On Eminent Domain: My Letter to Judge Andrew P. Napolitano

[I just emailed this letter here, cross-posted from my blog here.]

Judge Napolitano,

Hello. Listening to your talk today that you gave at Mises University, something occurred to me:

[Edit: let me embed the talk of his about which I speak; go to 12:47 for his discussion of eminent domain, on which I will be focusing:
Again, go to 12:47. End of edit; back to the letter.]

The Constitution nowhere empowers the federal government to practice eminent domain. That is, nowhere in the Constitution is that power granted in the first place. Nor does the Constitution anywhere say that people hold their property by fee simple and not allodial title.

[Edit: let me insert USLegal.com's definitions for "fee simple" and "allodial":

Allodial means free from the tenurial rights of a lord, as opposed to feudal land. It refers to absolute ownership of land by individuals, rather than feudal property ownership, which is dependent on relationship to a lord or the sovereign. Allodial land is not subject to any rent, service, or acknowledgement to a superior.

Most property ownership in the common law world is held in fee simple. Fee simple ownership represents absolute ownership of real property but it is limited by the four basic government powers of taxation, eminent domain, police power, and escheat and could also be limited by certain encumbrances or a condition in the deed. Allodial title is often reserved for governments.

End of edit; back to the letter.]

Given the doctrine of limited, enumerated powers, doesn't that mean that at least with respect to the federal government (each state constitution is its own issue), we all ought to be holding our property by allodial title? After all, the Federalists - including Hamilton himself! - argued that the Bill of Rights is superfluous, because the Bill of Rights prohibits things that are not even permitted in the first place. (Hamilton, Federalist #84: "For why declare that things shall not be done which there is no power to do?")

The Fifth Amendment states, "... nor shall private property be taken for public use, without just compensation", but even that does not empower the federal government to practice eminent domain; it merely limits that power insofar as it exists. It says that property shall not be taken without compensation, but nowhere is there a power to take any property in the first place.

Compare how the First Amendment prohibits the restriction of free speech, but that really, the government was never granted any power to restrict speech in the first place. So too, the Fifth Amendment prohibits taking property without compensation, but really, the government was never granted any power to take property in the first place.

In short: if we take the Federalist tack that the Bill of Rights is superfluous, and that really, we ought to entirely ignore it and do nothing without express sanction in the Constitution (and pretend the Bill of Rights does not even exist), then wouldn't that mean that eminent domain is legitimate only if we find a clause in the Constitution expressly permitting it? (I think the Antifederalists would agree, only they did not trust the government, so they wanted a superfluous and redundant Bill of Rights, just to be safe.) So doesn't that mean that eminent domain is unconstitutional even according to Hamilton?

The issue is, that this implies a contradiction within the Constitution. I mean, if the Fifth Amendment merely said, "... nor shall private property be taken for public use", period, omitting "without just compensation", then fine, we'd say that the clause is redundant and superfluous, just like the rest of the Bill of Rights. But that "without just compensation" throws a spanner in the works; it implies that someone thinks that WITH just compensation it WILL be legal, but that is apparently false. If, according to Hamilton's logic, eminent domain is prohibited absolutely (because there is no express permission), then why say "without just compensation"? Just say, "... nor shall private property be taken for public use", period. Heck, go one better and say, ""... nor shall private property be taken", omitting "for public use" as well! It's understandable when John Adams violates not only the First Amendment but also the doctrine of enumerated, limited powers (that renders the First Amendment redundant), because he is a selfish, power-hungry human, and the government applies the laws only when those laws are in its own favor. But one expects the Constitution to be at least internally consistent; it's reasonable when the practice of the government contradicts the theory, but it's not reasonable when the theory contradicts itself.

Obviously, states are not bound by the Constitution, so it is certainly possible that on the state level, property is held by fee simple, and not allodial title. (This would be despotic and evil, of course, but still constitutional. I am reminded of Rose Wilder Lane recounting a conversation with some primitive Himalayans, who said that if you must pay property taxes in America, then apparently, the government owns your property, and you merely rent it. From the mouths of babes.) So it is eminent domain on the federal level that I cannot wrap my brain around.

