WEBVTT NOTE The US Constitution 1 00:00:00.000 --> 00:00:15.000 Well, first thing I want to talk about is that this is a federal, US constitution from beginning to end on all four sides is a federal constitution. 2 00:00:15.000 --> 00:00:25.000 So something has to be said about federalism. Federalism is a very important, to me, it's the most important political idea as far as liberty goes. 3 00:00:25.000 --> 00:00:28.440 Because it seems to me liberty has two dimensions. 4 00:00:29.520 --> 00:00:31.600 One is personal liberty. 5 00:00:31.600 --> 00:00:35.620 First, and that means maximizing choices. 6 00:00:37.700 --> 00:00:41.560 For my life plans, I want to be able to maximize choices. 7 00:00:44.960 --> 00:00:48.160 But the other is, I'm not just interested 8 00:00:48.160 --> 00:00:51.960 in maximizing choices, I want meaningful choices. 9 00:00:53.160 --> 00:00:54.740 Because if I just do the first, 10 00:00:54.740 --> 00:00:58.740 I've got Sartre in liberty, which is being in nothingness. 11 00:01:00.820 --> 00:01:02.180 What do I mean by meaningful choice? 12 00:01:02.180 --> 00:01:05.740 What I mean is, and this goes back to the talk on Hume, 13 00:01:06.620 --> 00:01:10.180 choice presupposes a cultural background, 14 00:01:10.180 --> 00:01:11.940 which is usually not acknowledged. 15 00:01:11.940 --> 00:01:15.620 It's part of that task, that pre-reflective order 16 00:01:15.620 --> 00:01:17.180 that we don't think much about. 17 00:01:18.140 --> 00:01:19.940 So when we make choices, 18 00:01:19.940 --> 00:01:23.180 we make them against a cultural background, 19 00:01:23.180 --> 00:01:32.540 which gives our life meaning and it's to maximize choice for the individual against that background. 20 00:01:32.540 --> 00:01:38.760 Now what's going to protect that background? Well, in a federal system, which is usually 21 00:01:38.760 --> 00:01:50.140 over vast territory, you have units, provinces, cities, states, whatever, and they are the 22 00:01:50.140 --> 00:01:54.300 Units that Provide Legal Protection for Whole Ways of Life. 23 00:01:54.300 --> 00:02:05.460 So we've got individual choices for individual life plans, and then we have whole ways of 24 00:02:05.460 --> 00:02:14.140 life of a people that cut across generations, whole ways of life cutting across generations. 25 00:02:14.140 --> 00:02:19.060 Now, in a federal system you have to have tolerance, first of all you have to be tolerant 26 00:02:19.060 --> 00:02:24.900 of People Who Are Going to Make Choices for Life Plans You Don't Like. 27 00:02:24.900 --> 00:02:32.200 But also, you have to be tolerant of hallways of life that are legally protected in the system that you don't like. 28 00:02:32.200 --> 00:02:37.900 And these hallways of life go on for generation after generation. 29 00:02:37.900 --> 00:02:45.180 Therefore, federalism is the most difficult system to maintain because it requires enormous civic virtue. 30 00:02:45.180 --> 00:02:49.060 You have to constrain yourself from suppressing this whole way of life, 31 00:02:49.060 --> 00:02:54.660 either because it's not in your interest or because you don't think it's morally correct. 32 00:02:54.660 --> 00:02:57.580 And the same with individual choices. 33 00:02:57.580 --> 00:03:01.580 So liberty, I think, has these two dimensions. 34 00:03:01.580 --> 00:03:04.900 One is individual liberty, the other I'll call corporate liberty. 35 00:03:04.900 --> 00:03:09.660 The corporate liberty, the whole way of life. 36 00:03:09.660 --> 00:03:14.740 Now in the American context, it was the states that were to protect 37 00:03:14.740 --> 00:03:30.940 this have this corporate liberty and the individual had individual liberties under the state constitutions and then also privileges and immunities under the federal under the central government could move around from one state to another. 