The Brion McClanahan Show - Ep. 1323: A Repubic If You Can Keep It

0:00Visible puts unlimited 5G data and hotspot in the palm of your hand, powered by Verizon's 5G network, with no contract holding you back. And for a limited time, you can get visible for just $19 a month for 12 months when you use promo code Save6. All the features of Big Wireless Service, for half the cost. Tap the banner to switch today. Terms apply, standard rate applies at month 13, see visible.com for plan features and network management details. Fall has never looked or tasted this good. Sweet Greens Fall Harvest Menu is back with seasonal favorites dressed to impress and made to be devoured. Warm roasted sweet potatoes, crisp apples, maple glazed brussels, and crave worthy flavors in the autumn harvest bowl, maple glazed salmon plate, and roasted bacon brussels side. The season's most desirable menu has returned to sweet green. Featuring falls best dressed. Make your move, order on the sweet green half.

1:26Get the book that Kevin Goodspin called the single best volume on original intent ever written. My Founding Father's Guide to the Constitution It is THE book when people ask me what's my favorite. That's the one. Pick it up wherever books are sold online and get a real education on the Constitution. A republic if you can keep it. We'll talk about that on this episode of the Brian McLean Handshow. It's time to think locally and act locally. Welcome to the Brian McLean Handshow. Welcome back to the Brian McLean Handshow.

2:34Glad to be back on the show. I had an element in my friend and me in Bill Watkins. I focus on material that I disagree with. It's fun. We started off the show with the vlogging through history nonsense. Talking about the loss cause and how these people don't understand what the original meaning of that was. I know that it's changed over time and all this stuff. But at the core, right? If you think about the loss cause and what they'll say about it, one of the things they will articulate is that, well, you all believe succession is legal. It's not legal. It's not constitutional all this stuff. That somehow all these arguments were just simply made up after the war is over or during the war that somehow succession came out of nowhere.

3:35Now, when I was commenting on the Wallace video and I talked about Mr. Beat, the beginning of that video when he talks about the war mentions Northern succession, the Essexunto. Of course, then you get the heart for convention. Mr. Beat, well, why is he talking about South Carolina? I don't want to do so. So you're 1830. Well, because that would often be used as a way to say, well, this was just a southern thing that it wasn't an American thing. That's why. You show that this was an American belief, not just southern, but American, and it puts it in context. Visible puts unlimited 5G data in hotspot in the palm of your hand, powered by Verizon's 5G network, with no contract holding you back. And for a limited time, you can get visible for just $19 a month for 12 months when you use promo code Save6. All the features of Big Wireless Service for half the cost.

4:37Tap the banner to switch today. Terms apply, standard rate applies at month 13. See visible.com for plan features and network management details. Fall has never looked or tasted this good. Sweet Greens Fall Harvest Menu is back with seasonal favorites dressed to impress and made to be devoured. Warm roasted sweet potatoes, crisp apples, maple glazed Brussels, and crave worthy flavors in the autumn harvest bowl, maple glazed salmon plate, and roasted bacon Brussels side. The season's most desirable menu has returned to sweet green. Featuring falls best dressed. Make your move. Order on the sweet green app. And as I talked about on the Abbeyville Institute podcast this week, there's a co-gent C to the quote-unquote loss clause narrative. In other words, it's all true. Southerners are saying the same thing before, during and after the war. And that before the war part is essential when you start talking about the Constitution and the compact fact of the Constitution.

5:39I know that we often see theory. It's not a theory. It's a fact. Now one of the things I'm working on right now is a new class at McLean and Hennacott on the Webster Hain debate, which I say is the Hain Webster debate because Hain actually won the debate. Even when polling was taken at the time, when newspapers were writing about this, Hain was considered to be the winner among many of the papers. It's just that historians later on have given that trophy to Daniel Webster, and I think unjustifiably so, because he really doesn't say anything in it. Except some flowery language. But so I'm doing that also as I'm putting this out, and I said yesterday I was going to have a hard release on this. I'm doing a soft release now. I have that new book out. Good Amazon, get it. But you'll be seeing more about that next week. It is my latest book, The First Book I've Published since 2021. And it is a collection of over 70 essays in favor of ratification of the Constitution.

