1d - The Form and Shape of the Constitutional Order

Chapter One – The Form and Shape of the American Constitutional Order
-18-
- ONE -
_______
_______
THE FORM AND SHAPE OF THE AMERICAN
CONSTITUTIONAL ORDER
―If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on
government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in
this: You must first enable the government to control the governed; and in the next place, oblige it to control itself…‖
—JAMES MADISON, FEDERALIST NO. 51 1
WHY LIMIT GOVERNMENT?
NLIMITED POWER IS IN ITSELF A BAD and
dangerous thing,‖ counseled the Frenchmen
Alexis de Tocqueville. ―Human beings are
not competent to exercise it with discretion. God
alone can be omnipotent, because His wisdom and
justice are always equal to His power.‖ He reasoned,
―There is no power on earth so worthy of honor in
itself, or clothed with rights so sacred, that I would
admit its uncontrolled and all-predominant authority,
when I see the right and the means of absolute
command conferred on any power whatever, be it
called a people or a king, an aristocracy or a
democracy, a monarchy or a republic, I say there is a
germ of tyranny, and I seek to live elsewhere, under
other laws.‖2
History abounds with lessons of
historical periods marked by unfettered power that
inexorably yielded to despotism and tyranny.3
Why limit government? To libertarian Americans, the necessity of placing limits upon political
power has been self-evident. Mankind is by nature flawed and sinful.4
Historic evidence abounds of the
perilous consequences of political power without effective restraints to thwart the concentration of power.
Why the need for limitations on power? We can start with sacred scripture. In the Biblical narrative of First
Samuel Eight, by way of the prophet Samuel, God counseled the wayward Israelites of the perils posed by
their want of an absolute monarch to rule over them in place of the rule of judges under God. Prior to that
1 James Madison, ―Federalist #51,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 356.
2 Alexis de Tocqueville, Democracy in America, Richard D. Heffner ed. (New York, NY: Penguin Putnam, 1956), 114-115.
3 Jim Nelson Black, When Nations Die – America on the Brink: Ten Warning Signs of a Culture in Crisis (Wheaton, IL: Tyndale House Publishers, 1994), 64-
70.
4 M. Stanton Evans, The Theme is Freedom: Religion, Politics, and the American Tradition (Washington, DC: Regnery Pub., 2004), 103. ―Mistrust of human
nature armed with power was universal among the Founders, and the basis of the limited government system that they established. Hostility to unchecked power was the
leading idea in all debates about the Constitution, expressed in one fashion or another by all the major actors. A fair statement of the composite view is that the
impulses and disorders of human nature made government necessary, but also made it dangerous. Hence the need for checks and balances, divided powers,
safeguards of all descriptions.‖
U

Revolution, Republic, and the Principles of 1798
-19-
time, as Judges 21:25 reports, ―there was no king Israel: every man did that which was right in his own
eyes,‖ and there were God-ordained judges to adjudicate disputes among men:5
(10) And Samuel told all the words of the LORD unto the people that asked of him a king. (11) And he
said, This will be the manner of the king that shall reign over you: He will take your sons, and
appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his
chariots. (12) And he will appoint him captains over thousands, and captains over fifties; and will set
them to earn his ground, and to reap his harvest, and to make his instruments of war, and
instruments of his chariots. (13) And he will take your daughters to be confectionaries, and to be
cooks, and to be bakers. (14) And he will take your fields, and your vineyards, and your oliveyards,
even the best of them, and give them to his servants. (15) And he will take the tenth of your seed, and
of your vineyards, and give to his officers, and to his servants. (16) And he will take your menservants,
and your maidservants, and your goodliest young men, and your asses, and put them to his work. (17)
He will take the tenth of your sheep: and ye shall be his servants. (18) And ye shall cry out in that day
because of your king which ye shall have chosen you; and the LORD will not hear you in that day.
¶(19) Nevertheless the people refused to obey the voice of Samuel; and they said, Nay; but we will
have a king over us; (20) that we also may be like all the nations; and that our king may judge us, and
go out before us, and fight our battles. (21) And Samuel heard all the words of the people, and he
rehearsed them in the ears of the LORD. (22) And the LORD said to Samuel, Hearken unto their
voice, and make them a king. And Samuel said unto the men of Israel, Go ye every man unto his
city.6
Herein the Scriptures, there is no vindication of the absolutism customary among the ancients, but a
professed mistrust of the absolute power welded by kings. As the ancient Israelites refused to heed the
admonition of Samuel, his warning soon proved prescient. God intended civil government to be limited in
power (Deut. 17:14-20), but relented and gave the Israelites the King they sought due to the hardness of
their hearts. The conflict between Solomon‘s son, Rehoboam, and the elders of Judah (1 Kings 12:6-19)
exemplifies the struggle between the ruler and the ruled.7
John Calvin surmised the actions of the
disobedient Israelites‘, ―a formerly free people who sought royal dominance and subjected themselves to it
and thus gave up their liberty really deserves no better.‖8
It served as a lesson to Jew and Gentile alike that
the state was at best a necessary evil. While ordained of God, the state is administered by fallible men.9
The
lesson posed by the prophet Samuel is reminiscent of John Acton‘s salutary proverb: ―Absolute power
corrupts, and absolute power corrupts absolutely.‖10
The rationale for government is the same rationale for
limited government. Ever liable to abuse power, sinful man cannot be trusted with unbridled power.
―Unlimited power,‖ echoed Cato‘s Letters, ―is so wild and monstrous a thing that however natural it be to
desire it, it is as natural to oppose it; nor ought it to be entrusted with any mortal man, be his intentions ever
so upright… It is the nature of power to be ever encroaching.‖11
America‘s founding generation were keenly aware of the moral quandaries posed by fallen man and
the implications it raised for the body politic. Samuel Adams opined that ―ambition and lust for power…
are predominate passions in the breasts of most men.‖ Rev. Jonathan Mayhew exclaimed: ―power is of a
grasping, encroaching nature…[it] aims at extending itself and operating according to mere will, whenever it
5 Judges 21:25, The Holy Bible: King James Version (2000).
6 1 Samuel 8, The Holy Bible: King James Version (2000); David Boaz, ed. ―1 Samuel 8,‖ The Libertarian Reader: Classic and Contemporary Writings from Lao-Tzu
to Milton Friedman (New York: NY: The Free Press, 1997), 5.
7 Ibid., Boaz, ed.
8 Douglas Kelly, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through the 18th Centuries (Phillipsburg,
NJ: Presbyterian & Reformed Pub., 1992), 18.
9 Evans, The Theme is Freedom:, 134-35.
10 John Acton quoted in James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (Indianapolis, IN:
Liberty Fund, 2000), 13.
11 W. Kirk Wood, Nullification: A Constitutional History, Vol. 1, James Madison, Not the Father of the Constitution (Lanham, MD: Univ. Press of America,
2008), 12.

-20-
meets with no balance, check, constraint or opposition of any kind.‖12
George Washington remarked,
―Government is not reason. It is not eloquence. Government is force; like fire it is a dangerous servant—
and a fearful master.‖13
John Adams wrote: ―There is danger from all men. The only maxim of a free
government ought to be to trust no man living with power to endanger the public liberty.‖14
This
skepticism of power compelled these noble statesmen in support of a constitutionalism that effectuated
meaningful limitations upon political power.
Astonishingly absolutism has been defended all through history. Absolute power, in the hands of a
monarchial regime, was deemed requisite by many political theorists for advancing the common good.15
Such political formulas were contended for by such intellectual minds as Jean Bodin, Thomas Hobbes, and
King James I of England. History has furnished instances of brief epochs where absolute monarchs ruled
with sublime restraint, which allowed culture and civilization to thrive. But with unfettered powers, the
odds are in favor of rulers like Nero or Caligula, not an enlightened philosopher-king.16
The concept of
limited government had its origins in medieval Christian thought, in sharp contrast to the post-
Enlightenment regimes of absolutism. The notion of divided power may be traced to the words of Jesus to
the Pharisees: ―Render unto Caesar, the things that are Caesar‘s, and unto God the things that are God‘s.‖17
Christ made it clear that not all life was under the control of the state.18
In the Christian summation of the
socio-political order, God ordained communities and nations. The civil authorities were reduced to the
practical function of procuring peace, public order, and administering
justice therein. The civil authorities did their duty under God, and
alongside the ecclesiastical authorities, not above them. The eternal realm
beyond our own concerns the spiritual and moral aspects of the human
life. God stands as the just judge to right the wrongs of this temporal
realm, and holds the civil officers accountable.19
Experience demonstrates the likelihood for tyranny where power
was not balanced, circumscribed and diffused. The Founders‘ desire for
free government was responsive to this predicament and manifests the
prudence of their statesmanship. Their political philosophy rested on a
minimalist state and popular sovereignty. Madison observed, ―If men
12 Nullification: A Constitutional History, Vol. 1, James Madison, Not the Father of the Constitution , 12; Evans, The Theme is Freedom:, 99.
13 George Washington quoted in James Bovard, Freedom in Chains (New York, NY: St. Martin‘s Press, 1999), 10.
14 John Adams quoted in Bovard, Freedom in Chains, 10.
15 Thomas R. Dye, American Federalism: Competition Among Governments (Lexington, MA: Lexington Books, 1990). ―All governments, even democratic
governments, are dangerous. They wield coercive power over the whole of society. They tax, penalize, punish, limit, confine, order, direct, and regulate. They
seize property, restrict freedom, and even take lives, all under the claim of legitimacy. Governments expect people to accept these vexations as rightful. Thomas
Hobbes justified the creation of such a dangerous institution by arguing that it was the only alternative to anarchy—a war of all against all, ‗where every man is
enemy to every man‘ and life is ‗solitary, poor, nasty, brutish and short.‘ Only the ‗continual fear and danger of violent death‘ justified the establishment of a
Leviathan.‖
16 Felix Morley, Freedom and Federalism (Indianapolis, IN: Liberty Fund, 1981), 45; Keith Whittington, ―Constitutionalism,‖ American Conservatism: An
Encyclopedia. Bruce Frohnen, Jeremy Beer, and Jeffrey O. Nelson, eds. (Wilmington, DE: ISI Books, 2006), 192-193; John R. Graham, A Constitutional History of
Secession (Gretna, LA: Pelican Pub. Co., 2002), 185.
17 John Eidsmore, God and Caesar: Christian Faith and Political Action (Westchester, IL: Crossway Books, 1984), 16; William D. Gairdner, The Trouble With
Democracy: A Citizen Speaks Out (Toronto, Ontario, Canada: Stoddart Pub., 2001), 156-157. ―Render unto Ceasar the things which are Caesar‘s, and unto God the
things which are God‘s.‘ Jesus thereby established the ‗two heads of the eagle‘ of which Hobbes and Rousseau (and later Marx and Hitler) complained: all citizens
in Christian societies have two rulers, one earthly and one spiritual… It was Jesus, as Rousseau so bitterly complained, who ‗came to set up on earth a spiritual
kingdom, which, by separating the theological from the political system, made the state no logner one, and brought about the internal divisions which have never ceased
to trouble the Christian peoples.‘ Jesus created a ‗double power‘ and a ‗conflict of jurisdictions.‘ To all the later absolutist and totalitarian thinkers – especially
totalitarian democrats – such a split loyalty was intolerable. They argued vociferously that political and social unity (as embodied in the utopian schemes of
political planners) cannot possibly be achieved if power and moral allegiance are divided. The chief reason the modern secular welfare state has all but banished
God and prayer from the public square has been to eliminate this conflict of loyalties.‖
18 Boaz, ed. ―1 Samuel 8,‖ The Libertarian Reader, 5.
19 Alexander Landi, ―Was the American Founding a Lockean Experiment?,‖Arguing Conservatism: Four Decades of the Intercollegiate Review, Mark Henrie, ed.
(Wilmington, DE: ISI Books, 2008), 203. ―The idea of limited government is not specifically modern, but rather was original to medieval Christianity. In the
medieval vision of the church, the Body of Christ, is charged with the care of spiritual things, which are eternal, whereas the political community is concerned with
the things which will pass away with time. [T]he politic al community is inferior to the church, & must recognize the church‘s right to pursue its higher ends‖;
Gerhart Niemeyer, ―Two Socialisms,‖ Modern Age: The First Twenty-Five Years (Indianapolis, IN: Liberty Fund, 1988), 594-595.
―If men were angels, no
government would be
necessary. If angels were
to govern men, neither
external nor internal
controuls on government
would be necessary.‖
—JAMES MADISON