So I am confused. Could you please help me?

Thank you, and sincerely,
Michael Makovi
Jerusalem, Israel; formerly of Silver Spring, MD

Christian Reconstructionism: Theocratic Libertarianism?

This is a bit off-topic, but I hope I will be forgiven. On previous occasions, I have expressed the opinion that the libertarian character of America and the American Revolution is largely due to Reformed Christianity, and I have cited the articles of contemporary hardline Reformed Christian and libertarian think-tank American Vision, which follows in the footsteps of the Christian Reconstruction of Rousas John Rushdoony and Gary North, for corroboration. For example, see

• Exposing the Fed Scam, by Joel McDurmon (quoting Maryland's defense in McCulloch v. Maryland)
• Tyranny: the "Official Language" of Misguided Conservatives, by Joel McDurmon
• How to Fix Social Security, Amish Style, by Joel McDurmon

However, some have expressed skepticism to me, saying that Christian Reconstructionists are just theocrats who want to kill adulterers, and are hardly libertarians. Now, I have mostly been reading 16th-18th-century expressions of Reformed Christianity, and I have yet read very little contemporary Christian Reconstructionism, but I found some interesting passages in an article by Joel McDurmon I wanted to share.

Murray Rothbard had written an article, World War I as Fulfillment: Power and the Intellectuals (compare two other articles by Rothbard, The Progressive Era and the Family and Origins of the Welfare State in America ), to which Gary North responded with Millenialism and the Progressive Movement. Rothbard wrote another article, Kingdom Come: The Politics of the Millenium, and to that McDurmon responded with Murray Rothbard on the Kingdom: A Response:

The error here lies in assuming that CRs [i.e. Christian Reconstructionists] wish to “seize power” or “take over the reins of government” at all. This is certainly not the case, and few CRs if any have ever argued for the seizure of government power. On the contrary, R. J. Rushdoony, Gary North, Gary DeMar, Greg Bahnsen, and others have consistently, clearly, and soundly denounced the use of coercive State power and advocated free markets. I myself have more than once written that were CR to achieve its goals it would first require a massive revival of Christianity, and secondly would result in the greatest roll-back of State power in human history. We would experience the greatest ascendancy of human freedom and prosperity on record (or not on record, for that matter).

...

For these contradictions and other reasons I and nearly all other CRs reject the interpretation that the millennium is a physical, literal, and coercive rule of Christ Himself on earth. We see it as a gradually growing spreading kingdom persuading hearts of individuals first, then families, then leading to reforms of both church and state. It is a bottom-up, Spirit-led, long-term, peace-seeking enterprise. During this long process, there are at various times and places different degrees of sinner, saved, and saint mingled in the process; though, the further we progress, the greater the number of believers and the deeper influence the Gospel will have on each of them. Until this “golden age” comes per God’s providence, no amount of human effort can speed it up, and no amount of changing of institutions of government will help the cause or even itself last.

...

CRs do desire to limit the effects of blasphemy and family-destroyers in society, and very tough questions arise as to the who, what, and how in that regard, as Rothbard rightly notes. I believe, personally, that the move closer to a civil government that honors civil law requires God’s advances first, as I said, it will never do to change the laws first, impose them by force, and then pretend that we’ve advanced the kingdom. Yet I believe that as the kingdom advances, we will grow closer to a society free of the adultery, sodomy, blasphemy, etc, that Rothbard lists. Thus there is what I would call a divine irony in biblical civil law: the closer we get to achieving it the less we would need it, and by the time we arrive a establishing it as civil law it will be almost entirely a formality (though “in place” entirely in earnest).