38 00:03:30.940 --> 00:03:34.940 As one of the characters in Huckleberry Finn says, he's sick of this government. 39 00:03:34.940 --> 00:03:40.100 He's going to move to a different government, going to move from Missouri to Illinois. 40 00:03:40.100 --> 00:03:46.500 Well, that's nice, because if there's a different way of life in Illinois, that's good for you. 41 00:03:48.900 --> 00:03:53.500 Okay, now, it seems to me that's the moral meaning of federalism. 42 00:03:55.000 --> 00:04:02.700 Now, the founders were, or those who formed the Constitution, were afraid of consolidation. 43 00:04:03.500 --> 00:04:09.300 Europe had been going through consolidation for centuries, and they were aware of this. 44 00:04:10.100 --> 00:04:24.100 They were trigger-happy about it. In other words, when they smell consolidation, they cock the hammer and they didn't mess around. 45 00:04:24.100 --> 00:04:34.100 The Anti-Federalists warned that if you accepted the federal government, limited though it was in this new constitution, that you would one day end up with a consolidated government. 46 00:04:34.100 --> 00:04:45.100 They would eventually destroy these whole ways of life, the legal protection for them, and things will be flattened out, and they were, of course, right. 47 00:04:45.100 --> 00:04:51.100 Now, what I want to do is run through the history of this process of how this flattening out occurred. 48 00:04:51.100 --> 00:04:59.100 So we're going to go from the beginning of the Constitution right up to the day. 49 00:04:59.100 --> 00:05:28.100 The Constitution just about didn't pass. 50 00:05:28.100 --> 00:05:35.500 As Wellington said of war, it was a damn close run thing. 51 00:05:35.500 --> 00:05:42.460 And Hamilton took up the question of whether this new central government in the ratifying 52 00:05:42.460 --> 00:05:47.240 convention of New York, whether this new central government would be able to coerce states 53 00:05:47.240 --> 00:05:50.260 who didn't comply with very subtle things. 54 00:05:50.260 --> 00:05:52.260 But of course not. 55 00:05:52.260 --> 00:05:54.540 There's no state. 56 00:05:54.540 --> 00:05:55.540 This would never happen. 57 00:05:55.540 --> 00:05:56.540 It would be civil war. 58 00:05:56.540 --> 00:05:58.540 We didn't set this thing up for a war. 59 00:05:58.540 --> 00:06:05.540 And he said, besides, no state would ever allow itself to be the agent of coercing another state. 60 00:06:05.540 --> 00:06:09.540 This was well understood. 61 00:06:09.540 --> 00:06:14.040 But nobody had explained exactly what that meant legally. 62 00:06:14.040 --> 00:06:18.040 The first people to do that were Thomas Jefferson and James Madison 63 00:06:18.040 --> 00:06:25.540 and the Kentucky resolutions written by Jefferson and the Virginia resolutions written by Madison. 64 00:06:25.540 --> 00:06:29.340 and to put it very shortly, they argued as follows. 65 00:06:29.340 --> 00:06:33.540 The Constitution is a compact between sovereign state 66 00:06:34.660 --> 00:06:38.020 who've delegated enumerated powers 67 00:06:38.020 --> 00:06:40.120 to the central government as their agent. 68 00:06:44.060 --> 00:06:48.100 These powers were mainly defense, foreign treaties, 69 00:06:48.100 --> 00:06:52.300 regulating commerce, right to punish counterfeiting and so on. 70 00:06:52.300 --> 00:07:12.300 Every other power, what the 18th century called police power, police power to regulate moral, religion, education, public health, all the rest of it, everything that shaped the human soul, everything that provided legal protection for a way of life, all of that was reserved to the states. 