6:43It's called The Essential Originalist Papers. You can get it at Amazon, eBook, or paperback. Maybe at some point I'll do a hardback version of it. But right now you can get the paperback. And also, it's the last time as I'm doing this. You've got a couple of days left to pick up how John Marshall screwed up America for over 50 percent off. You've got that. Just use the coupon code Marshall if you want to pick it up, just putting that in. And you can also use the coupon code Labor Day and get 40 percent off every class at McLean Hand Academy right now. There's a lot of ways to save at McLean Hand Academy. Some cool stuff. I am going to be working on some other books. I've decided I'm going to go back to doing that a little bit too. So there's a lot of things going on, a lot of stuff I'm working on. But I keep this podcast going for you. This is all the free content you get. And I do want to talk about this, right? This is Bill Watkins again at Chronicles Magazine. I was singing the praises of American Conservative last week. And I'm singing the praises of Chronicles this week. Great stuff. And Bill will be speaking. We're having an Abby Villan City conference in February of next year on John C. Calhoun.

7:47Bill will be there. You want to see Bill come on out. We've got a lot of great speakers already lined up for that. There will be an announcement for that coming very soon as well. And I mentioned the summer school yesterday. That's also coming. And then we have another conference in October next year. That will be coming in announcement too. So a lot of things going on right now behind the scenes. But we know September 17th. And that's why I'm doing a hard launch next week because I'm going to focus on the Constitution all week next week. It'll be, you know, this, right? It'll be this kind of stuff. I might even talk a little bit about the book. Focus on what's in that. Maybe some of the essays. But September 17th is Constitution Day. It's a dumb name for it. I mean, the Constitution might have been signed that day in Philadelphia, but it didn't have any effect until it was ratified. And even Madison would later say, you know, the only thing that matters are the ratification debates, which is why I have those essential originalist papers. That's what it's all focused on. So you need to get that.

8:48I think you'll really enjoy it. But he says, September marks the 239th anniversary of the US Constitution, which described the limits of federal power and a government representing the will of the people. We can still return to the Constitution's original meaning and curb the growth of the administrative state. I would hope it's still there. And this is the other way, right? I've mentioned the third way you've got, you know, Southern conservatism, which really does rely on the original Constitution. The core of that is federalism. But you got to believe in the 9th and 10th amendments, more importantly, the most importantly, the 10th amendment. These are things you have to believe in. And you cannot believe in Lincolnian America because that, I mean, unquestionably destroyed it. That, and of course, the new Constitution, which is the 14th amendment. So to get back to that would mean you have to abandon Lincolnianism. It's essential.

9:49That's the other way. You see, anyone that calls themselves a conservative and as a Lincolnian doesn't get it. Now, you could argue that Lincoln's assassination was a disaster for the South. And I don't think there's any question that things might have gone differently. Had Lincoln survived reconstruction. But of course, Lincoln only received 40% less than 40% of the popular vote. People didn't like him. So that's, you know, that's a whole another story. But let's get into the into the piece. He says an appreciation of the Constitution's role in fashioning the American Republic must begin with the American Revolution. More precisely, the impetus for the revolution, the literature of the period yields one over each overarching theme, self-government. This is true. Self-determination, self-government. But in reality, it's the fact that the colonies had their own legislatures. This is the real issue.

10:50The colonies had their own legislatures. That was their main complaint. You see, they didn't need a parliament because they already had legislatures. They didn't need this other stuff because they already had it. They didn't need parliament legislating for them when they could pass their own tax policies, their own spending, their own laws. They could do all of this stuff and do it better because of course, they were closer to the people that they represented, which they had no representation also in that parliament in London. But that really, I mean, there were conceptualizing federalism in this time. Jack Green has written a lot about that. And so, I mean, this is essential for understanding the American War for Independence. Bill says, in the wake of the Seven Years War, a great Britain found itself struggling under a massive national debt. Now, surprisingly, Britain's new king, George III, and his ministers looked to the North American colonies to make greater financial contributions and to submit to more imperial oversight.