In fact, Rothbard himself seems, unbeknownst to himself, to provide the evidence that traditional, conservative Reformed Christianity is libertarian, and that the postmillenialism (meaning that Jesus will return at the end of a 1000 year kingdom that man must inaugurate, implying social and political activism by man) of the Social Gospel Progressives was not the only form of postmillenialism, and that the postmillenialism of traditional Reformed Christians required that Christians inaugurate a laissez-faire regime. Rothbard wrote in "The Origins of the Welfare State", note 8,

Those two great ideological and political opponents of the late 1880s and early 1890s, Grover Cleveland and Benjamin Harrison, embodied this battle within the Presbyterian Church. Cleveland, an old-fashioned Calvinist Presbyterian from Buffalo, was the son of a Calvinist clergyman, a Democrat [meaning he was laissez-faire and classical liberal], a "wet" on liquor, and a personal bon vivant ; the prim, dour Harrison was a pietist Presbyterian from Indiana, and a Republican [meaning he was a Social Gospel Progressive]. See Richard Jensen, The Winning of the Midwest: Social and Political Conflict, 1888 — 1896 (Chicago: University of Chicago Press, 1971), pp. 79 — 80.

Rothbard himself said that the classical liberal, laissez faire Cleveland was an "an old-fashioned Calvinist Presbyterian"! Rothbard himself seems to admit that authentic, traditional Reformed Christianity is libertarian. If so, then the postmillenialism of those Reformed Christians, i.e. the requisitive social and political activism they would have believed they had an obligation to engage in in order to prepare the world for the return of Jesus, would have been libertarian, whereas the un-traditional Social Gospel Progressives saw postmillenialism as requiring a welfare state.

So whenever I claim, in the future, that the Puritans and Reformed Christianity had a libertarian character that went well with (if if it wasn't lineally responsible for) classical liberalism and Whiggism, I'll refer back to this. Obviously, none of this proves that the Puritans were proto-libertarians, but it makes it at a least reasonable and defensible claim, when the Puritans' intellectual and ideological heirs are libertarians who espouse Austrian Economics and one of them (Gary North) worked as a research assistant for Ron Paul.

Cromwell and the Constitution

I have been interested in, and therefore studying, for some time now, what I consider to be the Reformed Christian (Calvinist) origins of American government. Right now, I am reading a book about precisely that subject, viz. Foundation of American Freedom by A. Mervyn Davies (New York/Nashville: Abingdon Press, 1955), and a particularly fascinating section of the book is found at pp. 162-5, and I thought American Creation readers would appreciate it.

After describing how the English Civil War failed due to a disagreement between the center (Cromwell and Ireton) and the left-wing (Rainborough and Wildman), about whether suffrage should be extended only to property-owners or to all men, Davies says that the same basic conflict occurred in Philadelphia in 1787, about whether representation in Congress should be popular or aristocratical. (Elsewhere in the book, Davies, like Abraham Kuyper's Lectures on Calvinism, argues that the left-wing of Calvinism, such as the Levellers and Roger Williams, were the truest of all Calvinists to the fundamental principles of Calvinism. Cf. John Wingate Thornton, The Pulpit of the American Revolution, p. xiv, quoting George Cranmer: "If the positions of the [Protestant] Reformers be true, I cannot see how the main and general conclusions of Brownism [i.e. Independency or Congregationalism] should be false.")

Davies continues,

If the London convention had had a Benjamin Franklin to lend his conciliatory genius to settling this dispute, who knows? perhaps England would have set up a successful constitutional republic. And, by the same token, if there had been no Franklin at Philadelphia, it is even possible that the American Republic would never have been established. One vote might have made all the difference, for only one vote carried the compromise plan which saved the Philadelphia convention from dissolution. By such slender threads do the destinies of nations sometimes seem to hang!

England actually came closer to setting up an American-styled republic in 1649-50 than most people realize. While it is, of course, perfectly true, as Charles M. Andrews says, that the seventeenth century shows "only an English world in America with little in it that can strictly be called American," the paradoxical thing is that for a little while the seventeenth century also fosters the illusion of an American world in England with little in it that can strictly be called English! If it is true, and of course it is, that the story of American settlements cannot be properly be understood except as seen against the background of English history, it is no less true that the story of English constitutional experiments in the Commonwealth period cannot properly be understood except as viewed in the perspective of the United States' Constitution. In fact, one might almost call this brief period in English history a sort of prevue of the American idea.

