 1820, however, it became clear to the South that the North was not after temporary aid, but permanent privilege. To Taylor, this alleged “American System” was equivalent to “a right to distribute wealth and poverty, gain and loss, between occupations and individuals.”
Taylor espoused the classical-liberal view that the purpose of government was to protect mankind’s natural rights. “Man, by nature, had two rights; to his conscience, and to his labour; and it was the design of civil society to secure these rights.” Free men, of course, had an equal right to their conscience and labour. “Equal laws, and equal rights in its citizens,” were what distinguished a liberty from tyranny. While some sacrifice of the “freedom of labour” in the form of taxation was considered necessary for public use, taxation for private use – taking from some and giving to others – was abhorrent in a free society, no different from theft in practice and principle. “The natural rights of labour, in subjecting themselves to contributions for the support of civil government, never meant to acknowledge themselves to be the slaves of a despotick power.” In Europe, governments divided and ruled by pitting “religious sects” against each other; in America, it was “occupations.”
Taylor found the argument for protectionist tariffs absurd, comparing it to the scene from Don Quixote in which Sancho is deceived that he will be happier and healthier if he declines food and drink. Taylor, echoing the British economist David Ricardo, explained that each economy has its own comparative advantage in producing certain goods, and that trading those goods was mutually beneficial for both economies. Tariffs, said Taylor, amounted to “bartering comforts for deprivations,” while trade was “bartering comforts for comforts.” Indeed, enriching some at the expense of others, by striking at a man’s right to labour, ultimately struck at his very life. “It is an evasion of the right to live, to take away the products of labour by which man lives, and to give them to other men,” argued Taylor. “If a government can take some, it may take all; and bad governments, by this species of tyranny, do often starve men to death.”
Ambitious and avaricious minority interests – “combinations” – according to Taylor, had always been devising schemes for the government to oppress the majority for their own profit. “An encouragement of manufacturers” was simply the latest “nominal modification” of this age-old “tyrannical principle.” What difference, asked Taylor, did a man’s occupation make concerning his natural rights, anyhow? Whether a farmer, manufacturer, merchant, lawyer, or doctor, all free men were entitled to the same right to their labour and property. “It is equality of rights, and nothing else, which constitutes a free, fair, and mild government.”
Protectionist tariffs, in addition to fundamentally immoral, were also blatantly unconstitutional. Since the Constitution created a federal government between separate and equal States rather than a national government over one people, its powers pertained only to the States, not “persons and things.” Tariffs, however, targeted individuals, interests, and sections of the Union for exploitation and others for enrichment. The general-welfare clause limited the federal government to measures which benefited all States equally, yet tariffs were inherently unequal in their effect. “Congress can only impose taxes, constitutionally, for the defence and welfare of the states,” Taylor asserted, “and an imposition of taxes for the purpose of enriching one state, one interest, or one individual, at the expense of another state, another interest, or another individual, is as unconstitutional as it is adverse to the freedom and fairness of exchange.” Taylor quoted Alexander Hamilton in the Federalist Papers, detailing how the prospective federal government would have no authority to promote any industry over another. “Exorbitant duties on imported articles tend to render other classes of the community, tributary, in an improper degree, to the manufacturing classes,” said Hamilton, creating “inequality, between the manufacturing and non-manufacturing states.” Once the Constitution was ratified, however, Hamilton – another lying Federalist, in Taylor’s mind – came out as the leading voice for the very tariffs he said would be oppressive and discriminatory. “What a whimsical thing is party politicks!” remarked Taylor.
The federal government’s constitutional power to “regulate commerce” was frequently trotted out as a legal justification for protectionism. Yet, the power to regulate commerce could not extend to its power to tax, for taxation was already subject to constitutional limitations. “The power to regulate commerce could not be intended to convey to congress an indefinite power of taxation, because a definite power of taxation had already been expressed.” Direct taxes had to be collected in proportion to the census; taxes on exports were prohibited; and no preferential treatment, by any regulation, could be given to one state’s ports over another. Protectionist tariffs, argued Taylor, violated each of these restrictions. First, although tariffs were indirect taxes in form, they were direct taxes “in fact,” and thus should be in proportion to the States’ populations. Because the Southern states comprised a minority of the population – even with their slaves – the Northern states would have to pony up for the expensive government they wanted. Second, foreign consumers of American exports often paid in kind (i.e. with exports of their own rather than cash). By taxing the medium of exchange in American trade, exports fell as if taxed directly. If anything, tariffs were a “double tax,” depressing the value of what Americans were selling abroad and inflating the price of what they had to buy at home. Third, protectionist tariffs amounted to preferential treatment for ports. The whole point of a protectionist tariff was to force up the price of imports so that Americans – particularly Southerners – would be forced to substitute overpriced Northern manufactures for the more competitive imports. The ports in the manufacturers’ States benefited from this government-engineered draining of money across the Mason-Dixon Line, as it was from those ports where many Northern manufactures were shipped to the South.