11:55The Ministry reasoned that the colonists benefited more from the mother country by territorial gains than the defeat of the French and Indian forces in North America. So they had to pay more taxes, right? I mean, we did this for you. We beat the French and the French and Indian War. Hey, and you all started it anyways. George Washington started it. So you better pay for it, right? We've spent a lot of blood and treasure in beating the French. What the Ministry cannot calculate was the long-term effect of Sir Robert Walpole's policy of salutary neglect. As Prime Minister from 1721 to 1742, Walpole implemented a policy in which great Britain laxly enforced regulations governing the colonies and encouraged the colonies to be self-sufficient. Walpole believed that so long as the colonies were at peace and governed by local laws, ensuring domestic tranquility, the Colonials and British merchants would enjoy prosperity. Of course, before Walpole, the British government had encouraged the creation of local representative assemblies.

12:55The assemblies were an integral part of the colonial government with the lower houses functioning much like the House of Commons. And all this is true, right? I mean, look, 1619, what's the importance of 1619? Oh, that's the 1619 project. That's when the first, that was the first founding of America. No. It's when we had our first legislative assembly in the English at that time, North American colonies in Virginia. It's also the first Thanksgiving, English Thanksgiving. I'll qualify that. I don't know if people get really upset if I don't qualify it by saying English, but oh, the Spanish. It's for a English Thanksgiving in Virginia, two years before pilgrims even showed up. Well, had their Thanksgiving year before the pilgrims showed up, two years before they had their Thanksgiving. But regardless, 1619 first elected assembly in North America. So when local self-government began, now things were different.

13:57I mean, it's not like it was in the 18th century. But certainly they had these things, right? We often look to the Mayflower Compact as the first or the origin of American government, false. That's a bunch of Northern propaganda. Measures such as the Sugar Act, Stamp Act, and Townshend Act prompted protests. The difficulty behind such protests was the question of how to limit a body claiming unlimited power. Parliamentary sovereignty was a bedrock of the British Constitution. Parliament could make or unmake any law as it saw fit. This is all true. There's only written Constitution. So it's a Constitution, but it's an unwritten Constitution. And the parliament would just pass legislation. And the courts would figure out if it follows the common law, if it fits with the tradition. But if the courts were obnoxious, the House of Lords could knock it down. You see. But this is the way the system worked in Britain,

15:00which is in contrast to a written Constitution where they're supposed to consult the Constitution. Is it is the power granted? Is it delegated? Is it expressly delegated? Is it enumerated? They were supposed to bait this. Calhoun actually talks about this near the end of his life in the 1840s. When he says, you know, it used to be we'd come into this body and we talk about the Constitution. We debate it. Is this in the Constitution? He said, we don't do that anymore. This is the 1840s. We don't do this anymore. We don't talk about that stuff anymore. We just pass whatever we want. Well, I thought all this was lost cause propaganda, you see. But that is the conflict. It's the rub. So Calhoun had said over and over, look, we pass unconstitutional this. We pass unconstitutional that. We can do this unconstitutional. The Constitution is no restraint on government anymore. It is broken.

16:01It doesn't work unless we have real teeth in the 10th Amendment. The Calhoun is ultimately relied on to minion theory where by the king was the chief executive of an empire governed by various legislatures. What we might describe as imperial federalism. Consequently, Thomas Jefferson and his influential 1774 pamphlet, some review of the rights of British America declared Sunday acts of parliament void because quote, the British parliament has no right to execute authority over us. Legislative power on the colonies, Jefferson reason, resigned in the 13th Amendment, and now on the colonies, Jefferson reason, resigned in the 13 legislatures. Because of dominion theory, the Declaration of Independence focused primarily on the king's failure to come to the colonist aid as they suffered under acts of parliament. Parliament barely merited a mention in the Declaration with the simple reason that the colonists had by 1776 rejected all parliamentary authority. Let me write this one paragraph. They blast parliament in one paragraph. Now, the other thing about the Declaration