-21-
were angels, no government would be necessary. If angels were to govern men, neither external nor internal
controuls on government would be necessary.‖20
Madison confronted two sides of the same coin: mankind
was sinful that this reality rendered necessary restraints on political power in order to preserve ordered
liberty, and mankind is so flawed, that no one can be entrusted with absolute power. Since no angels were
available to govern, government of men by men demanded restraints on power and added safeguards.21
Jefferson posited, ―Sometimes it is said that man cannot be trusted with the government of himself. Can
he, then, be trusted with the government of others? Or have we found angels in the forms of kings to
govern him? Let history answer this question.‖22
Madison concurred, ―In framing a government which is to
be administered by men over men, the great difficulty lies in this: You must first enable the government to
control the governed; and in the next place, oblige it to control itself.‖23
History teaches the necessity of
securing the government against its own destruction. This entails safeguards against centrifugal forces of
uninhibited democracy24
and the centripetal forces tending toward consolidation that threatens an implosion
of the federal polity from within.25
Bryce described the durability of the federal system with an astronomy
metaphor. It ―keep[s] the centrifugal and centripetal forces in equilibrium, so that neither the planet states
shall fly off into space, nor the sun of the central government draw them into its consuming fires.‖26
The
contests provoked by resistance to absolutism dispel its supposed value for adding energy and stability to
the body politic. As political science has advanced, the consensus favors a diffusion of authority and power
to sustain free government.
While arguably misguided in his administration, President Woodrow Wilson judiciously proclaimed:
―The history of liberty is a history of limitations of governmental power, not the increase of it. When we
resist, therefore the concentration of power, we are resisting the powers of death because of concentration
of power is what always precedes the destruction of human liberties.‖27
Mindful of this timeless truth, the
Founders concerned themselves with questions of how to design and fortify a system of limited government.
In laying the groundwork of a free constitution, ―The framers [of the Constitution] sought to establish
sufficient power to deal with tasks of national scope, but to hedge that power around with every possible
safeguard,‖ observed M. Stanton Evans. Such safeguards include ―the convention method of conferring
and defining power, the written Constitution, the trisection of federal authority, the state-federal balance,
the doctrine of ‗enumerated powers,‘ the reserved authority of the states, a Bill of Rights.‖28
THE AMERICAN FEDERAL TRADITION
The United States is understood to be a federal polity. Federalism is a characteristic American gift
to political science, which makes ordered liberty tenable.29
The term ‗federalism‘ itself is derived from the
Latin root foedus—a ―formal agreement or covenant,‖ and its cognate fides (faith.)30
S. Rufus Davis has
suggested that ―synonymous ideas of promise, commitment, undertaking, or obligating, vowing and
20 Madison, ―Federalist #51,‖ The Federalist Papers, Wright, ed., 356; McClellan, Liberty, Order, and Justice, 327.
21 Ibid.
22 Thomas Jefferson, The Quotable Jefferson, John Kaminski, ed. (Princeton, NJ: Princeton Univ. Press, 2006), 141-142.
23 Madison, ―Federalist #51,‖ The Federalist Papers, Wright, ed., 356.
24 Alexander Hamilton, ―Federalist #15,‖ The Federalist Papers, Wright, ed., 157. Hamilton feared the centrifugal forces yielding to anarchy: ―…in the
nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external
attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a
common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which
there will be a perpetual effort in each to fly off from the common centre.‖
25 Jefferson, The Quotable Jefferson, Kaminski, ed., 144. Jefferson most feared the centripetal forces tending toward consolidation: ―When all government,
domestic and foreign, in little as in great things, shall be drawn to Washington as the center of power, it will render powerless the checks provided of one
government on another, and will become as venal and oppressive as the government from which we separated.‖
26 McClellan, Liberty, Order, and Justice, 332.
27 The Rebirth of America, (Arthur S. Demoss Foundation, 1986), 131.
28 Evans, The Theme is Freedom, 150.
29 Morley, Freedom and Federalism, xxiv.
30 Wes A. Riddle, The American Political Tradition (Irvington-on-Hudson, NY: Foundation for Economic Education, 1996), 16.

-22-
plighting one‘s word,‖ were entwined with ―the idea of cooperation, reciprocity, [and] mutuality…‖31
Scholars trace a primordial federalism back to the Old Testament of the Bible, as it is noticeable within the
confederation of tribes and governing covenants of the ancient Israelite commonwealth.32
It is evident that
communities create covenantal relationships with God and with each other. This precludes an all but limited
role for civil authorities. Men may collaborate and ordain covenantal or federal relationships in the body
politic of a republic. Political associations may establish such covenantal relationships with one another and
unite for some common purposes in federation.33
Steven Samson exclaimed, ―The American constitutional
tradition of liberty and self-government is rooted in the biblical concept of the covenant. Sixteenth century
Reformers used biblical and historical models to carefully develop the idea of covenanted self-government
into a pillar of the ecclesiastical and political order, thus giving rise to covenant (or federal) theology and the
idea of political federalism.‖34
Federalism was bequeathed to America via the federal theology of the Puritans.35
Early Americans
made covenants or compacts to found their new civil societies. Behold the Mayflower Compact (1620):
In the name of God, Amen. We whose names are under written…, Having undertaken for the Glory
of God, and Advancement of the Christian Faith, and the Honour of Our King and Country, a
Voyage to plant the first colony in the northern Parts of Virginia; Do these Presents, solemnly and
mutually in the Presence of God and one another, covenant and combine ourselves together into a
civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends
aforesaid…36
Upon the founding of covenant-based polities, individual
actions were subject not only to positive law but also to
transcendent principles that undergirded their covenants.37
―True
law necessarily is rooted in ethical assumptions or norms,‖ noted
Russell Kirk, ―and those ethical principles are derived, in the
beginning at least, from religious convictions.‖38
THE PUBLIC VIRTUE AND FEDERALISM
The Founders esteemed non-tangible, non-quantifiable
considerations such as virtue for establishing and sustaining good
government.39
―A vitiated state of morals, a corrupted public
conscience, is incompatible with freedom,‖ intoned Patrick Henry.
―No free government, or the blessings of liberty, can be preserved
to any people but by a firm adherence to justice, moderation,
temperance, frugality, and virtue; and by a frequent recurrence to
31 David C. Hendrickson, Peace Pact: The Lost World of the American Founding (Lawrence, KS: Univ. Press of Kansas, 2003), 23.
32 William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York, NY: Palgrave MacMillan,
2004), 162.
33 Riddle, The American Political Tradition, 16.
34 Steven A. Samson, ―The Covenant Origins Of The American Polity,‖ Contra Mundum, No. 10 (Winter 1994); Donald S. Lutz, ―From Covenant to
Constitution,‖ Origins of American Constitutionalism (Baton Rouge, LA: Louisiana State Univ., 1988), 23-34.
35 Daniel J. Elazar, ―Our Thoroughly Federal Constitution,‖ How Federal is the Constitution?, Robert A. Goldwin and William A. Schambra, eds.
(Washington, DC: American Enterprise Institute, 1987), 42, 44-45.
36 Ibid., 60-61.
37 Barbara Allen, ―Alexis de Tocqueville on the Covenantal Tradition of American Federal Democracy,‖ Publius: Journalism of Federalism, Vol. 28 No. 2
(Spring 1998).
38 Russell Kirk, Rights and Duties: Reflections on our Conservative Constitution (Washington, DC: Regnery Pub., 1994), 139.
39 Forrest McDonald, Novus Ordo Seclorum (Lawrence, KN: Univ. of Kansas Press, 1985), 70-72, 74-75, 87-89, 90, 93-94, 98, 100, 108-109, 125-126, 134,
144, 165, 173, 178-179, 189-191, 200, 202, 239, 285; Ellis Sandoz, ed., Political Sermons of the American Founding Era: 1730-1805, 2nd ed. 2 Vols. (Indianapolis: Liberty
Fund, 1998). This anthology edited by Ellis Sandoz offers insight into the Christian conceptions of virtue deemed requisite by the founding generation for
sustaining ordered liberty.