Such a thought would scarcely occur to an English historian concerned with nothing more than the history of his own country. For to him the constitutional developments of the period cannot appear other than as abortive experiments-a dead end so far as the future course of his country is concerned. How differently they appear to an American historian interested in the origins of the American system of government! He sees this same dead end to be a most important link in the chain of development connecting Philadelphia with Runnymede. What is merely an almost irrelevant offshoot of English history to the English historian is part of the main trunk of American history to the American historian.

...

As George Burton Adams puts it:

It was American, not English, constitutional law which was here making its first beginning, its first essays in imperfect and half-conscious formulation, and it was in America that these principles were developed from this beginning in unbroken growth into the government of a great people. (Constitutional History of England, p. 322.)

...

The extent to which "American" ideas of government were circulating in England at this time may be best seen by examining the nature of the proposal that was offered in the House of Commons under the title of "The Agreement of the People." What a big landmark in human thought about government this agreement was may be judged from Adams' description of it.

... It implied that the people of England by an agreement formally entered into were to make a written constitution in order to establish a government and define its powers. ... The foundation upon which it rested, the agreement of the people, is the same as that upon which our constitutions rest and it was here proposed for the first time in history as the foundation of a national government. The similar compacts which had preceded it in America, though they came from the same ultimate sources, and were truly intended to establish "a Civil Body Politick," served for little communities of people in which an actual democracy was entirely feasible, and representative institutions, as an expedient for working a democracy on a great scale, had no need to be considered for a long time. The Agreement of the People was seriously intended as the constitution of a great nation. It must be regarded, however, as more than merely the first written constitution proposed for a great state. It was a constitution distinctly of the American type.

Notice how Adams there not only equated the English Civil War's "Agreement of the People" with the American Constitution, but also the New England Puritan town covenants too he related thereto.

(By the way, I am very much enjoying Davies's book, and I highly recommend it. I would say it goes very well with Benjamin Hart's Faith & Freedom: The Christian Roots of American Liberty and Abraham Kuyper's Lectures on Calvinism. I learned of Davies's book in an article by Gary DeMar at American Vision, The Scourge of Unbridled Democracy. I will say that I am myself an anarcho-capitalist, but my inspiration was the writings of the Reformed Christians, perhaps much as Murray Rothbard became an anarcho-capitalist thanks to Thomas Aquinas. To quote A Religious History of the American People by Sydney E. Ahlstrom, "There is much truth in the Roman Catholic claim that if Luther had possessed a profound knowledge of Saint Thomas or even of the full tradition of medieval exegesis of Saint Paul, he would have been spared much anguish. But these points are at best academic, for the assault on Thomism had begun even before the Angelic Doctor's death, and it had contiuned unabated." When I was looking at the recommended reading list in DeMar's God and Government: A Biblical, Historical and Constitutional Perspective, I was amazed to see that in the list of recommended books on economics - where DeMar specifically stipulates that he is including only books written from a Biblical, Christian perspective; even if the non-Christian or non-Biblical books are true and good, he says, they are not included - is listed Henry Hazlitt's Economics in One Lesson!! I have no idea how a book based on Frédéric Bastiat is considered Biblical and Christian, but I won't complain! I jokingly asked some fellow Austrian Economics-loving friends of mine, whether they thought DeMar excluded Ludwig von Mises and Murray Rothbard from his list, because DeMar seriously disagrees with them, or because however hard it may have been to justify considering Hazlitt (and therefore Bastiat) as "Christian" and "Biblical", it would have been even harder to include two atheistic Jews, Mises and Rothbard, as such!)

Compact Theory, Interposition & Nullification

I have previously discussed the nature of the Constitution and how it allows interposition and nullification by states. I especially relied on the Virginia and Kentucky Resolutions of 1798-99 by James Madison and Thomas Jefferson.