71 00:07:12.300 --> 00:07:23.660 Now, if the central government goes beyond its delegated powers, so the Virginia and 72 00:07:23.660 --> 00:07:33.300 Kentucky resolutions argue, only the states can say, have the final authority to say whether 73 00:07:33.300 --> 00:07:34.660 they have or not. 74 00:07:34.660 --> 00:07:39.300 No agency of the central government has this authority, the Supreme Court doesn't, Congress 75 00:07:39.300 --> 00:07:48.300 I'm not a personal executive because they're creatures of the states, in other words, they are collectively an agent of the states. 76 00:07:48.300 --> 00:08:05.300 So if they wander beyond their universal powers, they do not have the authority to say what those powers are, because they're the creatures of the compact. 77 00:08:05.300 --> 00:08:09.300 It makes perfectly good sense in contract theory. 78 00:08:09.300 --> 00:08:15.300 Agents don't tell the principals what their powers are. 79 00:08:15.300 --> 00:08:29.300 But this should be, so therefore a state, Madison said, as a corporate entity, has a right to interpose its authority as a sovereign party to the compact to block an unconstitutional action. 80 00:08:29.300 --> 00:08:31.300 Not only does it have a right to do that, 81 00:08:31.300 --> 00:08:38.180 Jefferson says it has a positive duty to do it because it took an oath to uphold the Constitution. 82 00:08:38.180 --> 00:08:43.900 So it intervenes between its citizens and the central government, it steps forth to 83 00:08:43.900 --> 00:08:46.460 block the evil. 84 00:08:46.460 --> 00:08:55.060 Now that is the only way centralization can be stopped, that's the only way. 85 00:08:55.060 --> 00:08:59.220 Now Jefferson said the same thing in the Kentucky resolutions. 86 00:08:59.220 --> 00:09:19.220 These were sent around, and they had to do with the Alien and Sedition Acts, I won't go into that, those were acts in which the Federal Government took authority over seditious libel and speech, and Jefferson Madison held that only the states had authority over those things, not the central government. 87 00:09:19.220 --> 00:09:26.220 They weren't opposed to sedition laws, it's just that the Federal Government had no authority to deal with that. 88 00:09:26.220 --> 00:09:32.820 Now, they didn't get much support from the other states. Some didn't reply, some did. 89 00:09:32.820 --> 00:09:40.460 Greenland states thought it was okay. Madison then wrote the Virginia Report, which you 90 00:09:40.460 --> 00:09:49.860 ought to read, 1799, which is an involved response to the states, all the objections. 91 00:09:49.860 --> 00:09:55.080 It's a very powerful document and should be better known. 92 00:09:55.080 --> 00:10:01.340 Now these two resolutions came to be known later on as the Principles of 98, and that's 93 00:10:01.340 --> 00:10:03.860 what I'll call them. 94 00:10:03.860 --> 00:10:09.360 And they were used throughout the Union and the antebellum period in every section to 95 00:10:09.360 --> 00:10:14.560 justify state interposition and nullification. 96 00:10:14.560 --> 00:10:20.180 Now Jefferson in his second version of the Kentucky resolutions uses the word nullification 97 00:10:20.180 --> 00:10:22.500 as the rightful remedy. 98 00:10:22.500 --> 00:10:27.660 Jefferson of Madison had used the word interposition so we have these two concepts and I'm not 99 00:10:27.660 --> 00:10:33.160 going to go into what exactly the difference is because we don't have much time. 100 00:10:33.160 --> 00:10:42.720 Okay now when Jefferson was in his first inaugural he reaffirms the principles of 98 straight 101 00:10:42.720 --> 00:10:53.160 Away. He says that essential to the American conception of government was, quote, the support 102 00:10:53.160 --> 00:10:58.760 of the state governments of all their rights as the most competent administrators for our 103 00:10:58.760 --> 00:11:06.560 domestic concerns and the surest bulwarks against anti-Republican tendencies, end quote. 104 00:11:06.560 --> 00:11:12.880 Now, that's a code word for centralization. Anti-Republican means centralization. 