-23-
fundamental principles.‖40
A lack of virtue in the body of the people was seen as a culprit for corrupt public
officials. In turn these corrupt agents may impute their moral deformity to the entire social fabric.41
―Americans came to perceive a dynamic relationship between the two great guarantors of liberty—the good
character of the people and the proper structure of the government,‖ noted historian Robert Shallope.
―Each remained susceptible to corruption and once contaminated could easily infect the other. Both must
be carefully tended.‖42
The compact has a moral as well as legal dimension. For as the American federal
structure was held together by the consent and good faith of its members, it stood as a voluntary association
grounded within a transcendent moral order.
In covenantal theory, a higher moral force, namely God, stood as
the witness and guarantor of that compact. By the good faith of elected
officials and appointed officers, the prudence and virtue of the people, a
republic may procure the blessings of providence upon the body politic
and its people.43
Regarding the correlation between virtue and good
government, Madison wrote, ―Republican government presupposes the
existence of these qualities in a higher degree than any other form.‖44
―Public virtue entailed firmness, courage, endurance, industry, frugal living,
strength, and above all, unremitting devotion to the weal of the public‘s
corporate self, the community of virtuous men,‖ opined Forrest
McDonald. ―It was at once individualistic and communal: individualistic
in that no member of the public could be dependent upon any other and
still be reckoned a member of the public; communal in that every man
gave himself totally to the good of the public as a whole. If public virtue
declined, the republic declined, and if declined too far, the republic died.‖45
Prudence, adherence to moral law, and virtue produces good government,
and thus strengthens the affections for the fraternal bonds of Union, as well as its security, prosperity and
vitality. In contrast, history reveals that sustained immorality among a people leads to bad government, and
all its bitter fruits—corruption, demagoguery, economic turmoil and social upheavals—and such a
beleaguered body politic in time collapses into the twin perils of either anarchy or despotism.
Speaking of the threat posed by concentrated power, America‘s patriarch George Washington
described the need for effectual checks and limits: ―A just estimate of that love of power, and proneness to
abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The
necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different
depositaries, and constituting each the guardian of the public weal against invasions by the others, has been
40 Patrick Henry quoted in Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary
Era (Chapel Hill, NC: Univ. of North Carolina Press, 1980; repr. Lanham, MD: Rowman & Littlefield, 2001).
41 Wilhelm Roepke, The Moral Foundations of Civil Society, 2nd ed. (1st ed., 1948; repr. New Brunswick, NJ: Transaction, 1996), 95. ―When we consider
these several dangers and symptoms of decay we get the impression that these all spring a common root, the vanishing sense of responsibility, or perhaps the growing
influence of those who are lacking this feeling… [W]e are faced with the tragic admission of a contemporary English observer, Michael Roberts, that fear of
responsibility has become the specific curse of democratic life. It is unanimously agreed that there is everywhere a lack of a spirit of seriousness on the part of
individuals in their duties towards all bodies—ranging from the family to the government—and in the manner in which they demand their all the more loudly
acclaimed rights, and in the notoriously small number of people who take the trouble to and vote in many democratic countries, which is no less of an evil than
the regrettable diminution of interest in all the deeper questions of public life exhibited by these people. The state of affairs gives all the freer play to the demagogues,
whose irresponsible business it is to appeal to irresponsibility.‖
42 Robert E. Shalhope, John Taylor of Caroline: Pastoral Republican (Columbia, SC: Univ. of South Carolina Press, 1980), 67; Robert E. Shalhope, ―Thomas
Jefferson's Republicanism and Antebellum Southern Thought,‖ The Journal of Southern History, Vol. 42, No. 4 (Nov., 1976), 529-556, viz. 533.
43 Daniel J. Ford, In the Name of God, Amen: Rediscovering Biblical and Historical Covenants (St. Louis, MO: Lex Rex Pub., 2002); Russell Kirk, The American
Cause (Wilmington, DE: ISI, 2002), 35-38; and Rights and Duties: Reflections on our Conservative Constitution (Washington, DC: Regnery Pub., 1994), 143. It should be
noted that Christianity was a foundational source of the law, a matter affirmed by jurists of the formative era in American jurisprudence. To that generation, it was
inconceivable to divorce the law from moral precepts rooted in revealed religious truth, though the church may be separated from the political apparatus.
45 McDonald, Novus Ordo Seclorum, 74-75.
―No free government, or
the blessings of liberty,
can be preserved to any
people but by a firm
adherence to justice,
moderation, temperance,
frugality, and virtue;
and by a frequent
recurrence to
fundamental principles.‖
—PATRICK HENRY

-24-
evinced by experiments ancient and modern; some of them in our country and under our own eyes.‖46
The
framers sought to reconcile the demands for order with the goal of preserving liberty. The Constitution was
framed so as to serve as a restraint upon the authority and powers of both the federal and state
governments. Its framers believed that limiting government to be a necessity given human nature. In the
early American republic, northerners tend to emphasize the need of supporting private virtue to facilitate
and sustain republicanism.47
Southerners digressed somewhat, and stressed the proper structuring of the
polity rather than a focus on cultivating individual virtue through public institutions.48
* * * *
It serves to examine the characteristics of the American constitutional order as originally framed and
established. The republican framework prescribed in the Constitution was built on these elemental pillars:
(1) the rule of law; (2) separation of powers amongst the legislative, executive, and judicial branches of
government; (3) a system of checks and balance among these respective branches; (4) a system of federalism or
division of powers between the various state authorities and the singular federal authority; (5) recognition of
individual rights that antedate government; (6) and the principle of representative republicanism whereby the
people consent to a prescribed mode for popular rule in the administration of government.49
THE RULE OF LAW
FOR ALL THE CONTEMPORARY EXTOL OF THE VIRTUES OF
democracy, it is adherence to the rule of law that is most integral to the
preservation our liberties. The wisdom of the ancients was instructive for
the Founders. ―For law,‖ Cicero said, ―is the highest reason implanted in
nature, which prescribes those things which ought to be done, and forbids
the contrary.‖50
In his classic treatise Politics, Aristotle presaged the
dangers that arise when a government of men supplants reason and law
with the caprice of the powerful. ―[H]e who bids the law rule may be
deemed to bid God and Reason alone rule, but he who bids man rule adds
an element of the beast; for desire is a wild beast, and passion perverts the
minds of rulers, even when they are the best of men.‖51
Benjamin Rush
avowed, ―Where there is no law, there is no liberty; and nothing deserves
the name of law but that which is certain and universal in its operation
upon all the members of the community.‖52 Not only are citizens bound by the law, but the Founders‘ ideal
is that the institutions of free government were to remain within the prescriptive constraints of the rule of
law. ‗A government not of men, but of laws‘ was and still remains the ideal.53
The Founders were not content with mere pieties about the law; they wanted the law fixed and
certain. To the extent the rule of law is eclipsed by the rule of man, we find that tyranny and arbitrary whim
46 George Washington, ―Farewell Address,‖ 19 Sept. 1796, George Washington: A Collection (Indianapolis, IN: Liberty Fund, 1988), 521.
47 D. Grier Stephenson, Campaigns and the Court: The U.S. Supreme Court in Presidential Elections (New York, NY: Columbia Univ. Press, 1999), 35. Justice
William Paterson stated, ―Religion and morality were pleasingly inculcated and enforced, as being necessary to good government, good order, and good laws; for
‗when the righteous are in authority, the people rejoice.‘
48 McDonald, Novus Ordo Seclorum, 75. ―The more a nation depends for liberty on the qualities of individuals,‖ conjectured John Taylor, ―the less likely
it is to retain it. By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.‖
49 Bruce Frohnen, ―Carey on Constitutions, Constitutionalism, and the Tradition,‖ Defending the Republic: Constitutional Morality in a Time of Crisis, Essays in
Honor of George W. Carey (Wilmington, DE: ISI Books, 2008), 22; Riddle, The American Political Tradition.
50 Clarence Carson, The Colonial Experience, 1607-1714 (Wadley, AL: American Textbook Committee, 1983), 16.
51 James J. Kilpatrick and David Mays, et al., eds., We the States: An Anthology of Historic Documents and Commentaries thereon, Expounding the State and Federal
Relationship (Richmond, VA: Virginia Commission on Constitutional Government), xiii
52 Benjamin Rush, ―Letter to David Ramsay,‖ March or April 1788, Letters of Benjamin Rush (Princeton, NJ: Princeton University Press, 1951), 1:454.
53 Ronald M. Peters, The Massachusetts Constitution of 1780: A Social Compact (Amherst, MA: Univ of Massachusetts Press, 1978), 163.
―Where there is no law,
there is no liberty; and
nothing deserves the
name of law but that
which is certain and
universal in its operation
upon all the members of
the community.‖
—BENJAMIN RUSH

-25-
supersedes ordered liberty. ―Under a rule of law,‖ M. Stanton Evans remarked, ―not only are there exterior
limits on the power of the state, but citizens have some definite idea about what the political authorities may
or may not do, and benchmarks by which to measure official conduct; equally important, the citizens have a
definite idea of what they may do, and can plan their lives accordingly.‖54 Samuel Adams‘ legal maxim rings
true: ―In all free states, the constitution is fixed.‖55
A free constitution under law signified a system of
fundamental principles, fixed institutions, a body of basic laws, for the governing of a republic.56 Owing to
‗federalism,‘ the American republic is not a unified rule of law, but rather polyarchal systems of law.57
In principle, ―No man in this country is so high that he is above the law. No officer of the law may
set that law at defiance with impunity. All the officers of the government, from the highest to the lowest,
are creatures of the law, and are bound to obey it.‖58
The Constitution was the embodiment of the founding
generation‘s belief in the rule of law. Eighteenth-century classical
liberalism looked upon the freedom of the individual as the chief political
object. Never intended to govern the people per se, its purpose is to serve
as a standard bearer to govern the governors. The subordination of the
interlocking federal government structure to the rule of law was deemed
vital. Institutions of government were not to be subject to the arbitrary
dictates of men, but to the law, providing for the equitable administration
of justice and the affairs of state. The instrumentality of the Constitution
delineated the scope of authority and power possessed by the federal
power vis-à-vis the States.59 Its written form is intended to place clear
strictures on the limits of power.60
SEPARATION OF POWERS
THE CONSTITUTION ORDAINED THREE DISTINCT BRANCHES of the general government of the
United States, the legislative, executive, and the judicial branches. It is axiomatic in a free government, that
the three branches, namely legislative, executive, and judiciary, shall be separate of one another.61
As
Madison surmised, ―The preservation of liberty requires that the three great departments of power should
be separate and distinct.‖62
With this division of powers between the federal branches, and the added
security of the division of power between the federal power and the states, ―a double security arises,‖ for the
purpose of securing ―the rights of the people.‖63
The doctrine of ‗separation of powers‘ is not peculiar to the American Founders, as it encompassed
the accumulated wisdom of Western political thinkers through the ages. For example Charles de Secondat,
baron de Montesquieu and his classic The Spirit of the Laws states:
When the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty. Again, there is no liberty, if the judiciary be not separated from
the legislative and executive. Were it joined with the legislative, the life and liberty of the subject
54 Evans, The Theme is Freedom, 81.
55 Ibid., 256, 311; Samuel Adams, The Writings of Samuel Adams, ed. Harry A. Cushing, ed. (New York, NY: G.P. Putnam‘s Sons, 1904), 1:170.
56 Russell Kirk, Rights and Duties: Reflections on our Conservative Constitution (Dallas, TX: Spence Pub., 1997), 3.
57 Marshall DeRosa, Redeeming American Democracy: Lessons from the Confederate Constitution (Gretna, LA: Pelican Pub., 2007), 52.
58 United States v. Lee, 106 U.S. 196, 220 (1882).
59 Ibid; Richard Weaver, ―The South and the American Union,‖ The Southern Essays of Richard Weaver (Indianapolis, IN: Liberty Press, 1987), 233.
60 McClellan, Liberty, Order, and Justice, 347-348; Riddle, The American Political Tradition, 30.
61 Gottfried Dietze, The Federalist: A Classic on Federalism and Free Government (Baltimore, MD: John Hopkins Univ. Press, 1999), 157; M.J.C. Vile
Constitutionalism and the Separation of Powers, 2nd Ed. (Indianapolis: IN: Liberty Fund, 1998), 405. ―It is a fundamental maxim of free government, that the three great
departments of power, legislative, executive, and judiciary, shall be essentially distinct and independent, the one of the other. The traditional theory of the separation of
powers sought to divide the functions of government between the three branches of government and to keep the personnel of the three branches separate.‖
63 Ibid., 357.
―The Constitution is not
an instrument for the
government to restrain
the people, it is an
instrument for the people
to restrain the
government…‖
—PATRICK HENRY