However, in email conversation with Professor Kevin Gutzman, it came to my attention that I had made a fundamental misunderstanding of these Resolutions, which many others of the time did as well, including both the Federalist Party (who rejected the Resolutions due to this misunderstanding), and the Southern nullification party (who eagerly embraced the Resolutions, erroneous understanding and all).

The issue was this: Madison had said,

...this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; ... and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by said compact, the states who are parties thereto have the right ... to interpose for arresting the progress of the evil...the authorities, rights, and liberties appertaining to them.

The Federalists responded that no, the Constitution was not ratified by the states (meaning the state legislatures), but that it was ratified by the people. And as a matter of history, they were quite right; it was popular ratifying conventions, not state legislatures, that had done the ratifying.

Madison responded, in the Report of 1800 (text form, scanned reproduction) that by "state", he meant not the government of a state and its legislature, but the sovereign people of the state, as a democratic body, working through their state. In the end, this meant interposition and nullification operated pretty much the same regardless, but it made a big difference as a matter of political philosophy.

I had already been coming to a realization that something was amiss, when I read Miracle at Philadelphia recently, and saw Madison successfully argue that the ratification of the Constitution must be done by the people, popularly, and not by the states, because the people too would be directly affected by the Constitution. This was not a federal compact among states, but a national government that would operate directly on the people. Furthermore, Madison said, as the states were themselves the products of the people, they could not do anything the people had not consented to. If the people had elected the state legislatures under the Articles of Confederation, the state legislatures lacked power to alter this arrangement.

At first, I was alarmed: what would happen to interposition and nullification?! Then, I was puzzled: what happened to the Virginia Resolution that said the Constitution was a compact of states?

First, eliminating my alarm and fear, I realized that this would do no damage to interposition and nullification. Madison's argument was based on social contract theory, that a return to the "original principles" of the Declaration of Independence was needed. So it meant, at worst, that the people ratified the Constitution and that the people could un-ratify it as well. Madison was taking power from the states, not to give to the federal government, but to give to the people. Furthermore, the people could always appoint the states as their inferior magistrates, as their interposing protectors, an idea that goes back at least as far as John Calvin's Institutes of the Christian Religion 4:20:31, and continually recurs in Reformed Christian writings (such as Theodore Beza's De Jure Magistratum and the anonymous Vindiciae Contra Tyrannos). As best I can tell, in America, the states replaced the feudal hierarchies which earlier Reformed Christians had assumed would be the interposing inferior magistrates. So even if all the power went back to the people, the people could in turn re-appoint the states as their protectors against the federal government, as had been a commonplace among Reformed Christians since the mid-16th-century.

Furthermore, a friend showed me a letter by Madison to Daniel Webster. There, we read,

[T]he undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. ... The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it...

This confirmed my suspicion that the people could always appoint the states as their interposing inferior magistrates. According to Madison here, the Constitution was ratified by the people working through their states. If they could work through their states to ratify, then they could work through their states to nullify.

The only question remaining was, what happened to the VA Resolution, which said that the states alone had made a compact? In the Constitutional Convention and in his letter to Webster, Madison had said one thing, but in the VA Resolution, he said something else! And the Report of 1800 is the answer. It turns out that all along, in the VA Resolution, by "state", Madison had meant the people of the state.

Dr. Gutzman told me to see the following books:
* Chapter 4 of his Virginia's American Revolution: From Dominion to Republic, 1776-1840
* His The Politically Incorrect Guide to the Constitution
* His forthcoming biography of Madison.
* William Watkins's Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy

So there you go. I made a mistake, Calhoun made a mistake, but now you won't.

The First Amendment: A Christian Document

The First Amendment was meant, as Justice Joseph Story says, to level all Protestant religions with each other, but not to equalize Christianity with Judaism and Islam. Alternatively, it did level all religions, even Judaism and Islam. But either way, it was only on the federal level. The real purpose of that amendment was merely to protect the state established churches from federal interference. Thomas Jefferson's letter of 23 January 1808 to Samuel Miller evinces a similar view. Therefore, the notion of incorporating the First Amendment onto states is absurd. Some of the men who ratified the First Amendment, actually believed in full religious liberty. Others, however, were merely jealous for their state established churches. So how the hell do you incorporate that into the states via the 14th Amendment?

