Justice Samuel E. Perkins of Indiana on the Nature of the Constitution (1864)

[Howdy y'all! I'm new here! To quote a guest post I recently contributed to American Creation, "Michael Makovi is an Orthodox Jewish student studying in Jerusalem, and is originally from Silver Spring, MD. Mr. Makovi's focus is on political philosophy, with a special interest in Reformed Christian sources of libertarianism. His personal blog is here."]

I.

In my limited reading, most proponents of interposition and nullification by state governments start with Thomas Jefferson's and James Madison's Kentucky and Virginia Resolutions. In the former, the Kentucky Resolution of 1798 by Jefferson, we read, inter alia,

Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. ... and that therefore this commonwealth [of Virginia] is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification [emphasis added] of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them

The follow-up Kentucky Resolution of 1799 by Jefferson and the Virginia Resolution of 1798 by Madison say much the same. Madison adds another interesting observation, however:

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.

Madison also says,

that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose [emphasis added] for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Notice how, between the two of them, the concepts of "interposition" and "nullification" are accounted for by that very terminology.

I believe we have there a very accurate and incisive summary of the nature of the compact of the United States Constitution, and certainly the best I have seen anywhere so far.

II.

But I recently saw another similar instance of interposition and nullification which I found exceedingly fascinating: the opinion of Justice Samuel E. Perkins for a unanimous court in Thayer v. Hedges (22 Ind. 282, 1864), in the Indiana Supreme Court. (I learned about this case, as well as about George Bancroft's work (see the end of this post), in "Christianity in Nineteenth Century American Law" by Professor Steven Alan Samson.) The question was regarding the legality of the Greenbacks issued for the Civil War, and the decision was that they were absolutely unconstitutional. Perkins summarized the relevant federal legislation, and concluded that it was all unconstitutional, based on the Constitution's stipulations in Article I, Sections 8 and 10 that only gold and silver coin can be made legal tender. It was interposition and nullification in action.

But what I found even more interesting was Perkins's route to that conclusion. In a 13-page version of that decision I have from WestLaw, roughly one page is the editor's introductory material, two pages is Perkins's laying out the relevant legislation and questions to be asked, and two or three pages is analysis of Article I, Sections 8 and 10. So that accounts for about half of the decision. But what about the other half of those 13 pages?

Perkins actually quotes, verbatim, word-for-word, the entirety of what the Articles of Confederation and the Constitution say about the powers of Congress. He explains this extremely unusual method, prefacing,

This [issue of the Greenbacks] is a question of the gravest import. To arrive at a correct answer to it, it will be necessary to somewhat thoroughly analyze the legislative department of the Constitution of the United States. That analysis we shall attempt. We shall do it in no partizan spirit. All ought to desire to know aright our Constitution, and discussion and comparison of views are necessary to such knowledge.

And especially, in times of difficulty, when the temptation to depart from it may be great, is the duty of watchfulness the more pressing, as the bad precedents of such times become the bad laws of times of tranquillity. Looking forward, as we hopefully do, to the complete suppression of the existing rebellion and the restoration of the Union under our revered Constitution, we are anxious that we may then find it in its integrity, unburdened by bad precedents, dangerous constructions and vicious interpretations.

We do not wish to be understood as intimating that the Constitution is beyond improvement; that progress will not render change necessary; but we do hold that such change, happily provided for in the Constitution itself, should be made in the mode therein prescribed. Ours is either a government of the Constitution, or it is not. If it is a government of the Constitution, then its execution, consistently with the laws made under it, is all the Federal Government that is necessary and proper for the welfare of the nation, and all to which the States and people can be rightfully subjected.

I do not believe the Cato Institute could find a much better summary of its grievances against Abraham Lincoln and Franklin D. Roosevelt. Perkins also notes that the Constitution forbids the suspension of the writ of habeas corpus, except by Congress in case of invasion or rebellion. I assume he is taking a stab at President Lincoln here as well.

III.

