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February 2017 Policy Study, Number 17-2

   

A Commentary on the American Founding

   

Part 10

   

 

A government totally national in nature has a direct and “indefinite supremacy over all persons and things.”  Moreover, “this supremacy is completely vested in the national legislature” and “all local authorities are subordinate to the supreme.”  Our Founders were not about to condone or sanction any such animal without limitations and counter-balance. It is critically important to note that the supremacy mentioned applied only “so far as they are objects of lawful government.”  It will also be useful at this time to draw a distinction between “lawful” and “legal.”  Something is legal if it comports to the law of the land, man’s law, more appropriately understood as “civil code” or “statute law.”  What we so blithely refer to as laws are merely legal statutes.  Our Founding Fathers completely understood that for something to be lawful, it was necessary for it to comport to the “Laws of Nature and Nature’s God.”  Then, and only then, would it be lawful.  “Among communities united for particular purposes (a federation of states), the local or municipal authorities form distinct and independent portions of the supremacy . . . no more subject . . . to the general authority than the general authority is subject to them,” within their respective spheres.  The communities (states) are also an intermediary, or buffer if you will, between the direct authority of a national government and the individual sovereign citizen.  Our Founders went to great lengths to secure this protective relationship.

 

The Union government’s jurisdiction is to be limited to the objects enumerated in the Constitution, and the states are to retain an “inviolable sovereignty” over all other objects.  Most of the objects of authority, with respect to entities other than itself, that fall within the domain of the Union government are enumerated in Article I, Section 8 of the Constitution.  The duties of that government that are found within the confines of the Constitution were to be the only “objects of lawful government.”  Period!  If a power was not specifically delegated to the general government, it was to remain in the province of the state.

 

We apply the name “federal” or “national” to the government of our nation interchangeably; but, as you can see, neither is entirely accurate because of its dual nature.  It is the federal nature of our government that seems to be less appreciated and more diminished with each passing day.  The national nature of government grows inexorably at the expense of the federal nature.  Indeed, it is my belief, that the national nature of our central government has become the proverbial eight-hundred-pound gorilla.  It should take no more than a cursory look at the behavior of our national government today to convince you that the “inviolable sovereignty” of the states, and the people therein, is all but ignored.  The battle over the nature of a central government, as to just how federal and just how national that government was to be, was initiated with the proposal of our current Constitution.  Then, as now, there were people on both sides of the argument, and as near as can be ascertained, they engaged in the fray with honorable motives.  There were those who wished to adopt the proposed constitution immediately and as it was proposed.  (But it was proposed without the Bill of Rights.)  There were also those who had reservations in this area, as well as others, and these were not so much in a hurry.

 

The first group, being shrewd in their assessment of the prevailing sentiment of the time, quickly adopted the name “Federalists.”  They were well aware that the disposition of the Colonists was most favorable to the philosophy of federalism.  This was a stroke of public relations genius.  It wasn’t that these gentlemen were not themselves favorably disposed to federalism; but rather, that in the interest of the central government, they were inclined to more easily part with some of their federalist leanings than were others.  The Federalist Papers were written by a group comprised of Alexander Hamilton, James Madison, and John Jay [who went on to become our first supreme (sic) Court Chief Justice].  Every tract that each man wrote in this effort was signed with the pseudonym of “Publius.”

 

The other group was caught short and in a bind.  It was this group of writers who were the more ardent supporters of the principles of federalism; that is, they were more reticent to part with the less adulterated principles of federalism found in the Articles of Confederation.  Some thought they were the rightful bearers of the name of “Federalist,” and I have read somewhere they might have even been a little resentful at the turn of events.  In any case, they were dubbed the “Anti-Federalists.”  As you can see, this was not to show any opposition to the principles of federalism, but to indicate their difference of opinion with the group who had already claimed the name of “Federalist.”  This group was less well-known than the first, and there is even some uncertainty as to their identities because they also chose to write using a pseudonym.  Their choice of pseudonym gives us some indication of their point of view.

 

“Brutus” may have been a delegate to the Constitutional Convention from New York named Robert Yates.  “Cato” may have been New York Governor George Clinton.  The original Brutus and Cato were both staunch defenders of liberty and antagonists of the usurpations and tyranny of Julius Caesar.  In fact, it was Brutus who helped to slay Caesar.  John DeWitt was a seventeenth century Dutch patriot who challenged the usurpations of the central government of his country.  So far I have not discovered a clue as to who wrote using his identity.  “Centinel,” which is an early American spelling of “sentinel,” was probably Samuel Bryan.  A sentinel is a guard or a sentry.  For me, there is no doubt it was on our behalf he stood his watch.  The “Federal Farmer” was probably Melancton Smith, a delegate to the convention who spoke with passion for his beliefs at that gathering.  Two others with this perspective who also played a large role were James Wilson and Patrick Henry.  It is important to reiterate that these men were not opposed to government, but they were most ardent and jealous in the defense of their God-given liberty.

 

These two opposing groups did not always clash point by point.  In fact, they held some common ground.  Each group was aware of and acknowledged the shortcomings of the Articles of Confederation, and each was willing to fashion substantial changes in the structure, organization, and operation of our government.  As remains the case today, the devil was in the details.  The disagreements of greatest magnitude seem to fall into three areas:  1) Just how much independence and sovereignty was the state to cede to the central government? 2) Was the operation of the central government to affect the state directly and thereby the individual citizen indirectly, or was it to affect the individual citizen directly and to what degree? 3) And would there be a guarantee that a Bill of Rights would be amended to the proposed Constitution very shortly after its ratification?  This provision was perceived by the Anti-Federalists as entirely necessary to preserve the rights of the individual from an over-zealous government.

 

Neither side of the argument seems to have won a decisive victory, nor was either side entirely accurate in their pronouncements as to the future under the instrument.  Today, with over two hundred years of hindsight and experience with this instrument, it is easy enough to critique their performance.  But we must remember that we have gotten to personally experience, or at least read about, the things upon which, in their time, they could only speculate:

 

Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination?  The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected.  It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment.  It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.  (The Federalist Papers, No. 38).

 

   

 

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