Dispelling Constitutional Myths

by Jim Langcuster

Liberals would like us to believe that "spin doctoring" is a recent phenomenon, a byproduct of the electronic age. That, of course, is nonsense. Spin doctoring is a sacred American art form-- as old as the American republic itself -- and when I reflect on the legions of American youngsters who have been bamboozled by such chicanery in the public schools, I get sick to my stomach.

Like many of you, I, too, am a recovering victim of such hucksterism, having completed a total of 18 years in publicly supported grade schools and universities. I can still remember the starry eyed zeal with which one history instructor expounded on the cases of Marbury vs. Madison and McCollough vs. Maryland, the so-called "landmark rulings" wherein Chief Justice John Marshall contrived his constitutional doctrines of judicial review and federal primacy.

Marshall's doctrines, by and large, were tame by late-twentieth century standards. Nevertheless, they served as precedents for many of the other "doctrines" handed down later that have led to a virtual extinction of state sovereignty. Needless to say, this explains why they are accorded to much adulation in public high schools and college history courses.

Equally memorable was my history instructor's lecture on the nullification crisis depicting Andrew Jackson as the heroic defender of the Union bravely facing down Calhoun and other odious "slavocrats" and disunionists.

Truth is, both of these accounts are prime examples of great lengths many professional historians take to distort the truth --which isn't surprising, considering the legions of historians who have made careers subsisting off federal patronage. Yes, shlepping for Leviathan comes at a price.

What the vast majority of students don't know is that Marshall's opinion in Marbury vs. Madison really boils to a misreading, if not a downright distortion, of the Framers' original intent. True, nationalists at the Constitutional Convention had called for empowering the Supreme Court with a judicial veto, a form of judicial review, over the acts of Congress, but it never passed muster.

Nationalists twice introduced a clause that would have empowered Congress to strike down state legislation deemed in conflict with the U.S. Constitution. On both occasions it was voted down -- resoundingly. There is not a single clause in the U.S. Constitution calling for congressional or judicial review of the constitutionality of state laws -- not one.

In fact, the Tenth Amendment to the Constitution clearly implies that states are to remain the sole judges of their reserved powers. That's what states rights, that oft-abused, misunderstood term is all about-- at least as far as Thomas Jefferson and James Madison were concerned.

Marshall, in fact, established judicial review through a broad construction of English common law traditions, notwithstanding the fact there isn't one clause in the Constitution delegating such power to the courts.

Likewise, Marshall's much-extolled opinion in McCollough vs. Maryland asserting that the people of the United States comprised "one people" also amounted to a vast distortion of the facts. As James Madison's "secret" Journal of the Grand Convention clearly shows, the Framers' intention was for the Constitution to be adopted by thirteen separate ratification conventions representing the people of the states, not the American people in their corporatecapacity.

The first draft of the Constitution submitted by the Committee on Detail confirms this. True, it began with the memorable words "We the People...," but the phrase was immediately followed by "of the states of New Hampshire, Massachusetts...etc," clearly reflecting the Framers' vision of the Constitution as a compact adopted by the people of the thirteen separate states.

Further evidence is provided by the first paragraph of Article VII which reads: "The ratification of the Conventions of Nine States, shall be sufficient for the establishment of this Constitution between the States so ratifying the same." Note the phrase "between the States."

Only after the document was submitted to the Committee on Style for final editing was the phrase changed to "We, the Peopleof the United States..." Committee members obviously feared the first committee's draft of the preamble would lead to eternal embarrassment if recalcitrant states such as Rhode Island failed to ratify the document. Hence, the subtle editorial change.

The popularized account Old Hickory matching wits and willswith the Old Nullifier -- and winning -- is also short on facts and long on fiction. What thousands of high school and college history students never learn is that nullification worked -- that's right, worked. Shortly after South Carolina's nullification ordinance was passed, Congress, under the prompting of Henry Clay, rescinded the Tariff of abominations and passed new legislation substantially reducing tariff rates.

What's tragic is that literally millions of people will go to their graves never knowing there was a competing school of thought that squarely addressed all of the constitutional issues raised by Marshall et al. It's known by a variety of names --- the Virginia School, the States Rights School and the Jeffersonian School. Alexander Stephens preferred to call it the State Sovereignty School, which is my personal choice.

This school dominated public discourse throughout the first "four score and seven years" of American history -- that is, until the advent of a consolidating ex-Whig from Illinois by the name of Abraham Lincoln.

But that's another story.