DUNN LORING, VA — In the Kentucky Resolutions of 1798 — one
of the most important and prophetic documents in American history — Thomas
Jefferson made a simple and irrefutable argument. The Constitution
is designed to define and limit the powers of the federal government.
But if the federal government (including the federal judiciary) is
the sole, exclusive, and final authority to say what the Constitution
means, it can be expected to rule in its own favor, constantly expanding
its own powers and usurping the powers reserved to the states.
In short, if the federal government can define the extent of its own
powers, we may as well not have a written Constitution, because its
whole purpose has been defeated.
Jefferson was exactly right. It took a while before the Supreme Court
assumed the power he feared it would, but it finally happened, and
on a scale that would have astounded even Jefferson. In 1973 the Supreme
Court made its Grand Usurpation, stripping the states of their authority
to protect human life itself.
The Constitution had been virtually abolished by “interpretation” — turned
into what Jefferson called “a blank paper by construction.” Anyone
who thinks Jefferson would be a liberal in our time, by the way, should
consider that he recommended that sodomy be punished by castration.
He was especially suspicious of claims of “implied” powers
in the Constitution (as in his famous debate with Alexander Hamilton
over the issue of a national bank).
It doesn’t take much imagination to guess what Jefferson would
think of the U.S. government today, when its supposed “implied” powers
are virtually infinite and nobody bothers measuring them against the
powers expressly granted. When the federal government claims a new
power nowadays, nobody even asks just which clause of the Constitution “implies” it.
In practice, the idea of implied powers means that the government does
whatever it pleases.
The Constitution delegates a few specific powers to the U.S. government,
reserving all other powers to the states and the people. It is these
reserved powers that were meant to be well-nigh infinite; they were
assumed to be too many and too various to list. Yet these powers have
constantly shrunk, and we never hear of “implied” powers
of the states. The trick of claiming unlisted powers by implication
is one only the federal government is allowed to play.
This is a total inversion — and perversion — of the constitutional
design. I do not say this merely as a matter of plain historical fact;
it is the obvious and inescapable meaning of the text of the Constitution
itself. As James Madison put it, the powers of the federal government,
being listed, are “few and defined”; the powers remaining
with the states, being unlisted, are “numerous and indefinite.”
When the right of the sovereign states to withdraw from the Union
was denied, the states lost their ultimate defense against federal
usurpations. A new biography of Jefferson skates over the great Kentucky
resolutions, except to remark that his arguments “brought him
dangerously close to secessionism.”
I had to laugh. Apparently the author has never noticed that Jefferson
explicitly approved the right of secession on several occasions. It
was he, after all, who wrote the most famous secessionist document
in history: the Declaration of Independence, proclaiming not one but
13 “Free and Independent States.” (His grandson George
Wythe Randolph would later serve as a Confederate general and secretary
Jefferson would surely have agreed that Roe v. Wade justified secession.
How far we have departed from his philosophy — and from constitutional
A version of this article originally appeared in Joe Sobran's Washington
Watch column in The Wanderer newspaper on September 18, 2003.
Copyright © 2010 by Joe Sobran and the
Fitzgerald Griffin Foundation. All rights reserved.
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