Although the amount of “verbal subterfuges” by which the federal government attempted to usurp power and violate liberty was overwhelming, Taylor was confident that the Constitution, properly construed, could guard against them all. “Man’s foresight cannot anticipate all the artifices of ambition and avarice,” admitted Taylor, “but the restrictive clauses of the constitution, compared the limited powers bestowed, demonstrate an abhorrence of the idea, that the federal government should have a power of bestowing preferences of any kind upon states, districts, or occupations.”
Taylor was especially appalled that those who paid the price of protectionism were primarily poor farmers. “Morality may calmly disapprove of the rich plundering the rich, but humanity shrinks with no little impression of abhorrence, from the idea of the rich plundering the poor.” To Taylor, the rich preying on the poor was “worse than fraud,” but “grinding oppression.” The industrialists’ profession that protectionism helped the poor and strengthened the nation was a sham to justify their monopolistic privileges from the government.
“Combinations have hitherto succeeded by deluding particular states into an opinion, that they would be benefitted by serving under the banners of mercenary self-interest,” claimed Taylor. Indeed, Taylor insisted that the North and the South were not foes, but friends. Their economies were complementary, each specializing in what it produced best and engaging in free interstate trade. It was the “monied interest,” a wealthy and powerful faction of government-dependent bankers and industrialists, which exploited their differences and divided them against each other. “An intercourse upon fair and equal terms, between the sections of the union, founded in an exchange of agricultural labor for naval, commercial, and manufactural, is the basis of mutual prosperity,” said Taylor, “and utterly distinct from the speculations of a monied interest, whose prosperity is founded in principles, always hostile to the interest of labour.” Indeed, most Northerners did not even benefit from the financial schemes they supported! While the people of the North and the South paid the costs, the bankers and industrialists reaped the profits. “The policy of fostering combinations by federal laws, has undoubtedly transferred, and continues to transfer, a considerable portion of the profits of labour, from one portion of the union to another,” explained Taylor, “not to enrich the people generally of the receiving states, but to amass great capitals for a few individuals residing in them; towards which all the states must contribute, and by which is artificially reared a monied interest at the expense of the whole community.”
The machinations of this monied interest, claimed Taylor – which had “deluded” the Northern States onto its side – had “already produced awful calculations in reference to a dissolution of the union.” The rise of a “geographical majority” of North over South was the harbinger of disunion, as the South, like her revolutionary forefathers, would never submit to the usurpations over her persons and property which such a majority aimed to impose. For now, Taylor cautioned, the North and the South were fighting with pens, but soon they may be fighting with swords. The prospect of civil war pained Taylor, who desperately maintained that Northerners and Southerners were not enemies, but allies, and had no real reason to fight in the first place. “For what are the states going to disunion, and for what are they going to war amongst themselves?” Taylor asked. “To create and establish a monied sect, composed of privileged combinations, as an aristocratic oppressor of them all,” he answered bitterly.
In 1820, Missouri and Maine were admitted to the Union on a compromise in Congress. When the Missouri Territory petitioned Congress for admission to the Union, the House of Representatives voted for the abolition of slavery within Missouri as a precondition for statehood. When the Northern-controlled Senate rejected the measure, statehood stalled and tempers flared. The “Missouri Compromise” broke the deadlock, regulating slavery in the Territories along the 36°30 latitude by permitting it southward and prohibiting it northward. The Northern attempt to block the admission of Missouri on an alleged objection to slavery was not an act of humanity, however, but a political calculation to stop the growth of Southern power. The Northern-based Federalists had been irrelevant for twenty years and counting, having lost the last four presidential elections to a Virginian of the Southern-based Democratic-Republican Party (the next year, they would go on to lose another). Since the people had decisively rejected their agenda of a strong central government, the Federalists decided to divide the Union along the line of slavery, hoping to exclude new Southern States from the Union and secure a sectional supremacy of North over South, all the while cloaking their political aspirations with moral pretension. Taylor agreed with Jefferson that the issue was nothing more than a “mere party trick” for power and yet also a “fire bell in the night” which spelled the doom of the Union. This competition between the North and the South over control of the Territories – and thus new states – would continue until the so-called “Civil War.”
“The idea of a balance of power between two combinations of states, and not the existence of slavery,” argued Taylor, “gave rise to this unfortunate, and I shall endeavor to prove, absurd controversy.” Taylor vividly compared the controversy to the three witches of Macbeth, casting the ingredients “ambition, avarice, exclusion, privileges, bounties, pensions, and corporations,” disguised as “slavery,” into a cauldron while chanting a curse.
