Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) by Kevin R. C. Gutzman Page B
Authors: Kevin R. C. Gutzman
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could be used to refer to a state government (as in "The state of Georgia was a party to Chisholm v. Georgia"); or
it could refer to the sovereign people of a state (as in "The state of Virginia ratified the Constitution"). Federalists were reading the word state
purely as referring to state government. The Virginia Resolutions used the
word state to refer to the sovereign people of Virginia. In saying that the
Union was a union of states, Republicans understood that the Union was
a union of sovereign peoples: the people of Delaware, the people of North
Carolina, the people of Maryland, the people of Rhode Island, and so on.
Most history and legal textbooks say that Jefferson and Madison
invented the idea of state sovereignty. But as we've seen, they only argued
for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders (the nationalist and monarchist wings) wanted to change that understanding.
In the end, what Thomas Jefferson had predicted to John Taylor of Caroline proved to be true, or at least partly true. The Republicans won the
election of 1800, and the Federalists lost control of Congress and the
executive branch forever. The Sedition Act expired at the end of John
Adams's term. Jefferson hoped that this sweeping victory-Republican
vindication-meant that constitutional squabbles would now come to an
end.
Chapter Five
THE IMPERIAL JUDICIARY:
IT STARTED WITH MARSHALL
efferson's victory was supposed to inaugurate a new era of strict
constitutional interpretation, putting an end to presidential, congressional, and judicial usurpations of power. It certainly wrought
a radical change in the programs and policies of the federal government. Shortly after his inauguration, Congress repealed all internal taxes,
so that the only sources of federal revenue would be tariffs and sales of
federally owned land. It also slashed the military budget dramatically.
Unlike modern "budget-cutting" politicians who claim to "slash" government spending while merely reducing its rate of growth by a point or two,
Jefferson's Republicans ultimately eliminated all seagoing vessels from
the navy and cut the army's manpower by nearly 95 percent.
The loathed Sedition Act expired on the last day of John Adams's
administration, and Jefferson not only pardoned everyone convicted
under it, but also returned the fines they had paid. (No historian has ever
thought to question whether Jefferson had constitutional authority to
refund fines paid by felons.)
Republicans also acted to rein in the federal judiciary. The last Federalist Congress had passed the Judiciary Act of 1801, expanding and reorganizing the judicial branch. Republicans hooted that the act was a
nakedly partisan attempt to pack the courts with Federalists just as the
people were throwing them from elected office.
Guess what?
-.' Supreme Court chief
justice John
Marshall had the
nerve to tell one of
the framers of the
Constitution that he
had been flat-out
wrong!
-40 Based on Marshall's
flawed reasoning in
McCulloch v
Maryland, President
Andrew Jackson
almost invaded
South Carolina.
-.' The phrase "high
crimes and
misdemeanors"
refers to the holders
of high offices-a
fact that Marshall's
Federalist cronies
conveniently
ignored.
One myth about this act, popularized by Republican propagandists at
the time and echoed by professional historians even now, is that John
Adams filled all the new posts established by the Judiciary Act with dedicated Federalists. In fact, Adams did not; some were not Federalists at
all. But the run of professional historians and legal scholars, as this book
should make apparent, rarely do their
homework.
In any event, the Jeffersonian Republican Congress not only repealed the Judiciary Act of 1801, but, on April 23, 1802,
it also passed a law proroguing the
Supreme Court for fourteen months to
ensure that before it returned
it could refer to the sovereign people of a state (as in "The state of Virginia ratified the Constitution"). Federalists were reading the word state
purely as referring to state government. The Virginia Resolutions used the
word state to refer to the sovereign people of Virginia. In saying that the
Union was a union of states, Republicans understood that the Union was
a union of sovereign peoples: the people of Delaware, the people of North
Carolina, the people of Maryland, the people of Rhode Island, and so on.
Most history and legal textbooks say that Jefferson and Madison
invented the idea of state sovereignty. But as we've seen, they only argued
for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders (the nationalist and monarchist wings) wanted to change that understanding.
In the end, what Thomas Jefferson had predicted to John Taylor of Caroline proved to be true, or at least partly true. The Republicans won the
election of 1800, and the Federalists lost control of Congress and the
executive branch forever. The Sedition Act expired at the end of John
Adams's term. Jefferson hoped that this sweeping victory-Republican
vindication-meant that constitutional squabbles would now come to an
end.
Chapter Five
THE IMPERIAL JUDICIARY:
IT STARTED WITH MARSHALL
efferson's victory was supposed to inaugurate a new era of strict
constitutional interpretation, putting an end to presidential, congressional, and judicial usurpations of power. It certainly wrought
a radical change in the programs and policies of the federal government. Shortly after his inauguration, Congress repealed all internal taxes,
so that the only sources of federal revenue would be tariffs and sales of
federally owned land. It also slashed the military budget dramatically.
Unlike modern "budget-cutting" politicians who claim to "slash" government spending while merely reducing its rate of growth by a point or two,
Jefferson's Republicans ultimately eliminated all seagoing vessels from
the navy and cut the army's manpower by nearly 95 percent.
The loathed Sedition Act expired on the last day of John Adams's
administration, and Jefferson not only pardoned everyone convicted
under it, but also returned the fines they had paid. (No historian has ever
thought to question whether Jefferson had constitutional authority to
refund fines paid by felons.)
Republicans also acted to rein in the federal judiciary. The last Federalist Congress had passed the Judiciary Act of 1801, expanding and reorganizing the judicial branch. Republicans hooted that the act was a
nakedly partisan attempt to pack the courts with Federalists just as the
people were throwing them from elected office.
Guess what?
-.' Supreme Court chief
justice John
Marshall had the
nerve to tell one of
the framers of the
Constitution that he
had been flat-out
wrong!
-40 Based on Marshall's
flawed reasoning in
McCulloch v
Maryland, President
Andrew Jackson
almost invaded
South Carolina.
-.' The phrase "high
crimes and
misdemeanors"
refers to the holders
of high offices-a
fact that Marshall's
Federalist cronies
conveniently
ignored.
One myth about this act, popularized by Republican propagandists at
the time and echoed by professional historians even now, is that John
Adams filled all the new posts established by the Judiciary Act with dedicated Federalists. In fact, Adams did not; some were not Federalists at
all. But the run of professional historians and legal scholars, as this book
should make apparent, rarely do their
homework.
In any event, the Jeffersonian Republican Congress not only repealed the Judiciary Act of 1801, but, on April 23, 1802,
it also passed a law proroguing the
Supreme Court for fourteen months to
ensure that before it returned
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