17:01is it follows very much in line with the English Bill of Rights. The format and structure is the same. This is what they knew. This was the ancient constitutions. They're doing the exact same thing as an indictment of the king. Just as the English Bill of Rights is an indictment of the king. It's indictment of James II. The Articles of Confederation, the first draft of which presented to Congress just eight days after the adoption of the Declaration formalized a firm league of friendship among the states. Under Article II, each state retains its sovereignty, free of minute dependence, and every power, jurisdiction, and right not expressly delegated to Congress. In the words of historian Samuel Eliot Morrison, the articles with the best instrument of federal government adapted anywhere up to that time. Adopted, I should say, anywhere up to that time. Yes, Samuel Morrison. I mean, he's one of these old historians, mid 20th century historians who, and he was just a good, honest, solid historian. He wasn't an activist.

18:02He was progressive, but he wasn't an activist. He wasn't doing anything like you would see with some of these dobes at right stuff today, or their books are thinly veiled, polemics at one finger and others. All they are designed to be activists to make a point, to do something. Look, now there's room for that. If that's what you want to write, I mean, you could criticize some of the books that I've written in that direction, as I have a clear bias in agendators. I mean, it's there. But I state that upfront. The problem with a lot of historians is they don't state it upfront. You just have to kind of understand what you're getting. You have to, you know, read through the politics to get through it. I mean, it's there. You just have to understand it's there. The biases are there. So you have each state retaining it's sovereignty freedom independence. It can't retain something it doesn't have.

19:03Who had the sovereignty? Was it the state legislature or the state? The people of the state? What was it? Even so, the articles are far from perfect. Defects emerged. Congress had no independent revenue source, lacked the requisite authority to regulate commerce, and was unable to assist the states when emergencies such as Jays rebelling and Massachusetts. These defects led to the grand conversion and Philadelphia and the Constitution of 1787. The current effect's average did not mean it departure from the theme of self-government in all 13 states, which molded American revolutionary theory and the articles. Delegates from the state strapped to the new Constitution as 12 years after the battles of Lexington and Concord, the literal firt shots of the revolution, hence the impetus for the revolution was not obscured by passage of time. In Fetalist 45, James Madison asserted if the new Constitution be examined with accuracy in the state, the Constitution be examined with accuracy in candor, it will be found that the changes which it proposes consist much less in the addition of new powers to the union than in the invigoration of its original powers.

20:04An examination of Article 9 of the Articles of Confederation bears us out. A cursory reading reels at a list of enumerated powers resembling the more familiar Article 1 sectionated the Constitution. So, and this is something that we have to understand about the Constitution. They took, they simply, you know, copied over a lot of language from the articles into the Constitution, meaning it maintained the same kind of powers. It wasn't a complete departure. It had the same powers, right? It's not new powers, it's invigoration of the original powers. That's key. Visible puts unlimited 5G data in hotspot in the palm of your hand, powered by Verizon's 5G network, with no contract holding you back. And for a limited time, you can get visible for just $19 a month for 12 months when you use promo code Save6. All the features of Big Wireless Service, for half the cost. Tap the banner to switch today. Terms apply, standard rate applies at month 13. See visible.com for planned features

21:05and network management details. Fall has never looked or tasted this good. Sweet Greens Fall Harvest Menu is back with seasonal favorites, dressed to impress and made to be devoured. Warm roasted sweet potatoes, crisp apples, maple glazed brussels, and crave worthy flavors in the autumn harvest bowl, maple glazed salmon plate, and roasted bacon brussel side. The season's most desirable menu has returned to sweet green. Featuring falls best dressed. Make your move. Order on the sweet green app. Anti-fetalists were suspicious of the Constitution and believed it created a consolidated government. Speaking of consolidation, the revolutionary generation meant the accretion of power into one point or within one entity. For example, one of the Constitution's framers, Luther Martin of Maryland, argued that Americans were losing truly federal powers, the basis of which were the 13 state government and the state government.