A balance of power belonged between hostile nations like England and France, observed Taylor, but not federated States. Any struggle for power was doomed to end tragically, as the losing side would eventually attempt to free itself from the grasp of the other. If Congress would simply do its duty and confine itself to the powers “common to all” then there would be no reason for “combinations” of States to form against each other in the first place. “The extreme anxiety to obtain a preponderance acknowledges a thorough conviction on both sides and that it will sacrifice the interest of some states and individuals to advance that of others.” To Taylor, the very idea of dividing the Union along the line of slavery seemed unnatural. “Climate, proximity, and navigation” were the only “natural causes” which could separate states into different sections, yet the States were all too diverse for such a division to take place. Even the closest sister states of any section, such as Maine and Ohio, or Maryland and Missouri, did not all share all of the same interests. “Slaveholding” and “non-slaveholding” States were artificial distinctions which forced two sections which were otherwise at peace into “combinations” against each other.
Taylor saw the debate over Missouri as a dangerous development in the rising tide of federal encroachment against States’ rights, beginning with debt and followed by banks, tariffs, and pensions. Next came the “idea of using slavery as instrument for effecting a balance of power” leading to “new usurpations of internal powers over person and property” which would “beget a dissolution of the union.” Taylor compared this creeping centralization of power to the Serpent’s corrupting presence in the Garden of Eden. “If the division of powers between the state and federal governments be rooted out of the federal constitution, and the freedom of labour or of property should be lost, by the temptations of the two devils, avarice and ambition, to induce legislatures to meddle with forbidden fruit,” predicted Taylor, “the essence of our political system will be destroyed, and with it our vaunted residence in a region of political felicity.”
As if it were not enough that it portended a sectional conflict which could lead to the dissolution of the Union, the Missouri Compromise also happened to be unconstitutional. First, States were prohibited from forming agreements or compacts with other States, yet the compromise was obviously such an agreement. “Is not the Missouri agreement or compact, a positive violation of this plain prohibition…clearly unconstitutional from this single consideration?” marveled Taylor. “It is a compact or agreement by one half of the states with the other half.” Second, it had been “definitively disposed of by the federal compact” that the legality of slavery was an internal affair of each sovereign State. “A southern majority in congress has no right to compel the northern states to permit slavery,” avowed Taylor, “nor a northern majority to compel the southern states to abolish it, because it is a subject of internal state regulation prohibited to congress, and reserved to the states.” Third, the federal government only had the authority to “admit” new States to the Union, not to “modify” them. If Congress was not allowed to meddle in the internal affairs of “old states,” then it was equally forbidden from meddling in the internal affairs of “new states.” Fourth and finally, the federal government was obliged to guarantee a republican government for each State. The essence of republicanism was “representation,” yet Missouri’s internal affairs were under attack before she was even represented in Congress.
Taylor counseled caution in freeing the slaves, pointing to the catastrophic failure of emancipation in the French colony of St. Domingo. Liberté, égalité, and fraternité were given to the French slaves overnight, and the result was the slaughter of the white population and the defeat of an army Napoleon dispatched to stop the rebellion. “An intemperate zeal, united with an ignorance of local circumstances,” warned Taylor, “had to bewail the massacre of about forty thousand white men, women, or children, of about thirty thousand mulattoes, after they had united with the blacks in that atrocity, of about one hundred thousand of the blacks themselves, and of dividing the residue into tyrants, and slaves.” Hopefully, America would learn from France’s mistake and follow a more conservative course. After all, bottom-up emancipation was already progressing at an acceptable rate without any top-down interference. “A reformation of longstanding evils is best affected by slow remedies,” argued Taylor, “and the progress made by the states themselves towards diminishing this, shews that they may be trusted with confidence in an affair of their own, of which they are the best and rightful judges.” Indeed, around ten years later, Taylor’s Virginia would seriously debate emancipating her slaves.
If the North could exclude Southern States from admission to the Union, then Southern political power would wane as Northern power waxed. “The ends to be effected are, a monopoly of the office of government, and of the partialities of congress.” Even if the North gained control of the federal government, Taylor was sure that her victory would prove bittersweet. Although the North would “absorb the office of government, and the favours of congress” to “gratify the avarice and ambition of a few individuals among them for a short space,” such oppression would drive the South out of the Union, thus killing the goose that laid the golden egg. A federal government controlled by national parties composed of Northerners and Southerners would be stronger than one in which one section lorded itself over another.
Construction Construed and Constitutions Vindicated is an exemplary exposition of States’ rights, a doctrine first derived from the American Colonies’ status in the British Empire and later adapted to an independent American republic. Taylor saw States’ rights as equivalent to the natural right of self-government – i.e. the right of the people of the states to govern themselves – and thus nothing less than the key principle of the American Revolution itself. Furthermore, Construction Construed and Constitutions Vindicated is an early look at the rift between the North and the South. Although the schism would, like a black hole, grow increasingly larger as it drew more issues into its reach, Taylor delineated all of the basics forty years before they came to a head: the consolidation of power in Washington, D.C., federal legislation plundering the South for Northern profit, and stirrings over slavery. Sadly, Taylor, like Jefferson, died believing that America had forfeited all of the liberties she had won by independence, and worried that the American Revolution was ultimately futile. To vindicate Taylor’s Constitution from the so-loose-it’s-laughable construction which reigns today, States’ rights must be restored to their former glory.