The title may surprise you. You may already be thinking of informing me that Madison himself was one of the great champions of states’ rights in 1798, penning the so-called “Virginia Resolution” that defined a doctrine of “interposition.”
C’mon, McDurmon. Don’t you know anything?
I have, of course, written on Madison’s contribution in Restoring America, and am well familiar with it. This article is not about that—which came later in Madison’s political career. This is about the greater damage he did earlier—which was so great any later efforts could not undo it—and therefore what a great big fat hypocrite he was.
Now let me prove it.
I have previously written on the denuded Tenth Amendment. I have written about how certain lawyers have argued with me over its alleged power to bind the federal government. I was reminded of this again recently when even a pro-liberty-movement tax defense attorney said of the Tenth Amendment in an interview: “The Constitution does say that everything not explicitly delegated to the Federal government to the states or to the people. . . .”
It says no such thing. It does not say “explicitly”—or “expressly,” as was the historical term—and the absence of that one word is the whole difference, and has been recognized by the Supreme Court as being the whole difference. In a moment we will find out just who was behind that express denuding.
I have argued that the Tenth Amendment was expressly (no joke) written in such a way to leave tremendous leeway to federal powers. I have argued that no matter how many alleged founders spoke in a “strict construction” view of constitutional interpretation, few if any of them followed it, including Jefferson and Madison. Loose construction—the “wax nose” or “living document” constitutional view—has ruled from Hamilton forward with few if any exceptions.
Nevertheless, people often throw it in my face that Madison said so clearly, in Federalist 45,
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
In other words, in Madison’s view, allegedly, the Constitution was no threat to the powers of the states, and the powers of the federal government were “defined”—meaning the federal government had these limited, explicit powers and nothing beyond or implied by them.
A few things: first, as I have argued, the Federalist Papers are not legal documents, and never were. They were political propaganda from the pro-nationalist side of the constitutional ratification debates. They were propaganda, period. As such, they are as full of spin as any political campaign ad. Their promises are as trustworthy as any campaign promises.
Second, and more importantly, these lines from Madison were a big fat lie, and probably a conscious one at that. The Tenth Amendment denuded the state powers far beneath what they were under the Articles of Confederation—which did contain the word “expressly.” In this regard, I have often pointed to John Marshall’s decision in McCulloch v. Maryland:
Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only, that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;’ thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument.
Thus for the want of one word—“expressly”—the Tenth Amendment leaves construction in the hands of federal agents, bureaucrats, presidents, judges, etc.—who always will construe the document, just as Marshall did, to favor their big government agendas. And they call this “fair construction.”
Nevertheless, the whole point of the Constitutional settlement, on the part of the nationalists who pushed it, was to eliminate that particular check on the central government and get rid of the limitation imposed by the clause, “expressly delegated.”
When I point this out, this is where my critics say Marshall made a mistake, because Madison himself said “The powers delegated by the proposed Constitution to the federal government, are few and defined.” “Few and defined” means the scrivener of the Constitution himself wanted the power to reside on the side of the states except where explicitly, or “expressly” enumerated in Article 1, Section 8.
My revelation for you this morning shows that Madison in fact worked against that very doctrine during the Amendment process for the Bill of Rights. He actively worked against the Tenth Amendment to forbid the word “expressly” from being included. The exchanges are recorded in the Annals of Congress, and have been conveniently excerpted (in full and accurately) by the Founders’ Constitution, available online from the publisher, the University of Chicago.
On two separate occasions, proponents attempted to have the word “expressly” included in the Tenth Amendment. On both occasions, Madison himself led the opposition successfully to keep it out. First, on August 18, 1789:
The 9th proposition, in the words following, was considered, “The powers not delegated by the constitution, nor prohibited by it to the States, are reserved to the States respectively.”
Mr. Tucker proposed to amend the proposition, by prefixing to it “all powers being derived from the people.” He thought this a better place to make this assertion than the introductory clause of the Constitution, where a similar sentiment was proposed by the committee. He extended his motion also, to add the word “expressly,” so as to read “the powers not expressly delegated by this Constitution.”
Mr. Madison objected to this amendment, because it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia. He remembered the word “expressly” had been moved in the convention of Virginia, by the opponents to the ratification, and, after full and fair discussion, was given up by them, and the system allowed to retain its present form.
Now get that: here is Mr. “few and defined,” at the point at which upholding his Federalist Paper promise of “few and defined” really counts, instead specifically arguing just the opposite: “Mr. Madison objected to this amendment, because it was impossible to confine a Government to the exercise of express powers.”
What does this mean? It means that Madison’s former promise in the Federalist 45 was the equivalent of Madison saying, “If you like your express powers, you can keep your express powers. *smirk*”
Madison prevailed over Tucker that day, and when a vote was taken on the measure three days later, Madision joined the opposition to squash it, 32–17.
I will in no way deny that Madison at one time and in one place said the federal government powers are “few and defined.” He did. My point is that he was a big fat liar when he did. His actions in Congress immediately afterward prove it.
No amount of back-peddling in 1798 could undo what he did in 1789. In 1789, Madison was the originalist. In 1798, he was a revisionist. When John Marshall dragged up the old “expressly” debate in his 1819 McCulloch decision, he was siding with Madison the Congressman instead of Madison the later revisionist.
The fight to restore freedom in this country will not be won by appealing to the text, history, or as we now see, even the original intent of the Constitution. The restoration of freedom needs something above and beyond even what our Constitution has to offer.