22:05Patrocene rena 1788 speech before the Virginia Ratifying Convention, similarly argued that the new Constitution would produce, quote, one great consolidated national government of all the people of all the states. End quote. That doesn't mean that's what it did, but that's what they worried about it would do. And this is where you have to get into the friends of the Constitution. The proponents of the document who said all of this is wrong. And this is where you have to get into the friends of the Constitution is wrong. It doesn't do any of that. The problem is you have people like Joseph Story and John Marshall and others, the nationalists after this thing is finally ratified through the bench codifying the fears of the anti-federalists. Joseph Story's commentaries on the Constitution flip the entire Constitution on his head. Because he would say, Patrick Henry said this, this is true. He uses the anti-federalist in a way to defend the Constitution. Yeah, the anti-federalists said, we're going to get this extensive,

23:05extensive powers. They're right. We're going to get that. The friends of the Constitution replied that Congress's powers were enumerated and primarily dealt with external matters, such as foreign commerce and diplomacy. The states retained the bulk of the power and most citizens' interaction with government authority would occur at the state and local levels. The powers delegated by the proposed Constitution, the federal government, are few and defined, Madison wrote in Fetalist 45. Those which are to remain in the state governments are numerous and indefinite. The formal will be exercised principally by external objects as war, peace, negotiation, and foreign commerce. And this is exactly how James Wilson sold at the State House Yard's speech in October of 1787, which I cover in the essential originalist papers. I also have Fetalist 45 in there too. I mean, it's all there. As for Henry's claims that the Constitution would make one amalgamated American people out of the several states, the Constitution's method of ratification proved otherwise. According to Article VII, the ratification, the conventions of nine states,

24:07salvage sufficient, for the establishment of this Constitution between the states are ratifying the same. That plain language reveals that the people of the several states and separate state conventions would accept to reject the Constitution. And who are parties to it? Madison asks that the Virginia ratifying convention, the people. But not the people as composing one great body, but the people as composing 13 sovereignty. Very important. So if you compare that with what John Marshall says, and McCulloch be Maryland in 1819, well, it's all just one people. Or Daniel Webster in 1830 and the Webster Hain debate, or take your pick, right? I mean, this is what they argue, but it's all wrong. And Marshall knew it because he was sitting in the same convention when Madison said this. In fact, made a speech in that convention, which, if you did a Marshall versus Marshall, Marshall in 1788 sounded a lot different from Marshall 1819 and 1821. If nine states ratified the document and four rejected it, the four non-ratifying states could start to contrarth their own course.

25:08Rhode Island and North Carolina were outside of the Union when the first Congress convened in New York City in March 1789. They were concerned about the lack of a bill of rights and did not join the Union until they were assured that amendments were forthcoming. Based on the method and theory of ratification, the Constitution is a compact, a contractor agreement among the states. In 1798, the Virginia resolution affirmed that the federal government resulted from the compact, to which the states are parties. And that Congress was bound by the delegated powers listed in the compact. By states' regimen, the people of each state acting in its highest sovereign capacity, not the government of the governments of the states or the states of geographic entities. And again, that's an essential differentiation to make. Because when you go back and read that and as we go through it in class, which hopefully you're going to take, that Webster Hayn debate class, when you go back through that and look at how Webster frames it, he talks about the state legislatures. But it was clear that it was the people of the states, not the legislatures.

26:09But this is convenient for Webster because he's saying, wow, we're just going back to the articles of Confederation if we follow the South Carolina doctrine, which is what he calls, which is purposely best representing some things. Scholars such as Yale, as Achille Lamar can see that the people of the several states ratified the Constitution. Amar contends, though, a contens, however, that the act of ratification was the world's largest corporate merger, which created a single indesoluble United people. Amar is a distinguished scholar, but his merger theory would have been declared heretical by citizens living at the time or ratification 100% true. I mean, there's no evidence of this, except for a couple of nationalists talking about it. But the fact is, nobody really believed that, North, South, Mid-Atlantic, no one believed it. Had the Friends of the Constitution advertised it as creating a single

27:09indesoluble United people, the state conventions, whatever rejected the plan of government, that's 100% true. They never would have ratified it. But that's not something you're allowed to say. Again, co-gencies, because when you get to the 18th, well, look, just get to the early 19th century, New England is saying this kind of stuff. Then you get to the 1820s and 30s and South Carolina begins to say these things. Same with Virginia, the old Republicans said a lot of this stuff. I mean, John Taylor never stopped saying these things. Nor did, in the 18th century, it's Jefferson and Madison, and then you get the New England Federalists and the early 19th century, that moves back to the old Republicans again, and then, of course, a South Carolina doctrine, and then you get into southerners really carrying this mantle forward until we get to the period after the war, and we get the 14th Amendment, which supposedly did some things that didn't do. But that's where it all comes from. There's co-gencies again. It's the same arguments, and it was the American position, not just the southern.

