DiLorenzo: The Men Who Destroyed the Constitution


Richard Moore

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The Men Who Destroyed the Constitution
by Thomas J. DiLorenzo

In his 1850 Disquisition on Government, John C. Calhoun argued that a written 
constitution would never be sufficient to contain the plundering proclivities of
a central government. Some mechanisms for assuring consensus among the citizens 
of the states regarding "federal" laws would be necessary. Consequently, Calhoun
proposed giving citizens of the states veto power over federal laws that they 
believed were unconstitutional (the "concurrent majority"). He also championed 
the Jeffersonian idea of nullification. To Calhoun (and Jefferson), states¹ 
rights meant that the citizens of the states were sovereign over the central 
government that they created as their agent, and could only be so if such 
mechanisms ­ including the right of secession ­ existed.

Without these political mechanisms the forces of nationalism, mercantilism, and 
political plunder would relentlessly reshape the Constitution with their 
rhetoric, and their efforts would eventually overwhelm the strict 
constructionists. At that point the Constitution would become a dead letter.

In his new book, The Constitution in Exile, Judge Andrew Napolitano explains in 
very clear language just how prescient Calhoun was. The biggest special-interest
group of all ­ the federal government itself ­ has "seized power by rewriting 
the supreme law of the land," as Judge Napolitano says in the subtitle to his 
book. Just as Calhoun predicted. The purpose of the book, says the judge, is to 
tell "the unhappy story of liberty lost, federalism trampled, and Big Government
run amok." How did we get to the point, he asks, of where the "federal" (i.e., 
central) government defines for us the drinking age for alcohol, how much wheat 
farmers can grow, the ability of terminally ill cancer patients to medicate 
themselves with marijuana, the amount of sugar that can be used in ketchup, and 
even the size of toilets?

Unlike the neocons who surround Judge Napolitano in his appearances on the FOX 
News Channel, he understands that freedom comes "from God and is inherent to our
humanity . . ." "Freedom" is not derived from military adventurism under the 
guise of phony humanitarianism, as the David Horowitz/William Kristol/Rush 
Limbaugh/ crowd would have us believe. (For an amusing rendition of this 
fascistic theory take a look at the web site of the "David Horowitz Freedom 

Judge Napolitano is one libertarian who is not intimidated by the forces of 
political correctness, a defining feature of so many "beltway libertarians." 
Consequently, he is not afraid to recognize the truth about the American 
founding: "The states were sovereign entities that the Continental Congress 
could not directly control. Essentially, there was no binding central 
government" Even better, "Congress could not tax the people of the United states
(Ah, the good old days!)" Advocates of centralized governmental power have long 
falsely associated statements about states¹ rights with racism and slavery, 
which has intimidated most beltway libertarians, but not Judge Napolitano.

After a lucid explanation of each section of the Constitution the judge 
discusses how the nationalist/mercantilist coalition, led by Alexander Hamilton 
and his accomplice Judge John Marshall, conspired to effectively rewrite (and 
undermine) the Constitution almost as soon as he ink was dry on the original 
copy. The "Federalists" (who would eventually morph into the Whigs, and then the
Republicans) never accepted their defeat in the Constitutional convention (which
created a federal, not a national government). Nor did they accept Jefferson¹s 
election as president. Thus, two days before his term ended the Federalist 
President John Adams appointed dozens of "midnight federal judges" and appointed
John Marshall to the Supreme Court on March 3, 1801, one day before he would 
leave office. Marshall "spent the remainder of his career finding clearly 
disingenuous, historically inaccurate, and highly questionable justifications 
for ruling that federal power is not limited," writes Judge Napolitano.

In his most famous decision, Marbury vs. Madison, Marshall gave the federal 
judiciary the power to rule on the constitutionality of both statutory law and 
the behavior of the executive branch. "[T]his means that the Supreme Court 
granted itself the authority to declare the will of the people . . . null and 
void . . ." This of course has caused endless mischief and tyranny. This 
principle of a monopoly in reviewing constitutionality was not widely accepted, 
however, until after Lincoln¹s war of 1861­1865 destroyed state sovereignty once
and for all. Until that point, many Americans believed that the citizens of the 
states, as well as the president and Congress, should have equally legitimate 
claims on interpreting the Constitution. As President Andrew Jackson famously 
said, "John Marshall has made his decision, now let him enforce it if he can."

Marshall and his fellow Federalists, such as Justice Story, also paved the way 
for the Supremacy Clause of the Constitution. This clause only grants 
"supremacy" to the central government on the seventeen specific functions of the
central government that are delineated in Article I, Section 8, period, many of 
which have to do with waging war and foreign policy. This power has been grossly
abused by implying that the central government is somehow "supreme" in anything 
and everything vis-à-vis the citizens of the states. This of course is a perfect
recipe for tyranny.

Judge Napolitano recognized that it was Federalists like Joseph Story and John 
Marshall, and later Whig politicians like Daniel Webster and Abraham Lincoln, 
who would tell The Big Lie that the Constitution was ratified by "the whole 
people" and not as it actually was ­ by the citizens of the sovereign states, 
with their representatives assembled in state conventions. "That was both 
historically incorrect and intellectually dishonest," says Judge Napolitano.

According to this false view of the American founding the central government was
always the master, not the servant, of the people. This, too, is a perfect 
recipe for tyranny that has been made by tyrants everywhere (Hitler even invoked
this argument in Mein Kampf to make his case for destroying state sovereignty in

In McCulloch vs. Maryland Marshall enshrined into law Hamilton¹s dangerous (to 
liberty) notion that there were supposedly "implied powers" in the Constitution.
He did this in order to justify a central bank, which is mentioned nowhere in 
the Constitution under actual powers. This created the situation where the 
powers of the central government were only to be limited by the imaginations of 
federal politicians. Judge Napolitano proceeds to describe myriad examples of 
this, from the PATRIOT Act ("a lawless law because it allows the federal 
government to obtain information without a warrant, thus violating the Fourth 
Amendment") to census snooping, television regulation, and hundreds of other 
major and minor power grabs.