-26-
would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to
the executive power, the judge might behave with violence and oppression. There would be an end
to everything, were the same man, or the same body, whether of the nobles or of the people to
exercise those three powers, that of enacting laws, that of executing public resolutions, and of trying
the causes of individuals.64
The Founders built on the wisdom of Montesquieu. But they had no intention of erecting a
Parliamentary system based wholly on the English model.65
The safeguards in the English constitution,
arbitrary executive rule, majoritarian tyranny and manipulation by special interests were found to be lacking.
Prior to the American experiment, few systems in practice had ever sustained a meaningful separation of
powers. Historical lessons from this failure were abundant.
In 1784, Jefferson opined, ―An elective despotism was not the
government we fought for; but one in which the powers of government
should be so divided and balanced among several bodies of magistracy so
that no one could transcend their legal limits without being effectively
checked and restrained by the others.‖66
Madison declared, ―the
accumulation of all powers—legislative, executive, and judiciary—in the
same hands… may be justly pronounced the very definition of tyranny.‖67
Thus the Constitution prescribed the horizontal separation of powers
across three independent branches. The first three distributive articles
delineated the sphere of each respective branch of the federal government,
and the scope of authority and powers vested in the Congress (Article I),
the executive (Article II), and the judiciary (Article III). The ―horizontal
balance‖ among the separate branches was predicated upon the ideal that
each respective branch would be staffed by self-interested individuals who
would jealously guard their own institutional interests against those of the
other branches. The institutional equilibrium sustained by mutual jealousy
gave rise to conditions that in theory thwarted the concentration of power
in any one branch of government.68
The absorption of power in an
absolute sovereign was to be supplanted by a desire for a workable
government, typified by a dispersal of power, and sustained by a spirit of
compromise, cooperation and a desire for consensus.69
Madison lauded the necessity of a ‗separation of powers‘ as he
proposed that government must be checked internally. It did so by sustaining autonomous centers of
power that maintained an institutional interest. This premise emanated from a realistic assessment of
human nature. It was mutual jealousy of institutional prerogatives that thwarted the concentration of power
by setting up counter-poises within the government itself.70
―[A] mere demarcation on parchment of the
constitutional limits of the federal department is not a sufficient guard against those encroachments which
lead to a tyrannical concentration of all powers of government in the same hands.‖71
Madison remarked in
64 Montesquieu quoted in M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd Ed. (Indianapolis: IN: Liberty Fund, 1998), 99.
65 Ibid., 194, 405. Vile observed, ―The separation of powers, however, upon which Montesquieu had placed so much stress, became an essential article
of faith of the men of 1789.‖ He noted, ―many commentators have rejected the idea that the British government embodies a separation of powers…‖ evident in
its executive‘s efforts to stir the legislature by patronage.
66 Thomas Jefferson quoted in David N. Mayer, The Constitutional Thought of Thomas Jefferson, (Charlottesville, VA: Univ. of Virginia Press, 1994), 62;
Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:163
67 Hamilton, ―Federalist #47,‖ The Federalist Papers, Wright, ed., 336; Watkins, Reclaiming the American Revolution, 141.
68 Madison, ―Federalist #51,‖ The Federalist Papers, Wright, ed., 356-358.
69 Keith Whittington, ―Constitutionalism,‖ American Conservatism: An Encyclopedia. Bruce Frohnen, Jeremy Beer, and Jeffrey O. Nelson, eds.
(Wilmington, DE: ISI Books, 2006), 192-193.
71 Ibid., Madison, ―Federalist #48,‖ 347; Dietze, The Federalist, A Classic on Federalism and Free Government, 127;
―To preserve the
republican form and
principles of our
Constitution and cleave
to the salutary
distribution of powers
which that has
established. These are
the two sheet anchors of
our Union. If driven
from either, we shall be
in danger of
foundering.‖
—THOMAS
JEFFERSON, JUNE
12, 1823

-27-
Federalist #51:
But the great security against a gradual concentration of the several powers in the same department,
consists in giving to those who administer each department the necessary constitutional means and
personal motives to resist encroachments of the others. The provision for defense must in this, as in
all other cases, be made commensurate to the danger of attack. Ambition must be made to
counteract ambition. The interest of the man must be connected with the constitutional rights of the
place. It may be a reflection on human nature, that such devices should be necessary to control the
abuses of government… In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control the governed; and in the
next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on
the government; but experience has taught mankind the necessity of auxiliary precautions.72
The security of the people rested on the preservation of the separation of powers. ―[T]o preserve
the republican form and principles of our Constitution and [to] cleave to the salutary distribution of powers
which that [the Constitution] has established… are the two sheet anchors of our Union. If driven from
either, we shall be in danger of foundering.‖73
Thomas Jefferson sought to bring the separation of powers
to fruition, emphasizing a coordinate view of the distinct branches of the federal government. ―My
construction of the Constitution is... that each department is truly independent of the others and has an
equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action;
and especially where it is to act ultimately and without appeal.‖74
A SYSTEM OF CHECKS AND BALANCES
THE SEPARATION OF POWERS WAS NEVER INTENDED TO BE AN ABSOLUTE. As Madison echoed
Montesquieu, he posited no ‗pure separation of powers‘ was contended for by the framers. Rather a
―degree of separation‖ was deemed ―essential to a free government, can never in practice, be duly
maintained.‖ The Founders sought to reconcile a ‗separation of powers‘ with an overlapping series of
‗checks and balances‘ in sort of a hybrid system that became a pillar of American constitutionalism.75
The
free constitutional order avoids tyranny of any one branch over the other by an arrangement of checks and
balances, serving as a constitutional mechanism for the promotion of individual liberty.
The interest of the man must be connected with the constitutional rights of the place. It may be a
reflection on human nature, that such devices should be necessary to control the abuses of
government. But what is government itself, but the greatest of all reflections on human nature? If
men were angels, no government would be necessary. If angels were to govern men, neither external
nor internal controls on government would be necessary. In framing a government which is to be
administered by men over men, the great difficulty lies in this: you must first enable the government
to control the governed; and in the next place oblige it to control itself. A dependence on the people
is, no doubt, the primary control on the government; but experience has taught mankind the
necessity of auxiliary precautions.76
To thwart the concentration of power in an institutional symmetry effectuated by law, ‗ambition
72 Ibid., Madison, ―Federalist #51,‖ 356.
73 Thomas Jefferson to William Johnson, June 12, 1823, The Writings of Thomas Jefferson, Richard Holland Johnston, ed. (Washington, DC: Thomas
Jefferson Memorial Association of the United States, 1907), 15:452.
74 Ibid., Thomas Jefferson to Spencer Roane, 1819. 15:214; H.L. Cheek, Jr., Calhoun and Popular Rule: The Political Theory of Disquisition and Discourse
(Columbia, MO: Univ. Press of Missouri, 2001), 150. ―The general government stood in relation to the state governments as ‗co-ordinate governments‘ that
provided a ‗partition‘ of authority: ‗The government of the United States is, in each State, the co-ordinate of its separate government; and taken together, the two
make the entire government of each, and of all the States. On the preservation of this peculiar and important division of power, depend the preservation of all the
others, and the equilibrium of the entire system.‘‖
75 Dietze, The Federalist, A Classic on Federalism and Free Government, 127.
76 Madison, ―Federalist #51,‖ BBB.