28:09Indeed, multiple state ratifying conventions declared that the states could resume the powers delegated to the general government. Such decorations would have been feudal and if resumption required, the consent of the amalgamated people as a whole. As John Taylor of Caroline noted, in his 1820 book, Construction Construed in Constituations, vindicated, quote, now, a single one of the United States would have consented to have dissolved its people, to have reunited them into one great people, so ignorant of local circumstances, and so different in local habits. Again, very true. They never would have done it. Taylor also had the great line, you know, America for Americans, is like Utopia for Utopians. One of my favorite lines ever. It didn't exist. Popular sovereignty, I, the people holding ultimate authority, is a core principle of Republican government, writing to Taylor in 1816, Jefferson defined Republican government as follows. Quote, we may say with truth and meaning that governments are more or less Republican

29:09as they have more or less of the element of popular election and control in their composition. And believing as I do that the mass of the citizens is the safest repository of their own rights. As ultimate sovereigns, the people have the power to erect a government, alter it, and abolish it. Officers of government exercise delegated powers. They are the agents and the people are the principles. Now, for Calhoun, that would then move forward into the states being the principles of the general government in the Constitution, the people of the states. The government is just an agent of those things. It didn't have any sovereignty. You get, you get Marshall talking about the US government having sovereignty. It has none. It has zero sovereignty. Now, oh, wait a second, McLean, a hand, because control over Washington, D.C. is a sovereign entity. Well, it has powers over Washington, D.C. It can't create Washington, D.C.

30:10Washington, D.C. Washington, D.C. is spelled out in the US Constitution. So, it doesn't really have sovereignty. It has powers. The states, though, the people of the states have sovereignty, because they can make and unmake things. They can unmake the entire US government. Not even Daniel Webster or Abraham Lincoln would disagree with that. Jefferson also described the mother principle of Republican government as the government's embodiment of the will of the people and the execution of that will. This occurs when the people gather in townships and exercise direct democracy. It also occurs when the people choose representatives, and these representatives vote in the sense of their constituents. Another improvement of the articles was the Constitution's creation of three separate departments, exercising distinct powers. Political science, M.J.C. Vial wrote in Constitutionalism and the separation of powers, quote, a doctrine of separation of powers is clearly committed to a view of political liberty. The central part of which is the restraint of governmental power,

31:11that this can be best achieved by setting up divisions within the government to prevent the concentration of such power on the hands of the single group of men. Confederation had no executive branch, and Congress could only create courts to handle certain maritime matters. The Constitution of 1787, in contrast, provided for coordinate legislative executive and judicial branch. Branches. So, therein comes the problem, right? The judicial branch. What is that thing? Is it really supreme? We have the Supreme Court. Is it supreme over everything? Is it supreme over the Constitution? Or is it just supreme over the federal courts? Is it supreme over the state courts? Are these courts, are these state courts and inferior courts? Or are they co-equal courts? It's a big question. As judicial power developed at challenged traditional assumptions about Republican government, and the equality of the branches, judicial review naturally flows from principles of popular sovereignty and was accepted in various state courts long before Marbury V. Madison in 1803.