105 00:11:12.880 --> 00:11:17.440 The principles of 98 refer to the 10th Amendment as guaranteeing that all powers not delegated 106 00:11:17.440 --> 00:11:20.920 to the central government by the states are reserved to them, and Jefferson elsewhere 107 00:11:20.920 --> 00:11:26.760 described the 10th Amendment as, quote, the foundation of the Constitution, end quote. 108 00:11:26.760 --> 00:11:32.880 So he's clearly thinking of it as an instrument to protect whole ways of life, as well as 109 00:11:32.880 --> 00:11:35.520 individual liberty. 110 00:11:35.520 --> 00:11:46.520 It was on this foundation that he hoped in the famous phrase to bind the central government down by the, quote, chains of the Constitution. 111 00:11:46.520 --> 00:11:51.720 All right, let's see how the Kentucky resolutions worked, how the principles of 98 worked. 112 00:11:51.720 --> 00:12:01.920 Only a year after the government was formed, individuals began filing suits in the Supreme Court against states. 113 00:12:01.920 --> 00:12:05.560 Maryland, South Carolina, New York, Massachusetts, and a number of others. 114 00:12:05.560 --> 00:12:08.800 But only one of these states really resisted. 115 00:12:08.800 --> 00:12:13.600 What these suits meant was that the states weren't sovereign. 116 00:12:13.600 --> 00:12:17.560 In other words, the Supreme Court was not taking the states as sovereign individuals who sued Georgia. 117 00:12:17.560 --> 00:12:21.040 Then the court would take it on. 118 00:12:21.040 --> 00:12:26.840 In Chisholm v. Georgia, the executors of two deceased loyalists sued Georgia for a bond 119 00:12:26.840 --> 00:12:31.440 that had been given before the revolution. 120 00:12:31.440 --> 00:12:44.740 Georgia interposed and refused to appear in court on the grounds that it was a sovereign state and that under international law sovereign states couldn't be sued without their permission. 121 00:12:44.740 --> 00:12:52.440 The Supreme Court paid no attention to this, found for the plaintiffs and ordered that Georgia honor the bond. 122 00:12:52.440 --> 00:12:58.740 So already the center is beginning to flatten out. 123 00:12:58.740 --> 00:13:00.540 It's right away. 124 00:13:00.540 --> 00:13:18.440 So what did Georgia do? They refused. Not only that, the House passed a bill providing that any Federal agent who attempted to execute the order would be, quote, guilty of felony and shall suffer death without benefit of clergy by being hanged, end quote. 125 00:13:18.440 --> 00:13:28.940 And that's how you handle Federal agents in those days when giants walked upon the earth. 126 00:13:28.940 --> 00:13:37.700 Now here Georgia had interposed, what had happened legally was it interposed her authority as a sovereign state to block an unconstitutional act of the center. 127 00:13:37.700 --> 00:13:49.340 Other states watched this and they agreed and soon the 11th Amendment was passed making it unconstitutional for an individual to sue a state without its permission. 128 00:13:49.340 --> 00:13:51.980 That's how the federal system was supposed to work. 129 00:13:51.980 --> 00:14:10.980 Because suppose Georgia hadn't done that, and the court had kind of sneaked, some states were asleep, and this gets through, and no one notices it, and case law gets built up, and you've got wimpy states, and pretty soon they're just being sued, and it drifts off. 130 00:14:10.980 --> 00:14:14.980 No, it didn't. Georgia stopped it right away. 131 00:14:14.980 --> 00:14:21.980 Jefferson and Hamilton clashed over whether the states had delegated the central government the authority to form a national bank and other corporations. 132 00:14:21.980 --> 00:14:26.980 Hamilton won the first round, but the quarrel would continue with intermittent state resistance. 