By far the most brilliant chapter of The Constitution in Exile is chapter four, 
entitled "Dishonest Abe: The Lincoln You Didn¹t Know." Here the judge recounts 
how, "In order to increase his federalist vision of centralized power, ŒHonest¹ 
Abe misled the nation into an unnecessary war." And, "with very little regard 
for honesty, Lincoln increased federal power and assaulted the Constitution. His
actions were unconstitutional, and he knew it." Moreover, "Lincoln¹s view was a 
far departure from the approach of Thomas Jefferson, who recognized states¹ 
rights above those of the Union." He goes on to present chapter and verse of the
abuse of the constitution and the consolidation of political power in Washington
that took place during and after the Lincoln regime. "Lincoln increased the 
power of the federal government at the expense of the rights of the states and 
civil liberties. This opened the door to more unconstitutional acts by the 
government in the 1900s through to today." The judge also recognizes that all 
other countries in the world ended slavery peacefully, which could have happened
in the U.S had the slaves not simply been used as political pawns by the 
neo-federalist Republican Party to achieve its main goal, the consolidation of 
political power in Washington and the destruction of citizen sovereignty. "The 
next time you see Lincoln¹s portrait on a five-dollar bill," writes Judge 
Napolitano, "remember how many civil liberties he took away from you!"

Thanks to the final victory of the Federalist/Whig/Republican cabal continued to
enhance governmental power and diminish liberty by perverting the Commerce 
Clause of the Constitution in the post-war years in ways quite familiar to many 
LRC readers. By the late nineteenth century, the monopolistic federal judiciary 
began attacking capitalism in the name of regulation that supposedly served "the
common good." The judge is wise enough to understand that capitalism itself 
serves the common good, and that regulation more often than not is the result of
special-interest politics. These attacks intensified during the New Deal, which 
"codified socialism, evaded the Constitution, disregarded the Natural Law, and 
put individualism on the path to extinction."

And here¹s a shocker: "Between 1937 and 1995, not a single federal law was 
declared unconstitutional by the Supreme Court. Not one piece of legislation was
seen as exceeding the scope of Congress¹s commerce power." (Emphasis added). So 
much for the phony argument that "judicial review" by the federal courts acts to
protect liberty. Instead, it does the opposite: It expands the size and scope of
government at the expense of liberty. This sad story is told over the course of 
several of the latter chapters of The Constitution in Exile.

The back cover of Judge Napolitano¹s book has blurbs from such high profile 
neocons as Bill O¹Reilly, Sean Hannity, and Rush Limbaugh (as well as civil 
libertarian Nat Hentoff and liberal commentator Alan Colmes). I doubt that the 
neocons on this list ever read the book, however. In a chapter entitled "After 
9/11" the judge writes that "The PATRIOT Act and its progeny are the most 
abominable, unconstitutional governmental assaults on personal freedom since the
Alien and Sedition Acts of 1798" and "the most unpatriotic of the things that 
the Bush administration and this [Republican controlled] Congress could have 
visited upon us." (These "most unpatriotic of things" are what O¹Reilly, 
Hannity, and Limbaugh have spent hundreds, if not thousands, of hours defending 
on their respective television and radio shows.)

And it is indeed unpatriotic and traitorous to the Constitution to support 
current policy, which is that "federal agents and local police can write their 
own search warrants, serve them on American financial institutions without the 
intervention of a judge, and obtain information about you without you even 
knowing it!" The PATRIOT Act "has allowed the government to circumvent 
completely the Fourth Amendment" and "makes it a crime ­ punishable by five 
years in jail ­ for the recipient of a self-written search warrant to tell 
anyone that he or she has received the search warrant." These rats know that 
they are rats.

It gets worse. "The government can now . . . break into your house . . . steal 
your checkbook, put an electronic bug under your kitchen table, and make it look
like it was a house burglary. It can even leave and not tell you or the local 
police what has happened."

Dub-Yuh is recognized as the tyrant and dunce that he is: "President Bush does 
not recognize the constitutional limitations imposed on his office. His only 
concern is with victory over Œthe enemy,¹ whoever that may be. "

So what can be done? Among Judge Napolitano¹s common sense recommendations are 
abolition of the income tax ("the Sixteenth Amendment . . . should be abolished 
outright"); same for the Seventeenth Amendment which called for the direct 
election of U.S. senators and a return to the system of appointing them by state
legislatures; and the recognition that the federal government will never check 
its own power. "Thus, I would clarify the right of the states to secede from the
Union," writes the judge from New Jersey, "losing all the benefits that come 
from membership [in the union], but regaining all the freedom membership has 
taken away.

The U.S. government is now characterized by dictatorial power, abuse of every 
kind of personal liberty, confiscatory taxation, economic fascism, dangerous 
militarism, and imperialism. Every American who is concerned about this 
Nazification of the American government needs to own a copy of The Constitution 
in Exile.

August 26, 2006

Thomas J. DiLorenzo [send him mail] professor of economics at Loyola College in 
Maryland and the author of The Real Lincoln: A New Look at Abraham Lincoln, His 
Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His next 
book, to be published in October, is Lincoln Unmasked: What You¹re Not Supposed 
To Know about Dishonest Abe (Crown Forum/Random House).

Copyright © 2006 LewRockwell.com
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