3 Ways the Constitution Failed Almost Immediately
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3 Ways the Constitution Failed Almost Immediately

September 15, 2019

“The Constitution began as a worthy document,
perhaps the best plan for a government for its time, and it more or less succeeded in
retaining its purity and effectiveness in restraining government for almost a hundred
years until the progressive era. The founding generation were righteous and self-sacrificing
people with pure motives and were united in the vision of One Nation, Under God. But in
the 21st century, liberals began co-opting and re-interpreting the Constitution to fit
their preferences and have changed the nation for the worse. If only we could restore America
to the greatness it once possessed.” Wait, wait, I’m sorry. I can’t do it.
I’m sure we all want to make America great again but this version of history just isn’t
right. Let’s set the record straight. This is 3 ways the Constitution Failed, like, almost
immediately. Thanks for watching No King But Christ. I’m
Adam Graham. It is no surprise that the Constitution is
a document that is greatly revered within the United States. All of the chips are stacked
in its favor. Given the typical extent of education offered on the history of the colonial
period and the rather limited set of opinions read from the period, few escape from their
time in grade school without an admiration for it. The very powers and structures of
every level of government that we interact with depend on its existence and authority
and, as such, have a very vested interest. I certainly don’t recall any systematic exposure
to the words or writings of the anti-federalists or those that opposed it at any point in my
childhood. And there are even entire groups of Americans in general and Christendom in
particular that believe it to be in some way divinely inspired. The problem with this perception stems from
a simple ignorance of history and fails to recognize a sad, sordid truth of American
history: the Constitution was put forward by many for the purpose of centralizing power
and control from the very beginning and it failed to live up to its intended purpose
almost immediately. Here are three sordid episodes in history that show this to be the case. 1. Militia Act of 1792 and the Whiskey Rebellion
In a report to Congress from the Department of the Treasury, Alexander Hamilton, then
Secretary of the Treasury under George Washington, recommended internal excise taxes as a revenue
raising measure. It was decided that those taxes should fall on distilled liquor. But
many southern states and agricultural regions, especially that of western Philadelphia would
not bow to that demand so easily. In what is now referred to as the Whiskey Rebellion,
Philadelphia farmers repeatedly harassed tax collectors and prevented collection of the
taxes. Hamilton and others who did not value uppity farmers and their opposition to the
new general government authority thought that the prudent course would be to send in the
troops to quell their activities. President Washington long remained wise and reluctant
to enforce the law at the end of a bayonet and even John Jay, now Chief Justice of the
Supreme Court, normally an ally of Hamilton, “thought that the employment of a military
force…would be as bad as anything that the Rioters had done—equally unconstitutional
and illegal.” Nevertheless, Washington slowly began seeking
opinions and approval for military action and the Militia Act of 1792 offered a potential
solution. The bill’s language allowed for the Executive to call up the militia in cases
where opposition to the laws of the United States was too powerful to be dealt with in
the ordinary course of judicial proceedings. However, the Constitution demanded otherwise.
Article 1, Section 8 vested this power to Congress alone and no unauthorized act of
Congress could change that fact. Washington’s 15,000 troops sent into Pennsylvania represented
one of the first encroachments of the Executive and Legislative branches and set a dangerous
precedent for further action. (I’m looking at you, Lincoln) And all this not 4-6 years
into the life of the general government. 2. Marbury v. Madison and Judicial Review
Fast forward to 1801. Washington’s two terms remained comparatively uneventful and rightly
so. But his successor, John Adams, did not have the clout and respect that Washington
demanded of post-war Americans. His debacle with the Alien and Sedition acts, directly
infringing upon rights of speech and press for the purpose of reducing political criticism
and backlash, demonstrated just how viciously divided the Union could become in less than
ten years. But the petty partisanship was just beginning. Just months before the newly elected Jefferson
administration was to transition to power, Adams and his Congress passed an updated Judiciary
Act, its enactments including the addition of several new federal judges, the appointments
of those seats going to loyal Federalist judges, as well as the reduction of Supreme Court
justice seats and it was accompanied by the appointment of John Marshall as chief justice. As much as early American founders can be
praised for their political principles, this blatant power play shows just how petty politics
has always been within the federal government halls. But the most far reaching impact of this entire
episode concerns a particular classic Supreme Court case. During the chaos of the Jefferson
presidential transition, some of the newly minted appointments failed to be delivered
in a timely manner and one in particular, that of William Marbury, was delayed by ten
months. This resulted in his being pressured to request a writ of Mandamus against the
Jefferson administration and, thus, the case of Marbury v. Madison was born. While the majority decision, issued by Chief
Justice Marshall himself, indeed held to some semblance of originalism in rejecting the
Supreme Court’s ability to issue a writ of Mandamus, it was his departure into exposition