Now then, if you read works of those who believed in full religious liberty (as opposed to merely jealously protecting the state church), works like John Locke's "A Letter Concerning Toleration," James Madison's "Memorial and Remonstrance Against Religious Assessments," Thomas Jefferson's The Virginia Act For Establishing Religious Freedom", Jefferson's Notes on the State of Virginia (s. v. "Query XVII"), and John Leland's The Rights of Conscience Inalienable; and therefore Religious Opinions not cognizable by Law: Or, The high-flying Churchman, stript of his legal Robe, appears a Yahoo, you'll see the following: that the justification for all these men, was based on the principles of Protestant Christianity. The underlying principle among them all, is that religion is within the jurisdiction and sovereignty of God alone, that no man on earth (whether pope or government official) has the authority to make laws regarding religion. Every man has the freedom to believe whatever he wants, and no man has the right to force him otherwise. The intent of religious liberty, according to these men, is to give all men the ability to worship God freely. In fact, John Locke and James Madison even say that an atheist has no right to religious freedom, because he doesn't believe in the God who granted that freedom in the first place. Similarly, Thomas Jefferson said elsewhere, "God who gave us life, gave us liberty at the same time. Can the liberties of a nation be secure when we have removed their only sure basis, a conviction in the minds of the people that those liberties are the gift of God?" For all these men, religious liberty was a Protestant Christian principle, viz. the opposition to popery, and the freedom of every man to read the Bible for himself and come to his own conclusion. If the First Amendment enshrines religious liberty (which is doubtful, as I show above, regarding states v. the federal government), then the First Amendment is itself a Christian document.

(In my humble opinion, if we extrapolate, we'll see that the concern of being allowed to worship God freely, applies to other areas of life as well, besides religion. If men must be free to worship God, without being compelled to join foreign religious and perform strange rituals not to their liking, does this not also mean that men must not be compelled to believe in or practice other ideologies, such as communism? The Framers spoke of religion alone, merely because religion was the ideology, par excellence. But if you read their concerns, you'll see that their concerns apply generally to all ideologies, not only religious ones. Why should I be forced to subsidize (with my taxes) a public school that teaches doctrines not to my liking? How is that different than forcing me to subsidize a church not to my liking?)

Returning to religious liberty being a Christian concept, in fact, James Madison explicitly credits Martin Luther in his letter of 3 December 1821. Madison is referring to Martin Luther's doctrine of the two kingdoms, in which the state possesses a temporal sword to punish crime and violence, and the church possesses a spiritual sword to punish heresy and inculcate orthodoxy, and neither may infringe on the other's jurisdiction. Both, however, are subordinate to God. Therefore, under Luther's doctrine, the state is separate from the church, but is still subordinate to God and subject to His commands. Christianity is binding on the state no less than on the church, only a different subset of the laws of Christianity is applicable to each, according to the station assigned by God. (Similarly, the fact that only kohanim (priests) can offer qorbanot (sacrifices), does not mean that everyone else is "secular.")

(In my humble opinion, when Locke, Madison, Jefferson, and Leland say that the state can have no jurisdiction over religion because men have not delegated to the state that power under the social contract, and that furthermore, they cannot, as religion belongs to God alone and cannot be delegated to anyone else (nemo potest dare quod non habet - one cannot give that which he does not have), it seems to me that what they are doing is, is giving a justification for Luther's doctrine. Luther distinguishes between the two kingdoms, but Locke et. al. are, I believe, offering a social contract theory-based justification for Luther. Given that it was Reformed Christians who are largely responsible for the invention of social contract theory, in the form of federalism, it seems fitting that Luther be justified based on a secular offshoot of Calvinism.)