32:12Judicial review is the power of courts to examine decisions of another department or level of government. Judicial supremacy on the other handholds that courts are the final arbiters of the Constitutional's meaning, Constitution's meaning. As Constitutional commenter, Alexander Bickel noted in the Supreme Court in the idea of progress, quote, and, politically, supreme judicial autonomy is not easily reconciled with any theory of political democracy, Madisonian, or majoritarian. So, again, judicial supremacy means that you have the final arbiters of the Constitution's meaning. So, a martial telegraphed judicial review in his 1788 speech in the Virginia Radifying Convention, but he was not so open about judicial supremacy. And in fact, he talked a lot about, you know, state and federal courts being co-equal courts. These are things that he mentioned, but Marshall on the bench of the Supreme Court is different than Marshall trying to get the Constitution ratified. So, why can says judicial review exists comfortably

33:13in a departmental system, part mentalist system, as advocated by the Jeffersonians. Each branch of the federal government, Jefferson insisted, has an equal right and duty to interpret the Constitution for, for itself, when carrying out its own constitutional tasks. But judicial supremacy Jefferson believed would place Americans under the despotism of an oligarchy. He further realized that the judges, power is the more dangerous as they are in office for life and not responsible as the other functionaries are to the elective control. The immense power and lack of accountability the people arguably render a non-departmentalist federal judiciary and anti-republican branch. Again, very true. You have no control over this branch. You can say, well, we can imagine you can say, well, we can, I mean, judges retire, you can appoint new ones, and of course, they have to be confirmed. But, and you can impeach them, but that's, that has no teeth. It has no teeth because, well, the Republicans botched the impeachment of Samuel Chase, which he should have been impeached because he was drunk on the bench

34:14and doing all kinds of, I mean, partisan decisions. But, I mean, look, I think, I think Marshall was generally scared about this and what it would mean. But, once there was no way to get rid of these judges, which there isn't. I mean, the bar is so high to prove, you know, high crimes and misdemeanors for the Supreme Court judges. It should be that, if you abuse your authority, you should be able to be removed from the bench, and that would be most of what the Supreme Court does. This should have to go. But, he says, as originally ratified, the Constitution contained no declaration of rights, staunch federalists, and not one was necessary. James Wilson, for example, argued that bills of rights were proper and state constitutions, in which the people, quote, invested their representatives with every right and authority, which they did not explicit terms reserved. The federal constitution, Wilson of Eard, was different. Absent and expressed delegation of power, the federal government could not act, quote, would have been superfluous, and absurd to have stipulated with the federal body

35:14of her own creation, Wilson proclaimed, that we should enjoy those privileges of which we are not divested, either by the intention of the act that has brought the body into existence. So, we need it at the state level, but not at the federal level, because it only has a numerated powers. It doesn't have all these extensive powers that people think it has. It doesn't have any of that. So, the federal government is unnecessary. It has the numerated powers. You don't have to protect against anything, because it can't do anything beyond those powers. Most scholars describe the anti-fellowist insistence on a bill of rights, and the amendments offered to the states is a victory for American liberty. And I mean, look, I think you could argue otherwise, and actually, what Kins is going to do that, in some way. In truth, prior to the Civil War, the only congressional action struck down by the court

36:14on bill of rights grounds was Red Scott B. Sanford, a decision that receives little acclaim in the academy and legal profession. Starting in the 1920s, the court began using the 14th Amendment to incorporate provisions of the bill of rights against the states. Thus, the court undermined local self-government by employing the bill of rights as a club against the states, rather than a shield to protect the states and the people from federal overreach. And this is true. Once the federal government started using the 14th Amendment to hammer the states, it changed forever the nature of the central government. It made it something else. And that's key to understand. Visible puts unlimited 5G data and hotspot in the palm of your hand, powered by Verizon's 5G network, with no contract holding you back. And for a limited time, you can get visible for just $19 a month for 12 months when you use promo code Save6. All the features of Big Wireless Service, for half the cost. Tap the banner to switch today. Terms apply, standard rate applies at month

37:1413. See visible.com for plan features and network management details. Fall has never looked or tasted this good. Sweet Greens fall harvest menu is back with seasonal favorites dressed to impress and made to be devoured. Warm roasted sweet potatoes, crisp apples, maple glazed Brussels, and crave worthy flavors in the autumn harvest bowl, maple glazed salmon plate, and roasted bacon Brussels side. The season's most desirable menu has returned to sweet green, featuring fall's best dressed. Make your move, order on the sweet green app. Due to this twisting of the Constitution's original intention, a foreign visitor, ignorant of American history and limited to real-time observation, would be unlikely to describe self-government as the key principle of American constitutionalism. More likely, he would conjecture consumer consumption, debauchery or victimhood as apologies to Reggie Jackson, the straws that stir