of the purpose of the Supreme Court itself that was particularly harmful. In this classic
opinion, he confidently declared that it was “the duty of the Judicial Department to
say what the law is.” With so few words, Marshall had effectively enacted the principle
of Judicial Review, that is, the Judicial determination of the validity of law, for
federal legislation. The problems with this are numerous. While
many states had already established Judicial Review for themselves, the power was discussed
during the Philadelphia Convention but was not widely supported and was not included
in the enumerated powers of the Judicial branch. So while many Americans would not be surprised
to see this play out within the general government, “the power of judicial review was an assumed
power of the court not expressly granted by the text of the document.” In the words
of Jefferson, “Nothing in the Constitution has given [the
judges] a right to decide for the Executive, more than to the Executive to decide for them
… The opinion which gives to the judges the right to decide what laws are constitutional,
and what not, not only for themselves in their own sphere of action, but for the legislature
and executive also, in their spheres, would make the judiciary a despotic branch.” As well, Madison was of the opinion that judicial
review offered too much potential for abuse. In the description of McClanahan, “Madison
and other members of the founding generation thought that the Supreme Court, as an appellate
court, could only invalidate the decisions of lower federal courts in relation to law
and fact, meaning it did not have the ability to interpret the constitutionality of the
law, only whether the party in question violated the law or was given a fair trial.” The
Supreme Court certainly doesn’t look anything like Madison’s vision today and we are undoubtedly
worse off for it. 3. Fletcher v. Peck and the Further Extension
of Judicial Review If, indeed, Americans were not surprised or
overly perturbed by Marshall’s establishment of Judicial Review in the federal sphere,
what this practice led to soon afterward would most assuredly not be received in the same
way. The next episode begins in Georgia in 1795,
with the sale of 35 million acres of Yazoo River country land, land that would eventually
encompass Mississippi and Alabama. Sadly, you would not be surprised, at this point,
to know that the vote to authorize that sale involved the bribery of several state legislators
in exchange for their support. Georgians soon caught wind of this corruption and quickly
replaced the politicians in power. They then repealed the legislation and declared the
contracts null and void. Unfortunately, in the meantime, investors engaged in subsequent
trades with other landowners and investors that resulted in several degrees of separation
between the new “innocent” parties to the land sales and the original conspirators.
While the entire ordeal languished in the courts and Congress for a number of years,
by 1810 the noteworthy case between Robert Fletcher and John Peck finally arrived before
the Supreme Court. At first blush, the case at hand seemed to
revolve around the Contract clause of the Constitution, contained in Article 1, Section
10, and whether Georgia had effectively passed an Ex Post Facto law via an illegal Bill of
Attainder. And to the uninformed, this makes some sense. However, as in many other subsequent
cases of creative misconstruction of problematic Constitutional clauses, this simply doesn’t
follow. The Contracts clause of the Constitution was
purposed to be a safeguard against fiat and paper currency, inflation, and state government
default. This was true in virtually every case during the various ratification conventions.
As well, it was dubious to assume, even if the Yazoo deal was included within the purview
of the Contracts clause, that a pursuant contract was valid and obligatory in the case of fraud.
As Gutzman points out in language contained within the contracts clause of the Northwest
Ordinance, “the obligation of contracts was understood to be dependent on the absence
of fraud (as well as coercion).” But, more than anything else, the principle
that the Supreme Court was entrusted and authorized with the ability to review the Constitutionality
of state legislation was itself actively resisted during the ratification debates and Fletcher
v. Peck represented the very first case of the Supreme Court doing just that. As McClanahan
and others have pointed out, the jurisprudence contained within Fletcher v. Peck has been
used as justification for invalidating state law nearly seventy-five times. Undoubtedly,
in at least a few instances, the eventual outcomes of cases decided in this manner may
have been more agreeable and certainly more inline with our 21st century sensibilities.
But the damage done by the decision in subverting the otherwise healthy checks and balances
of the states against the general government has since emasculated the states as the most
powerful check unto themselves and now forever changes the way in which we view their relationship. Not a year goes by that the Supreme Court
does not entertain some appeal from a lower state court regarding the Constitutionality
of those decisions and the laws and conditions surrounding them. But given a proper understanding
of Constitutional history, this should never have even been a possibility. These are just three ways that the Constitution
broke down within the first couple of decades in American history. Don’t forget to subscribe
and follow No King But Christ to make sure you never miss a video. And be sure to like
and share this video and maybe let us know in the comments below your favorite federal
government failure in early American history. You know, like the Alien and Sedition Acts.
Or the first central bank. The Louisiana Purchase. The embargo. The Aaron Burr scandal. Or the
War of 1812. Or the second central bank. That whole Hamilton duel thing.

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