Before discussing the Articles of Confederation, Perkins first shows why the American Revolution was fought in the first place:

Most of the time since the settlement of this country by the whites, the people of the United States have lived under two governments acting upon them within the same territory. During our colonial State, we had the British for our general government, and the colonial, for our local governments. And it was one great source of controversy as to how far the British general government should have a right to exercise powers over the internal affairs of the Colonies, which were foreign and independent as to each other, but domestic and subject as to the British government. It was agreed that there were some matters pertaining to the general welfare of the Colonies as a whole, such as their foreign and inter-colonial trade, their common defence against the Indians and foreign enemies, which should fall within the power of the general government; but their internal, domestic affairs, the general welfare of the people of the several Colonies, and of the several Colonies themselves, in their domestic affairs, almost everything, indeed, except their common foreign relations, the colonists claimed should be left to the care and judgment of the people, and colonial governments, as the powers best calculated to manage them wisely and economically, and as the most safe to be trusted with them. The reader of history will not require citations of authorities to this point. One of the charges in the Declaration of Independence was that the King had assented to acts of Parliament for suspending our legislatures, and declaring that the Parliament had power to legislate for us in all cases whatsoever.

By the Declaration of Independence, the Colonies threw off the British general government, rather than to submit to its encroachments upon matters pertaining to their several domestic, instead of confining its action to their foreign aggregate general welfare.

It then became necessary for them to create a new general government to manage matters pertaining to their general welfare, which term they used during their colonial State, as applicable mostly to matters connected with their foreign and inter-State relations, which latter were really then foreign, as the States were separate sovereignties.

The new general government was created by the Articles of Confederation, in 1788. There was no general government of authority, force, power, succeeding the British, before these Articles.

IV.

Perkins then makes a wonderful argument against the concept of a "living Constitution":

As soon as peace was established, says Mr. Curtis, (Hist. Const. vol. 1, p. 384,) it became apparent, that while the Confederation was a government with the power of contracting debts, it was without the power of paying them. Id. p. 173, et seq. But the Congress did not claim that, under the pressure of necessity, or a latitudinous construction of the general welfare clause of the Articles of Confederation, it could assume power to raise money. The written charter of powers specified what might be done to provide for the general welfare; it clearly indicated the scope and meaning of that term, and Congress, in its actions, conformed thereto. But efforts were immediately commenced to procure from the States a further grant of power, by way of amendment to the Articles of Confederation, to enable Congress to levy duties, &c., for the express purpose of paying the debts, &c. The efforts were unsuccessful, but they resulted in the call of a national convention to revise the Articles of Confederation; which convention formed our present Constitution.

In other words: when the Articles of Confederation proved insufficient for the proper execution of government, because it gave Congress the responsibility to accrue debts but denied it the power to pay those debts, Congress did not use the "general welfare" clause as a means of creating a new power of taxation for itself. It did not claim that the Articles of Confederation were a "living constitution" and that the exigencies of the times demanded new powers to be imagined and created ex nihilo. Admitting that Congress's desire to tax was a quite legitimate one, the solution sought was not that of a loose-constructionist reading of a living constitution, but rather, a convention was called to revise the actual terms of the Articles, resulting in our Constitution.

Why should our Constitution be any different today? If the Articles of Confederation were not "living," then why should the Constitution be assumed to be "living"? The issue is this: if the Constitution today is "living" and can be amended on-the-fly, via a loose-constructionist reading, in order to answer new necessities not previously anticipated and provided for, then why is the Constitution necessary at all? The Articles of Confederation could have been read exactly the same way that loose-constructionists today (holding by the concept of a "living constitution") read the Constitution! So the whole concept of a "living constitution" begs the question: why do we even have the Constitution? Why were the Articles replaced rather than subjected to a "living Articles" reading?

As we already saw, Perkins says, "We do not wish to be understood as intimating that the Constitution is beyond improvement; that progress will not render change necessary; but we do hold that such change, happily provided for in the Constitution itself, should be made in the mode therein prescribed." In other words, the Amendment process is there for a reason!

V.

One more thing about Perkins's decision is worth remarking on, I believe. In a very refreshing way, he seems to eschew legal positivism, and engages in some historical and philosophical discussion of the issue of legal tender. (The following quotation is why Perkins's decision was discussed in the aforementioned article "Christianity in Nineteenth Century American Law.")