-28-
must be made to counter ambition.‘77
Jurist James McClellan opined, ―The check and balance system is
probably the most ingenious and carefully crafted feature of the American Constitution. Like the principle
of federalism, it permeates the document.‖78
Through the edifice of the Constitution, an elaborate system
of checks and balances is prescribed to distribute and check the concentration of power. The legislative,
executive, and judicial branches each exercise a constitutional check against the other branches. With their
skepticism of consolidated power, the Founders wisely provided auxiliary precautions.79
As Federalist #73
noted, each branch is furnished ―with constitutional arms‖ for its own ―effectual powers of self-defense.‖
These checks act to counter the ascendancy of any one branch over the other in practice.80
Americans, even post-1783, looked with affinity upon the English constitution filtered through the
settlement of 1688-89.81
It was a mixed constitution that vested sovereignty in Parliament. It was possessed
of a series of checks and balances so that ―all the parts of it form a mutual check upon each other.‖82
King
and kingdom, lord and commons, and indeed all constituencies of government were represented by
Parliament. Circa 1766, Blackstone boasted that ―all parts‖ of the English constitution‖:
Form a mutual check upon each other. In the legislature, the people are a check upon the nobility,
and the nobility a check upon the people; … while the king is a check upon both, which preserves
the executive power from encroachments. And this very executive power is again checked, and kept
within due bounds by two houses… Like three distinct powers in mechanics, they jointly impel the
machine of government in a direction different from what either, enacting by themselves, would have
done; but at the same time in a direction partaking, and formed out of all; a direction which
constitutes the true line of the liberty and happiness of the community.83
John Adams spoke with approbation of the English model:
The checks and balances of republican governments have been in some degree adopted at the courts
of princes. By the erection of various tribunals, to register the laws, and exercise the judicial power—
by indulging the petitions and remonstrances of subjects, until by habit they are regarded as rights—a
control has been established over ministers of state, and the royal councils, which, in some degree,
approaches the spirit of republics.84
The internal checks of the English constitution did not check the whole since Parliament in theory
embodied the whole.85
In contrast to the English model, the framers wanted to put the ramparts around
liberty and provide for an effectual separation of powers. They prescribed the limits of power by a written
constitution, through a harmonious co-ordinate federal system that diffused both authority and power.86
They thought the English model to be deficient as it embodied an unhealthy ―fusion‖ of the legislative and
77 Roger Pilon, ―Madison‘s Constitutional Vision: The Legacy of Enumerated Powers,‖ James Madison and the Future of Limited Government (Washington,
DC: Cato Institute, 2002), 29; M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd Ed. (Indianapolis: IN: Liberty Fund, 1998), 17.
79 Andrew Napolitano, The Constitution in Exile: How the Federal Government Has Seized Power By Rewriting the Supreme Law of the Land (Nashville, TN:
Nelson Current, 2006), 8, 37; Riddle, The American Political Tradition, 13.
80 Hamilton, ―Federalist #73,‖ The Federalist Papers, Wright, ed., 468-469.
81 McClellan, Liberty, Order, and Justice, 22. ―The American Constitution is distinctively English,‖ posited Sir Henry Maine in his book Popular Government
(1885).
82 Daniel J. Boorstin, The Mysterious Science of the Law: An Essay on Blackstone‘s Commentaries (Chicago, IL: Univ. of Chicago Press, 1996), 159.
83 William Blackstone, Commentaries on the Laws of England, 4 vols. (1st ed. 1765-1769; repr. Chicago: Univ. of Chicago Press, 1979), 1:150-51.
84 John Adams, ―A Defense of the Constitutions of the United States of America, Against the Attack of M. Turgot, in his letter to Dr. Price,‖ 22
March, 1778, The Political Writings of John Adams, George W. Carey, ed. (Washington, DC: Regnery, 2000), 108.
85 McDonald, Novus Ordo Seclorum, 81.
86 Riddle, The American Political Tradition, 9, 18; Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition (New York, NY:
Cambridge Univ. Press, 2007). ―The textual basis – the necessarily written nature – of American constitutionalism was a crucial characteristic of the process of
establishing governments. This written feature remained a hallmark of American constitutions.‖; St. George Tucker, View of the Constitution of the United States, Clyde
Wilson, ed. (Indianapolis, IN: Liberty Fund, 1999), 33. ―It is the proper object of a written constitution not only to restrain the several branches of the
government, viz. the legislature, executive, and judiciary departments, within their proper limits, respectively, but to prohibit the branches, united, from any
attempt to invade that portion of the sovereign power which the people have not delegated to their public functionaries and agents, but have reserved, unalienably
to themselves. A written constitution has moreover the peculiar advantage of serving as a beacon to apprise the people when their rights and liberties are invaded,
or in danger.‖; Gordon S. Wood, The Creation of the American Republic 1776-1787 (Chapel Hill, NC: Univ. of North Carolina Press, 1969), 152, 292-293, 449, 451-
453, 550.

-29-
executive power. Walter Bagehot described the nineteenth century English constitution:
This fusion of the legislative and executive functions may, to those who have not much considered it
seem but a dry and small matter, to be the latent essence and effectual secret of the English
constitution; but we can only judge of its real importance by looking at a few of its principal effects,
and contrasting it very shortly with its great competitor, which seems likely, unless care be taken, to
outstrip it in the progress of the world. The competitor is the Presidential system. The characteristic
of it is that the President is elected from the people by one process, and the House of
Representatives by another. The independence of the legislative and executive powers is the specific
quality of Presidential Government, just as their fusion and combination is the precise principle of
Cabinet Government.87
The American model entailed a number of ―auxiliary precautions.‖88
Each of the three branches is
nominally independent of one another, and each branch possessed a series of constitutional safeguards (i.e.,
checks and balances) to counter the ambition of the other branches. Congress is divided between a House,
in which representation is based on population, and the Senate, in which representation in each state is
equally represented.89
The President is authorized to veto bills passed by the Congress,90
and the Congress,
in turn, can override the presidential veto with a concurrence of a two-thirds majority in both houses.91
The
President is vested with the authority to appoint judges, ambassadors, and other public officers,92
but the
Senate must lend its assent and confirm those appointments.93
The President has the authority to negotiate
Treaties,94
but with the ―advice and consent‖ of the U.S Senate and their concurrence for approval of any
Treaties.95
The President is commander-in-chief of the armed services in time of war,96
but Congress is
vested with the exclusive authority to constitutionally declare war and inaugurate war.97
The staggered terms
of the President, Senators, and Representatives serve as a check against the concentration of power and
majoritarian tyranny.98
The President cannot influence the Congress in the manner of the British ministerial
system through patronage.99
Taken together, these provisions created a sense of competition and mutuality
between the Congress and the Presidency by thwarting the concentration of power, allowing for mutual
restraints of one branch upon the other.
THE DIVISION OF FEDERAL AND STATE AUTHORITY
ATTENDANT TO THE SYSTEM OF CHECKS AND BALANCES, the Founders held that the maintenance of
the sovereign states to be requisite to sustaining ordered liberty. They envisioned a division of authority and
power as the means of establishing and sustaining ordered liberty.100
―In the compound republic of
America,‖ observed Madison, delegated power ―is first divided between two distinct governments, and then
the portion allotted to each, subdivided among distinct and separate departments. Hence a double security
arises for the rights of the people. The different governments will controul each other; at the same time that
each will be controuled by itself.‖101
The Founders sought to fortify a vertical axis of balance between the
87 Walter Bagehot, The English Constitution and Other Political Essays (New York, NY: D. Appleton & Co., 1877), 47.
88 James Madison, ―Federalist #51,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 355-359.
89 U.S. Const., Art. I, § 2 and § 3.
90 U.S. Const., Art. I, § 7. Cl. 3.
91 U.S. Const. Art. I. § 2. Cl. 2.
92 U.S. Const., Art. II. § 2. Cl. 1.
93 U.S. Const., Art. II. § 2. Cl. 1.
94 U.S. Const., Art. II, § 2. Cl. 2
95 Ibid.
96 U.S. Const., Art. II. § 2. Cl. 1.
97 U.S. Const., Art. I. § 8, Cl. 11.
98 Edwin Meese, III, David F. Forte, Matthew Spalding, eds., The Heritage Guide to the Constitution (Washington, DC: Heritage Foundation, 2005), 62-64.
99 Thomas Prentice Kettell, ed., The United States Magazine and Democratic Review (New York, NY: Langtree and O'Sullivan, 1848), 22:206.
100 McClellan, Liberty, Order, and Justice, 302-305, 327-341.
101 James Madison, ―Federalist #51,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 357

-30-
singular federal authority and the authorities of the several states.102
―This balance between the national and
State governments… is of the utmost importance,‖ observed Madison. ―It forms a double security for the
people.‖103
The counter-intuitive genius in the Founders‘ design of multiple governments is the dispersal
and diffusion of both authority and power. This served to enhance individual liberty rather than impede it.
Scholars refer to the original constitutional framework as a system of ‗dual federalism,‘ alluding to
the twofold sovereign character of the federal government in its respective sphere, and that of the several
states each in their sovereign capacity. This system of dual sovereignties, each with its own particular field
of action, sanctioned the federal government with tasks that were national in scope: defense, diplomacy,
foreign and interstate commerce. Concurrently the states held to the broad regulation of domestic affairs.104
Jefferson‘s Inaugural stated republican principles, as ―the support of the state governments in all
their rights, as the most competent administrations for our domestic concerns, & the surest bulwarks against
anti-republican tendencies,‖ on the one hand, and ―the preservation of the General government, in its whole
constitutional vigour, as the sheet anchor of our peace at home, & safety abroad.‖ This was the ―true
theory‖ of the Constitution, and values antithetical to these must be reversed and opposed.105
Considered
jointly, these precepts reveal the groundwork of the constitutional system: the simultaneous attempt to
balance the centrifugal and centripetal forces innate within the American federal polity.106
The character of the Union was revealed in the limited delegation of powers to the general
government of the United States, specifically the powers delegated to Congress under Article 1, Section 8 of
the U.S. Constitution.107
Charles Pinckney extolled this unique balance of national and state power during
the South Carolina ratification debates:
It had been an opinion long established, that a republican form of government suited only the affairs
of a small state; which opinion is founded in the consideration, that unless the people in every district
of the empire be admitted to a share in the national representation, the government is not to them as
a republic… [Much of the objection] would be done away by the continuance of a federal republic,
which, distributing the country into districts, or states, of a commodious extent, and leaving to each
state its internal legislation, reserves unto a superintending government the adjustment of their
general claims, the complete direction of the common force and treasure of the empire.108
This federal-state balance is reflected in the Tenth Amendment. These tenets surmise ‗dual
federalism‘:
a) The federal government possesses a delegation of enumerated powers
b) The federal government is obligated to a limited set of constitutional purposes
c) The federal government and each State are sovereign within their respective sphere of
operations
d) The relationship between federal government and the states is best summed up as an
102 Riddle, The American Political Tradition, 14-20.
103 Raoul Berger, Federalism: The Founders‘ Design (Norman, OK: Univ. Oklahoma Press, 1987), 46; James Madison, ―Federalist #51,‖ The Federalist
Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 357.
104 Evans, The Theme is Freedom, 204; Frederick D. Drake and Lynn R. Nelson, eds., States‘ Rights and American Federalism: A Documentary History
(Westport, CT: Greenwood Press, 1999), xx. ―Proponents of states‘ rights hold that the Constitution is a compact, or an agreement, between the states and the
federal government. Both states and the national government are supreme within their own sphere. By no means are state governments subordinate to the
national government. Advocates of dual federalism draw on the Tenth Amendment to the Constitution. They argue that the national government cannot ‗invade‘
the power that is reserved to the states.‖; Harry N. Scheiber, ―Dual Federalism,‖ Oxford Companion to the Supreme Court, Kermit L. Hall, ed. (New York, NY: Oxford
Univ. Press, 1992), 236; James Q. Wilson, American Government, 9th Ed. Abridged. (Boston, MA: Wadsworth, 2009), 77-78.
105 Mayer, The Constitutional Thought of Thomas Jefferson, 208.
106 Ibid., 185.
107 Ibid., 71; U.S. Const., Art. I, § 8, Amd. X.; Evans, The Theme is Freedom, 265; McClellan, Liberty, Order, and Justice, 425.
108 Jonathan Eliot, ed., The Debates of the Several State Conventions, 2nd. Ed. (1880, reprint ed., Salem, NH: 1987), 4:262; Tara Ross, Enlightened Democracy:
The Case for the Electoral College (Los Angeles, CA: World Ahead Pub., 2005), 54.