So in fact, according to Madison, the morality of the United States's laws was to be a Christian morality. Again, the First Amendment was merely meant to equalize all Protestant sects with each other, but Christianity in the abstract was still to be supreme. The morality of the laws was to be an exclusively Christian one. There was to be no established church, enforcing dogma and ritual, but the state was still to enforce Christian morality. In fact, the First Amendment is very precise, speaking of a religious "establishment," and Jefferson speaks of the separation of "church" and state; the words "establishment" and "church" (as opposed to "religion") are chosen very deliberately, to refer not to religion or Christianity in the abstract, but rather, to concrete entities, to structured organizations. The First Amendment forbids the favoring of a church establishment (Baptist, Anglican, Congregationalist, Presbyterian), but not the favoring of Christianity in the abstract. No wonder that James Madison said, in a letter of 1833 to Jasper Adams, "I must admit...that it may not be easy, in every possible case, to trace the line of separation, between the rights of the religious and civil authority, with such distinctness, as to avoid collisions and doubts on unessential points." (Quoted in John Eidsmoe, Christianity and the Constitution: The Faith of our Founding Fathers (Grand Rapids, MI: Baker Book House, 1987), p. 110.) That's why even people like Thomas Jefferson and James Madison could issue Christian thanksgiving proclamations, calling for repentance and prayer to God. (Clarification: As Jefferson shows, in letter to Samuel Miller, he did not issue thanksgiving day proclamations as President of the United States. However, as Governor of Virginia, he did issue such proclamations. Evidently, Jefferson considered the First Amendment merely a technical legal impediment, but still felt that theoretically, the issuing of religious proclamations was legitimate for the government. On the state level, where no legal restriction existed, he was free to pursue this. This is all the more interesting, given that Jefferson himself authored the "The Virginia Act For Establishing Religious Freedom." Now, that act was not yet in effect when Jefferson was governor, but presumably, he still believed in its tenets. So apparently, Jefferson felt that while the First Amendment forbade the issuing of thanksgiving proclamations, by contrast, the not-yet-legislated "The Virginia Act For Establishing Religious Freedom," authored by him himself, no less, did not. So it is difficult to imagine how on earth we could incorporate the First Amendment via the Fourteenth, when apparently, the First Amendment was of such a peculiar character, limited to the federal government, and intended, according to some, to merely protect the state established churches from federal interference, and intended, according to Jefferson, to be legally more onerous and restrictive than what was morally necessary and proper for the states. Oh, and on the same day that Jefferson and Madison submitted their "The Virginia Act For Establishing Religious Freedom" - which Jefferson authored, and which Madison defended and advocated for with his "Memorial and Remonstrance Against Religious Assessments," the two being partners in the endeavor - James Madison also submitted a "Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers." Just as Jefferson felt there was nothing wrong with issuing religious proclamations, Madison thought there was nothing wrong with punishing Shabbat desecrators. )

Thomas Jefferson, in his famous letter to the Danbury Baptists, speaks of the "wall of separation between Church & State." Now, writing to the Baptists, it makes sense that Jefferson made a reference to Roger Williams, who said, "...when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness, as at this day. And that therefore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world..." We should notice three things: (1) Jefferson is relying on Roger Williams, so Jefferson's doctrine of the separation of church and state is obviously a Christian one; (2) the purpose of the wall is to protect the garden of the church from the wilderness of the state, with the threat being not that the church will corrupt the state, but the opposite, that the state will corrupt the church; (3) the church is to be kept peculiarly unto God, which is the same concern we saw earlier, that religion is something that only God, not the state, has jurisdiction over.

In my opinion, the Framers' political philosophy, regarding religious liberty, tended towards libertarianism, but their moral philosophy was always a Christian one. Libertarianism is merely a political philosophy, and can be paired with any moral philosophy. Ayn Rand chose Objectivism to accompany her libertarianism, while the Framers chose Christianity. Myself, I am a libertarian and tends towards the most separatist and radical view of separation, that the state should have nothing whatsoever at all to do with religion, believing that the truth is strong enough on its own, and believing that the state has no jurisdiction in such areas. (I also believe that public schooling is unconstitutional and illegal.) But the First Amendment means what it means, whether I like it or not.

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?)