38:14the drink of American government. It is degraded, and its degraded modern condition, are federal republic looks and acts at best like a typical European-style unitary state, 100%. At its worst, it resembles an African kleptocracy, or South American banana republic. The visitor will be hard-pressed to list more than two or three items beyond the control of Washington DC. This is all true. And it has the long and tentacles of, you know, you can do just about anything it wants. And part of that is because it can interfere in your life personally, right, through taxes and other things. It has direct control of our lives. Watkins says, loose construction of the Constitution and wrote of the documents intended limits on the general government, that started early in our history. For example, in making the case for a national bank, Alexander Hamilton, Alexander Hamilton argued that because the federal government had the powered tax, it could create a financial institution,

39:14a joint private sector in public endeavor, in which it deposit funds. He ignored that the Philadelphia Convention specifically chose not to grant Congress the power to charter corporations, and that state charter banks could have held funds for the Treasury Department. You have that didn't matter. I mean, look, Hamilton wanted this bank when he was in Philadelphia. And Madison had a long walk and they talked about it, and they decided to leave it out. But Hamilton thought it fell under the necessary and proper clause, and the Supreme Court eventually upheld it under the necessary and proper clause. The arguments for the quote-unquote loss clause, excuse me, go back long before 1860. However, why it's true that a grant of power is accompanied by those incidents that are necessary for the grant to have effect, Hamilton's interpretation transformed the idea of necessity into simple convenience. As a great Virginia judge of Pensor Rowan wrote in the

40:14Richmond Aquire in 1819, quote, that man must be a deplorable idiot, who does not see that there is no earthly difference between an unlimited grant of power and a grant limited in its terms. But accompanied with unlimited means of carrying it into execution. Now, this gets into the nature of the term necessary, and of course, Marshall focused on that a lot in language. That's a textualist argument. What does necessary mean? Is it absolutely necessary or somewhat necessary or and this is what Hamilton did with Jefferson too. When Jefferson opposed the bank, Hamilton wrote his defense of it, and took Jefferson out on that thing, and Washington believed him. Liberal construction became gospel for the Marshall Court, proponents of the Henry Clay's American system, and Abraham Lincoln's Republican party. They rejected the American exceptionalism of a federated Republican favor of the power and prestige supposedly enjoyed by European countries. This triumvirates loose construction set the

41:14stage for the progressive era, the New Deal, the great society, compassionate conservatism, and our $39 trillion national debt. And all that is true. Liberal construction. And as Southerners said, this was consolidation against states' rights. This was what it all came down to, because Liberal construction is consolidation. They said as much. It's consolidation. On a positive note, American unitary status have not bothered to repeal our original constitution and adopt a document better suited to their purposes of expanding national power and diminishing state authority. Consequently, we retain the document the founders created as our fundamental law. An opportunity still exists to rally around the instrument and to insist on the interpretation demanded by St. George Tucker in 1803, and his 1803 commentary on the US constitution. Quote, this is where he ends. The power is delegated to the federal government, or in all cases, to receive the most strict

42:14construction that the instrument will bear, where the rights of a state or the people either collectively or individually may be drawn into question. End quote. This is a really good piece, and I think a nice way to end the week, as we go into next week, and I'm going to talk a lot more about the constitution. Bill has a book out. It's on the Constitution. If you just look at William Watkins at Amazon, you'll find the book. It's a great book. I talked about it on this show, but going out and, again, search for William Watkins at Amazon. You can get his book on the Constitution, along with mine, right? If you search my name at Amazon, it's going to come up the essential originalist paper. So go ahead and pick that up too. I'm going to go ahead and pick up the book. I'm going to go ahead and go ahead and pick that up too. But. See you next week on The Brian McLean Hand Show. See you then. I'm on my way home Back to where I've been long, I've been too long Go, I'm on my way home.