-31-
ingrained tension rather than harmonious cooperation109
The independence afforded to the States under the Constitution was not absolute, as that instrument
ordained several express limitations upon state power. The constraints placed upon state power were
intended in part to uphold economic liberty.110
Article IV established that the ―Citizens of each State shall
be entitled to all Privileges and Immunities of Citizens in the several States.‖ Article I, Section 10, set forth
added constraints that Madison described: ―Bills of attainder, ex-post-facto laws, and laws impairing the
obligations of contracts are contrary to the first principles of the social compact.‖ Their express provision
in the Constitution provides ―a constitutional bulwark of personal security and private rights.‖111
INDIVIDUAL RIGHTS
THE FOUNDERS ESTEEMED INDIVIDUAL LIBERTY and the Rights of the Englishmen. Jefferson
wrote in the Declaration of Independence, that ―men are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness.‖112
George Mason, in the Virginia Declaration of Rights, wrote, ―That all men
are born equally free and independent, and have certain inherent natural
Rights… among which are the Enjoyment of Life and Liberty, with the
Means of acquiring and possessing Property, and pursuing and obtaining
Happiness and Safety.‖113
Hamilton declared, ―The sacred rights of
mankind are not to be rummaged for among old parchments or musty
records. They are written, as with a sunbeam, in the whole volume of
human nature, by the hand of the divinity itself; and can never be
erased.‖114
The basis for republicanism is individual liberty. As Jefferson
noted, ―It is to secure our rights that we resort to government at all.‖115
Americans naturally looked first to their states and communities as
the guardian protectors of these sacred rights.116
The modern fixation with
nationally guaranteed individual rights obscures the Founders‘ concern
with the rights of the community. In the view of the Founders, liberty was
best preserved by negative limitations upon the exercise of power rather
than a positive grant of rights.117
The Ninth Amendment provides that ―the
enumeration in the Constitution, of certain rights, shall not be construed
109 Frederick D. Drake and Lynn R. Nelson, eds., States‘ Rights and American Federalism: A Documentary History (Westport, CT: Greenwood Press, 1999),
xx.
110 Thomas Dilorenzo, How Capitalism Saved America: The Untold Story of Our Country From the Pilgrims to the Present (New York, NY: Crown Forum, 2004),
81; Robert H. Bork, Federalism and Federal Regulation: The Case of Product Labeling (Washington, DC: Washington Legal Foundation, 1991), 4. As Robert Bork
observed, ―one of the major reasons for holding the Philadelphia Convention was the states' interference with national trade.‖
111 James Madison, ―Federalist #44,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 319
112 Thomas Jefferson, et al., ―The Declaration of Independence,‖ The Constitution of the United States and the Declaration of Independence, Roger Pilon, ed.
(Washington, DC: Cato Institute).
113 George Mason, ―Virginia Declaration of Rights,‖ June 12, 1776, The Founders‘ Constitution, Philip B. Kurland and Ralph Lerner, eds. (Chicago, IL:
Univ. of Chicago Press, 1987, reprint Indianapolis, IN: Liberty Fund), 2:446-447.
114 Ron Chernow, Alexander Hamilton (New York, NY: Penguin Press, 2004), 60.
115 Thomas Jefferson to Francois D'Ivernois, 1795. FE 7:4
116 Glen Gorton, What Would They Say? The Founding Fathers on Current Issues (Lafeyette, LA: Huntington House Publishers, 1998), 69; Melancton
Smith,1788, The Debates and Proceedings of the Constitutional Convention of the State of New York (New York, NY: Vassar Bros. Inst., 1905), 95. Melancton Smith said,
―We all agree that a general government is necessary: But it ought not to go so far as to destroy the authority of the members… The state constitutions should be
the guardians of our domestic rights and interests; and should be both the support and the check of the federal government.‖
117 Barry Alan Shain, ―Liberty and License: The American Founding and the Western Conception of Freedom,‖ Vital Remnants: America‘s Founding and
the Western Tradition. Gary L. Gregg II, ed. (Wilmington, DE: ISI Books, 1999), 212. ―Eighteenth-century Americans‘ understanding of liberty did not include
autonomous individual freedom; but rather, in all but one of its various forms, it followed the traditional Western understanding of a voluntary submission to a life
of righteousness that accorded with universal moral standards and the authoritative interpretative capacity of congregation and community—if you will, an
ordered and communal sense of liberty.‖; Clyde Wilson, ―Citizens or Subjects?,‖ From Union to Empire: Essays in the Jeffersonian Tradition (Columbia, SC: Foundation
for American Education, 2003), 18-19.
―That all men are born
equally free and
independent, and have
certain inherent natural
Rights… among which
are the Enjoyment of
Life and Liberty, with
the Means of acquiring
and possessing Property,
and pursuing and
obtaining Happiness
and Safety.‖
—GEORGE MASON

-32-
to deny or disparage others retained by the people.‖118
By declining to nationalize unenumerated rights, the
Founders left the protection of such rights to the people of the several states.119
As Forrest McDonald
declared ―the liberty of the individual [was] subsumed in the freedom or independence of his political
community.‖120
The states possess their own distinct state constitutions, court systems, and legal tradition
rooted in English common law, which antedate the ratification of the Constitution. States were reckoned to
govern themselves differently since their people, customs, and circumstances differed. Keeping government
close to home is consonant with liberty; and this custom is reinforced by the American colonial-
revolutionary experience.121
Commensurate with the Founders‘ vision, the States were the most
integral ingredient to the federal polity. Louis Henkin remarked ―the
Constitution said remarkably little about rights‖ since the federal
government ―was not to be the primary government… governance was left
principally to the States.‖122
The original Constitution properly construed,
does not affirm any positive grant of rights at all. Its salient point was that it
embodies a limitation upon federal power by virtue of a limited delegation of
power.123
The people grant power to the institutions of government,
entrusting it with only certain powers requisite for its operation.124
The
Rights of the Englishman antedate the Constitution; and that instrument is
not presumed to grant people their rights. The federal Bill of Rights opens
with the phraseology, ―Congress shall make no law…‖—itself a negation on
the exercise of power. Hence one of the duties of the federal authority was
to refrain from interference with individual rights and leave their
preservation to the established communities among the several states.125
Jurist Michael W. McConnell remarked the ―framers of the Constitution and
the Bill of Rights believed that state governments were, in some vital respects, safer repositories over
118 U.S. Const. Amd. IX.
119 Marshall DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control (New Brunswick, NY:
Transaction Pub., 1996).; Forrest McDonald, States‘ Rights and the Union: Imperium in Imperio, 1776-1876 (Lawrence, KS: Univ. Press of Kansas, 2000), 24.
120 McDonald, Novus Ordo Seclorum, 71; Donald S. Lutz, Popular Consent and Popular Control (Baton Rouge, LA: Louisiana State Univ. Press, 1979), 224.
―[A]ccording to historian Donald S. Lutz, ‗community interests were considered superior to those of individuals.‘ The ‗good of the community‘ allowed for the
abridgement of rights for community purposes.‖
121 Riddle, The American Political Tradition, 19.
122 Louis Henkin, ―Human Dignity and Constitutional Rights,‖ The Constitution of Rights: Human Dignity and American Values, Michael J. Mayer and
William A. Parents eds. (Ithaca, NY: Cornell Univ. Press, 1992), 210, 213-214. ―The framer‘s political theory was immediately concerned with organization, not
individuals… with principles of power allocation,‖ remarked Robert Nagel. But modern jurists have a proclivity inverting ―the priorities of the framers‖ and
embrace ―an obsessive concern for using the Constitution to protect individual rights.‖; Robert Nagel, ―Federalism as a Fundamental Value: National League of
Cities in Perspective,‖ 1981 SuCt. Rev. 81, 82, 88; Charles L. Black, Jr., Structure and Relationship in Constitutional Law (Baton Rouge, LA: Louisiana State Univ. Press,
1969), 42. Federalist #38 stated some critics ―concur[red] in the absolute necessity of a bill of rights, but contend[ed] that it ought to be declaratory, not of personal
rights of individuals, but of rights reserved to the States in their political capacities.‖ Hamilton stressed in Federalist #84 that ―one of object of a bill of rights [is] to
declare and specify the political privileges of the citizens in the structure and administration of the government.‖
123 U.S. v. Cruikshank, 92 U.S. 542, 551 (1876). ―The government of the United States is one of delegated powers alone. Its authority is defined… by
the Constitution.‖
124 Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 136-137 (1866) (opinion of C.J.) ―[N]o department of the government of the United States—neither [the]
President, nor the Congress, nor the Courts—possess any power not given by the Constitution.‖
125 Charles W. Baird, ―I have a right!,‖ The Clichés of Politics, Mark Spangler, ed. (Irvington-on-Hudson, NY: Found. for Econ. Educ., 1994), 9-11; Barry
Alan Shain, ―Liberty and License: The American Founding and the Western Conception of Freedom,‖ Vital Remnants: America‘s Founding and the Western Tradition.
Gary L. Gregg II, ed. (Wilmington, DE: ISI Books, 1999), 212-213; E. Robert Statham, Jr., ―The Crisis of the American Political Tradition,‖ Bruce Frohnen and
Kenneth L. Grasso, ed., Defending the Republic: Constitutional Morality in a Time of Crisis (Wilmington, DE: ISI, 2008), 250; ―[T]he Constitution preserves negative
liberty (liberty from tyranny and anarchy0 but does not provide a political-philosophical explication of constitutional justice in the positive sense (freedom ―to‖);
Clyde Wilson, From Union to Empire: Essays in the Jeffersonian Tradition (Columbia, SC: Found. for Amer. Education, 2003), 111. ―The Constitution, does not give any
rights at all. The most essential point of a written constitution is that it is a limitation of government. The people establish institutions and give up to them certain
powers, and no more. The people establish institutions and give up to them certain powers, and no more. The government is not presumed to give the people
their rights; and indeed the Bill of Rights is cast in a negative form: ‗The Congress shall make no law…‘ That is, our rights are not a grant from the federal
government, and the chief duty of the federal government is to refrain from interfering with them and leave to our real communities their day-to-day definition
and application.‖
―The state constitutions
should be the guardians
of our domestic rights
and interests; and
should be both the
support and the check of
the federal government.‖
—MELANCTON
SMITH, NEW YORK
RATIFYING
CONVENTION, 1788