Gold and silver have been chosen by the commercial world as the medium of commercial exchanges and the measures of commercial values; chosen, not by the compulsion of governments, but voluntarily, from utility and convenience, and governments acquiesced in the choice and sanctioned it, and no power of government can compel their abandonment. See Smith's Wealth of Nations, pp. 16, 176, 179. They became legal tender by the lex mercatoria of nations, and contracts, made without specifying a medium of payment, were understood, by the law of nations, to be payable in coin. The history of the world shows this. Say's Pol. Economy, p. 222; 2 Mill's Pol. Economy, p. 19; 18 Ind. 471. Coin was the sacred currency as well as profane, of the ancient world. Historically considered, we find that the Almighty, and his Prophets and Apostles, were for a specie basis; that gold and silver were the theme of their constant eulogy. Abraham, the patriarch, 1875 years before Christ, being about 3740 years ago, purchased of Ephron, among the sons of Heth, the field in which was the cave of Machpelah, shaded by a delightful grove, for the burial place of his dead; and he paid for it "400 sheckles of silver, current money with the merchant." Gen. 23, 16. So Solomon, the wisest of men, seems to have had a decided preference for a hard money currency. In 1st of Kings, chap. 9, verses 27, 28, for example, it is said: "And Hiram sent in the navy his servants, &c., and they came to Ophir, and fetched from thence gold 420 talents, and brought it to King Solomon." And in chap. 10, verses 14, 15 and 29: "Now the weight of gold that came to Solomon in one year was 666 talents, besides that he had of the merchantmen, and of the traffic of the spice merchants, &c.; and a chariot came up and went out of Egypt for 600 shekels of silver, and a horse for 150 shekels," &c. Again, the prophet Jeremiah, one of the "greater prophets," says, chap. 32, verses 9 and 10: "And I bought the field of Hanameel, my uncle's son, that was in Anothoth, and weighed him the money, even 17 shekels of silver, and I subscribed the evidence and sealed it, and took witnesses, and weighed the money in the balances." Walker, in his Am. Law, p. 145, declares it an act of despotic power to make paper a legal tender. The principal interference of government with the currency has been to debase it. Say gives an account of the acts of the French monarchs, of this character, in his Political Economy, book 1, chap. 21, § 5, and adds: "Let no government imagine that, to strip them of the power of defrauding their subjects, is to deprive them of a valuable privilege," &c. Says Mr. Gouge: "No instance is on record of a nation's having arrived at great wealth without the use of gold and silver money. Nor is there, on the other hand, any instance of a nation's endeavoring to supplant this natural money, by the use of paper money, without involving itself in distress and embarrassment."

And finally, I will cite some nice primary and secondary sources I found regarding the laws of tender in early America, for the benefit of those interested:

• A Caveat Against Injustice by Roger Sherman, with a foreword by F. Tupper Saussy arguing that the federal government has today utterly neglected the Constitution's provisions on legal tender. See also the link there to a facsimile of the original.
• An Essay on Money by John Witherspoon. See also the link there to a facsimile of the original. Also, this essay has been republished by American Vision, edited by Joel McDurmon, for sale here.
• "John Witherspoon: 'End the Fed'" by Joel McDurmon, citing Pelatiah Webster's Political Essays On the Nature and Operation of Money, Public Finances and Other Subjects and Edwin Vieira's Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution for their historical evidence regarding the colonial period.
• A Plea for the Constitution of the United States, Wounded in the House of Its Guardians, by George Bancroft. (I learned of this work as well from Steven Alan Samson's aforementioned article.) Bancroft has a summary of the entire history of paper currency from the late 17th-century until the Constitutional Convention, as well as a summary of the Constitution's legal opinion on that subject, and a discussion of the proper jurisdiction and authority of judges with respect to the Constitution. Bancroft argues that as the jurisdiction of a judge is limited to the given case at hand and not to future cases, and that much more is he limited to the authority of the Constitution, that therefore, every upcoming legal case must be judged anew with respect to the Constitution alone. The decisions of judges, he says, are authoritative insofar as they agree with what the Constitution already says, and previous court decisions have authority only insofar as they correctly interpreted the Constitution. (Sola scriptura, anyone?)