-33-
individual liberties than the federal government.‖126
Peripheral to their concern for individual liberty, the Founders were keen on safeguarding of
economic liberty, and sustaining a commercial republic conducive to the prosperity of her citizens.
Experience under the Articles of Confederation made apparent the maladministration by the various states,
which had enacted noxious protectionist legislation and tariffs against their sister states. This economic
interference proved detrimental to free-flow of interstate commerce and preserving the bond of amity so
integral to the Union‘s continuance.127
State legislatures were also prone to assorted mischief in the
economy under the Confederation as they passed statutes that impaired the obligation of contracts, reversed
court judgments, suspended their Senates, annulled contracts, and printed their own fiat money. Some
newly independent states confiscated the property of former British loyalists in violation of the Treaty of
Paris. One state enacted statutes that made the title-deed to useless pine barons as legal tender for the
payment of debts. Economic prosperity suffered as result of such mischief.128
The states had become in
Hamilton‘s words, ―wretched nurseries of unceasing discord,‖ and bastions of ―elective despotism.‖129
In response to these imprudent measures, the framers sought to restrain the states from misguided
intervention in the economy to ensure the free flow of goods and services. The Union thus became a free
trade pact under the Constitution. Hence Congress is vested with the power to ―regulate‖ interstate
commerce thus making commerce ―regular‖ throughout the Union.130
States are prohibited from impairing
obligations of contracts, as the Contract Clause prohibited laws that abridged the freedom of contract (―No
state shall…pass any…law impairing the Obligations of Contracts.‖) This freedom provided a
constitutional bar against impeding the sanctity of contracts, which led to the stability and prosperity of
American commerce.131
THE REPRESENTATIVE REPUBLICAN FOUNDATION
THE FOUNDERS WERE REPUBLICANS and committed to a system of
governance that found its basis on ‗the consent of the governed.‘ Classical
republican theory holds that the people are the sovereigns and the
authority to exercise the power of government emanates from the
people.132
Hamilton held ―the origin of all civil government, justly
established, must be a voluntary compact between the rulers and the
ruled.‖133
Madison held ―the people are the only legitimate fountain of
power, and it is from them that the constitutional charter… is
derived…‖134
The Declaration of Independence stated, ―…Governments
are instituted among Men, deriving their just powers from the consent of
the governed...‖135
This idea of ‗rule by consent of the governed‘ had
126 Michael W. McConnell, Constitution, Democracy and State Power: The Institutions of Justice, Joshua Cohen, Archon Fung, eds. 4 Vols. (Northampton, MA:
Edward Elgar Pub., 1996), 1:351; Michael W. McConnell, ―Book Review,‖ 54 U. Chi. L. Rev. 1484, 1505-1506 (1987).
127 U.S. Const., Art. I. § 8. Cl. 1; Thomas Dilorenzo, How Capitalism Saved America: The Untold Story of Our Country From the Pilgrims to the Present (New
York, NY: Crown Forum, 2004), 81.
128 McDonald, States‘ Rights and the Union, 17; Charles F. Hobson, ―The Negative on State Laws: James Madison, the Constitution, and the Crisis of
Republican Government,‖ William & Mary Quarterly, Vol. 36, No. 2., Third Series (April 1979), 222.
129 Ibid., McDonald; Gairdner, The Trouble With Democracy, 32.
130 The Declaration of Independence and the Constitution of the United States of America, Roger Pilon, ed. (Washington, DC: Cato Institute, 1998), 5.
131 U.S. Const., Art. I. § 8. Cl. 1; Thomas Dilorenzo, How Capitalism Saved America: The Untold Story of Our Country From the Pilgrims to the Present, (New
York, NY: Crown Forum, 2004), 81.
132 Hamilton, ―Federalist #84,‖ The Federalist Papers, Wright, ed., 534.
133 Alexander Hamilton quoted in John Phillip Reid, The Authority of Rights: Constitutional History of the American Revolution, (Madison, WI: Univ. of
Wisconsin Press, 1986), 132.
134 Madison, ―Federalist #40,‖ The Federalist Papers, Wright, ed., 348; Berger, Federalism, 30.
135 Thomas Jefferson, ―The Declaration of Independence,‖ 4 July, 1776, The American Republic: Primary Sources, Bruce Frohnen, ed. (Indianapolis, IN:
Liberty Fund, 2003), 189-191, viz. 189.
―As the people are the
only legitimate fountain
of power, and it is from
them that the
constitutional charter,
under which the several
branches of government
hold their power, is
derived…‖
—JAMES MADISON

-34-
ancient roots, and applied to monarchies as well as republics. The Scottish Declaration of Arbroath (1320)
proclaimed that King Robert the Bruce owing to ―Divine Providence‖ along with ―the due consent and
assent of us all, have made him our prince and king.‖ Even monarchies sought to find legitimacy in rule
acknowledged by consent of the governed.136
As the federal government is theoretically one of limited powers entrusted to representatives and
their appointees for specific and defined purposes, the people delegate only so much authority and power to
government as necessary for sustaining ordered liberty.137
Madison defined a ―republic‖ as ―a government
which derives all its powers directly or indirectly from the great body of the people, and is administered by
persons holding their offices during pleasure, for a limited period, or during good behavior.‖ Disavowing
oligarchy, he added,
It is ESSENTIAL to such a government that it be derived from the great body of the society, not
from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles,
exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans,
and claim for their government the honorable title of republic. It is SUFFICIENT for such a
government that the persons administering it be appointed, either directly or indirectly, by the
people; and that they hold their appointments by either of the tenures just specified…138
This republic would be representative in both form and function without the Old World vestiges of
monarchy or hereditary aristocracy.139
This representative government stood contrary to a direct
democracy.140
James Madison commented on the mischief posed by democracy:
[A] pure democracy… can admit of no cure for the mischiefs of faction. A common passion or
interest will, in almost every case, be felt by a majority of the whole… there is nothing to check the
inducements to sacrifice the weaker party or an obnoxious individual… Hence it is that such
democracies have ever been spectacles of turbulence and contention; have ever been found
incompatible with personal security or the rights of property; and have in general been as short in
their lives as they have been violent in their deaths.141
If left unchecked a democracy would prove itself inimical to liberty.
‘CONSENT OF THE GOVERNED’
―Government derives its just authority from the consent of the governed.‖142
It is from the
authority of the people that the legitimate delegation of power flows to government. The keystone of rule
by consent is integral to the federal compact.143
It is the instrumentality of the state governments through
their ratifying assent to the Constitution, and adherence to the laws of the Union, who manifest the consent
of their respective peoples.
St. George Tucker (1780 – 1848), the protégé of George Wythe and later professor of law at the
College of William and Mary enunciated the compact doctrine with remarkable clarity. His View of the
136 ―The Declaration of Arbroath,‖ April 6, 1320, The Avalon Project at Yale Law School, 28 May 2007.
<http://www.yale.edu/lawweb/avalon/eurodocs/arbroath_1320.htm>
137 Kirk, The American Cause, 68-69.
139 McDonald, Novus Ordo Seclorum, 5. ―[T]he Framers shared the commitment in the abstract, they were far from agreed as to what republicanism
mean, apart from the absence of hereditary monarchy and hereditary aristocracy.‖
140 Thomas Jefferson, ―Letter to Isaac H. Tiffany,‖ 1816, The Writings of Thomas Jefferson, Memorial Edition, Andrew Lipscomb and Albert Ellergy Bergh,
eds. (Washington, DC: Thomas Jefferson Mem. Assoc., 1905), Vol. 15, 65.
142 Tucker, View of the Constitution of the United States, 123.
143 Jeff Brauch, Is Higher Law Common Law? (Littleton, CO: Rothman, 1999), 42. Blackstone observed, ―The language of a compact is, ‗I will, or will not,
do this;‘ that of a law is, ‗thou shalt, or shalt not, do it.‘ It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law;
but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we
are obliged to act, without ourselves determining or promising any thing at all.‖

-35-
Constitution of the United States offered a forthright exposition of the character of the American government.144
He observed that free government must ―be founded in general consent and compact, the most natural and
the only legitimate method of constituting a civil power.‖145
He discerned the compact element within the
American constitutional order:
It is a compact freely, voluntarily, and solemnly entered into by the several states, and ratified by the
people thereof, respectively: freely, there being neither external, nor internal force, or violence to
influence, or promote the measure; the United States being at peace with all the world, and in perfect
tranquility in each state: voluntarily, because the measure had its commencement in the spontaneous
acts of the state-legislatures, prompted by a due sense of the necessity of some change in the existing
confederation: and, solemnly, as having been discussed, not only by the general convention who
proposed, and framed it; but afterwards in the legislatures of the several states, and finally, in the
conventions of all the states, by whom it was adopted and ratified.146
Hence the continuance of the traditional ―confederated‖ union depends upon the good faith or
voluntary compliance of its member states. As Hamilton noted in reference to the treatise of Baron de
Montesquieu, The Spirit of the Laws, ―The confederacy may be dissolved, and the confederates preserve their
sovereignty.‖147
In describing the Constitution, Tucker noted:
It is a federal compact; several sovereign and independent states may unite themselves together by a
perpetual confederacy, without each ceasing to be a perfect state. They will together form a federal
republic: the deliberations in common will offer no violence to each member, though they may in
certain respects put some constraint on the exercise of it, in virtue of voluntary engagements. The
extent, modifications, and objects of the federal authority are mere matters of discretion; so long as
the separate organization of the members remains, and from the nature of the compact must
continue to exist, both for local and domestic, and for federal purposes; the union is in fact, as well
as in theory, an association of states, or, a confederacy.148
The Constitution embodies a compact among peoples of sovereign political societies, each in their
sovereign capacity, and was differentiated from the loose federal arrangement under the Articles. The
Constitution was not by any means a Lockean compact between ruler and ruled nor was it a compact among
the whole people.149
Rather the Constitution aims to uphold the integrity of the states, as it places limits not
only on power, but also on majority rule, and yet preserves the sovereign character of its constituent states
from whence its authority derives. Its foundation rests on the basis of rule by consent of the governed.
Some nationalist theorists have been apt to draw misguided parallels between the American Union and the
1707 Acts of Union between England and Scotland.150
But as Tucker analyzed William Blackstone‘s
opinion, it is revealed that such a position is in error:
The kingdoms of England and Scotland are united into one kingdom; and the two contracting states
by such an incorporate union are, in the opinion of Judge Blackstone, totally annihilated, without any
power of revival. From which he expresses a doubt whether any infringements of the fundamental
and essential conditions of the union, would of itself dissolve the union of these kingdoms, though
144 Clyde N. Wilson introduction to Tucker, View of the Constitution of the United States, vii-xvii.
145 St. George Tucker quoted in Charles Pinnegar, Virginia and State Rights, 1750-1861: The Genesis and Promotion of a Doctrine (Jefferson, NC: McFarland
and Co., 2009), 156.
146 Ibid., 106.
147 Hamilton, ―Federalist #9,‖ The Federalist Papers, Wright, ed., 124-129.
148 Tucker, View of the Constitution of the United States, Wilson, ed., 92.
149 McDonald, States‘ Rights and the Union, 8-9. McDonald observed, ―[it] would be a compact not among sovereign states, as the 1781 Articles of
Confederation, nor a Lockean compact between ruler and ruled, nor even a compact of the whole people among themselves. It would be a compact among
peoples of different political societies, in their capacities as people of the several states. Such a compact was undreamed of in political philosophy.‖; John Phillip
Reid, The Authority of Rights: Constitutional History of the American Revolution, (Madison, WI: Univ. of Wisconsin Press, 1986), 133. Reid cited who Gordon Wood:
―[T]his Lockean notion of a social contract was not generally drawn upon by Americans in their dispute with Great Britain, for it had little relevance in explaining
either the nature of their colonial charters or their relationship to the empire.‖ This is acquiescent with Forrest McDonald‘s citation.
150 Akhil Amar, America‘s Constitution: A Biography (New York, NY: Random House, 2005), 29; Lewis Cruger, Catechism of the Constitution of the United
States, (1863), 36.

-36-
he readily admits, that in the case of a federate alliance, such an infringement would certainly rescind
the compact.151
In contrast to the Union existing in the United Kingdom of Great Britain, the original American
Union is perceptibly foederate (federal) in character. ―In Great Britain, a new civil state is created by the
annihilation of two antecedent civil states; in the American States, a general federal council, and administrative,
is provided, for the joint exercise of such of their several powers, as can be conveniently exercised in that
mode, leaving their civil state unaltered…‖152
If the bond of the Union has a secure basis in the consent of
its people, then the society may be pronounced to be free and republican. On the question of being citizens or
subjects, Americans stirred in favor of the former. Consent in a republic cannot ethically, legally or logically
be coercively imposed from above. Where constraint, fear and subjugation constitute that bond, such an
imagined Union is akin to the relationship of master and bondservant.
Tucker elucidated upon the character of the federal polity: ―[E]ach state retains its antecedent form
of government, its own laws, subject to the alteration and control of its own legislatures only; its own
executive officers, and council of state; its own courts of judicature, its own judges; its own magistrates, civil
officers, and officers of the militia; and, in short, its own civil state, or body politic, in every respect
whatsoever.‖153
Tucker observed that American Union stood firmly atop a republican foundation:
It is therefore a fundamental principle in all the American States, which cannot be impugned, or
shaken; that their governments have been instituted by the common consent, and for the common
benefit, protection, and security of the people, in whom all power is vested, and from whom it is
derived: that their magistrates, are their trustees and servants, and at all times amenable to them; and
that when any government shall be found inadequate, or contrary, to the purposes of its institution, a
majority of the community hath an indubitable, unalienable and indefeasible right to reform, alter, or
abolish it, in such manner as shall be judged most conducive to the public weal.154
John Taylor acquiesced, ―It ought to be considered as a compact, an organization of a government
limited by the compact, and as a law in relation to individuals.‖ He stressed, ―Its essential stipulation as a
compact is the division of power between the state and federal governments.‖155
It is vital to a republic that
sovereignty be regarded as derivative from the people. Commensurate with the tenets of the 1776
Revolution, and reiterated by Publius in Federalist No. 39, popular sovereignty traces its origins not to an
undifferentiated mass of the American people. Each state assembled in convention, and then ratified the
Constitution by their consensual act, and without compulsion.156
A QUESTION OF SOVEREIGNTY
Examination of the theory of sovereignty as it is stood in the republic‘s formative years is beneficial
to ascertaining the character of American federalism. The nationalist view held sovereignty coincident with
a strong centralized state. As historian William Dunning noted, ―The definition and development of
sovereignty, as a concept of political science, had been almost entirely the work of those who, like Bodin
and Hobbes, were defending absolute monarchy. By the liberalizing school of Locke and Montesquieu the
idea of sovereignty was evaded as unnecessary in theory and dangerous in practice—a mortal foe to
151 Tucker, View of the Constitution of the United States, Wilson, ed., 77.
152 Ibid.
153 Ibid.
154 Ibid., 34.
155 John Taylor, Construction Construed, and Constitutions Vindicated (Richmond, VA: Shepherd & Pollard, 1820), 136.
156 James Madison. ―Federalist #39,‖ The Federalist Papers, Benjamin F. Wright, ed. (New York, NY: Barnes and Noble Books, 1996), 283; Tucker, 32.
―Legitimate government, then, can only be established by the voluntary consent of the society, who by mutual compact with each other grant certain specified
powers, to such agents as they may from time to time choose to administer the government thus established, and their agents are responsible to the society for the
manner in which they may discharge the trust delegated to them.‖

-37-
liberty.‖157
During the debate on the Articles of Confederation, there was a debate over the nature of state
sovereignty and whether or not the states retained the attributes of national sovereignty under the
confederation.158
The Old World belief that sovereignty is in its nature inviolable and the republican belief in
the ultimate sovereignty of the people over the state complicated matters more.159
In his Commentaries on the
Laws of England, Blackstone defined law as ―a rule of civil conduct prescribed by the supreme power in a
state, commanding what is right and prohibiting what is wrong.‖ That prescribing ―supreme power‖ was
the sovereign. ―Sovereignty and legislature are indeed convertible terms.‖ He observed ―there is and must
be‖ in every state ―a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or
the rights of the sovereignty, reside.‖ In fealty to natural law, he deduced that positive law had to be
compatible with natural law, and ―no human laws are of any validity, if contrary to this.‖ He pronounced
that ―if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in
the ordinary forms of the constitution, that is vested with authority to control it.‖160
Thus the sovereign
could create subsidiary units of power that were revocable at the discretion of the sovereign. Dividing
sovereignty would involve the paradoxical problem of imperium in imperio (literally ‗supreme sovereignty
within supreme sovereignty.‘)161
Of the predicament posed by placing the locus of sovereignty, William. Gairdner observed that
―modern political leaders‖ are confronted by ―the ancient problem of Imperium in Imperio,‖ which poses a
concern for ―how to reconcile conflicting sources of authority within the same jurisdiction.‖ This problem
is acute in modern federal systems, irrespective of the established (theoretical) constitutional divisions of
power. There is a natural tendency from the onset for ―a stealthy encroachment by central government‖
representing an ―attack‖ or ―absorption‖ of the ―powers of constituent jurisdictions… provinces, states or
cantons.‖ This process is ―replicated‖ by the states ―as they engulf the original powers of their own
constituent jurisdictions,‖ such as ―cities‖ and ―towns.‖ With the absorption of basic units of a federal
system, sovereignty then ends up in the hands of the rulers. ―Lower levels of government are all but
powerless when customary or legal barriers are breached.‖ Theoretical formulations about sovereignty
being derivative of the people face hurdles to sustaining true republican forms, and rely on the structural
integrity of a federal system, especially its inbuilt symmetry of powers.162
The Founders sought to avoid the continuance of Old World controversies by negating the usage of
‗sovereignty‘ as a juridical concept in their fundamental charter of government.163
Whereas the term
‗sovereignty‘ appeared in the Articles of Confederation, it remained conspicuously absent from the later
Constitution. Across the Atlantic in the Old World, ‗sovereignty‘ delineated the Hobbessian ‗divine right of
kings,‘ a baneful doctrine to republican-spirited Americans. St. George Tucker quipped, ―[T]he union of a
SOVEREIGNTY of a state with the GOVERNMENT, constitutes a state of USURPATION and absolute tyranny,
157 William Dunning quoted in Bovard, Freedom in Chains, 212.
159 Kevin Gutzman, The Politically Incorrect Guide to the Constitution (Washington, DC: Regnery, 2007), 40.
160 William Blackstone, Commentaries on the Laws of England in Four Books, 12th ed. (London, 1793), 1:44; William Blackstone quoted in McDonald, States‘
Rights and the Union, 1.
161 Ibid.
162 Gairdner, The Trouble With Democracy, 356.
163 Luigi Marco Bassani, ―Jefferson, Calhoun and State‘s Rights: The Uneasy Europeanization of American Politics,‖ Telos (Winter 1999), 152. ―The
term sovereignty has had different meanings in America and Europe. In America, sovereignty had a clear anti-statist function (in as much as the sovereignty of
the constituent units was construed as a barrier to the consolidation of the Union), while in Europe sovereignty is still the keyword for the construction of state
and statehood (predicated on the absolute politicization of the term state and totally hostile to any concept of politics beyond or outside the state synthesis).
American sovereignty is simply the power to promulgate laws and is free of all the elements that presided over the construction of the modern state in Europe and
were systematized by the dogmatic German school of the past century. For early American theorists, sovereignty was not a ‗genetic concept,‘ the midwife of the
state, or the metaphysical attribute of statehood. Rather, it derived from the hermeneutics of the American compact. The ultimate question on sovereignty in
American political thought was never the all-encompassing European one of ‗who is sovereign?‘ but always ‗what kind of interpretation of the Constitution is
consistent with the system of power sharing established by it?‘ For the exponents of the States Rights school, … state sovereignty and the compact nature of the
federal bond are the results (not the premises) of all intellectual operations of constitutional construction. The states are not free and independent political
communities despite the ratification of the Constitution, but because of it.‖

1d - The Form and Shape of the Constitutional Order

1d - The Form and Shape of the Constitutional Order

Recommended

Recommended

More Related Content

Viewers also liked

Viewers also liked (11)

Similar to 1d - The Form and Shape of the Constitutional Order

Similar to 1d - The Form and Shape of the Constitutional Order (17)

1d - The Form and Shape of the Constitutional Order