133 00:14:26.980 --> 00:14:33.980 Notably, right away from Ohio and Kentucky, both of which declared the Supreme Court's decision in McCulloch v. Maryland 134 00:14:33.980 --> 00:14:39.980 that the state could not tax a federal bank unconstitutional and nullify it. 135 00:14:39.980 --> 00:14:47.380 In 1825, the legislature of Ohio inquired of the governor the best method, quote, 136 00:14:47.380 --> 00:14:53.980 to refuse obedience to the decisions and mandates of the Supreme Court of the United States, 137 00:14:53.980 --> 00:14:56.980 considered erroneous and unconstitutional, end quote. 138 00:14:56.980 --> 00:14:58.980 What are we going to do, Governor? 139 00:14:58.980 --> 00:15:01.480 And then it went on to ask whether it, quote, 140 00:15:01.480 --> 00:15:06.980 might be advisable to call forth physical power of the state to resist the court, end quote. 141 00:15:09.980 --> 00:15:32.480 To understand how strongly some thought about this, about protecting these whole ways of life that their states had, or just their states if you don't like that expression, consider Jefferson's advice to the Virginia legislature on how to respond to the suggestion of opening a bank of the United States in Richmond. 142 00:15:32.480 --> 00:15:36.400 Now listen to this, Jefferson said they should reason as follows, quote, 143 00:15:36.400 --> 00:15:39.120 the power of erecting banks and corporations 144 00:15:39.120 --> 00:15:41.160 was not given to the general government. 145 00:15:42.680 --> 00:15:45.240 It remains then with the state itself. 146 00:15:47.120 --> 00:15:51.080 For any person to recognize a foreign legislature, 147 00:15:51.080 --> 00:15:53.440 namely the Congress of the United States, 148 00:15:53.440 --> 00:15:54.840 remember these are nations, 149 00:15:55.840 --> 00:16:00.840 Ohio is a foreign legislature relative to the state of Virginia, 150 00:16:00.840 --> 00:16:02.080 so is the Congress. 151 00:16:02.480 --> 00:16:09.680 To recognize a foreign legislature in a case belonging to the state itself is an act of treason against the state. 152 00:16:10.120 --> 00:16:17.120 Remember, treason is defined in the Constitution as treason against them, against the states. Treason is treason against the state. 153 00:16:17.240 --> 00:16:24.680 John Brown was tried and executed in Virginia, not because, you know, because of treason against Virginia. 154 00:16:24.680 --> 00:16:54.680 is an act of treason against the state and any person acting under the authority of a foreign legislature whether by signing notes issuing or passing them acting as director cashier or in any other office relating to it shall be a judge guilty of high treason and suffer death accordingly end quote so these people said states were sovereign they meant it 155 00:16:54.680 --> 00:17:04.680 Now that was his suggestion. It might have been a bit purple in its rhetoric. I don't know, but people talk that they did these things. 156 00:17:04.680 --> 00:17:10.680 Back by sentiments such as these, Andrew Jackson was able to destroy the second bank of the United States. 157 00:17:10.680 --> 00:17:16.680 But only 27 years later, the Lincoln administration and the whirlwind of war and unprecedented centralization 158 00:17:16.680 --> 00:17:22.680 would tax the state banks out of existence and clear the way for federalizing banking 159 00:17:22.680 --> 00:17:24.440 and later for the Federal Reserve. 160 00:17:27.240 --> 00:17:31.120 Article 25 of the Judiciary Act of 1789 161 00:17:31.120 --> 00:17:33.360 gives the Supreme Court jurisdiction, 162 00:17:33.360 --> 00:17:35.520 and this is a very important point, 163 00:17:35.520 --> 00:17:37.560 it gives it jurisdiction over cases 164 00:17:37.560 --> 00:17:39.840 in which state laws are held 165 00:17:39.840 --> 00:17:41.760 by a plaintiff to be unconstitutional. 166 00:17:44.440 --> 00:17:47.240 Now a number of states had right away 167 00:17:47.240 --> 00:17:49.600 questioned the constitutionality 168 00:17:49.600 --> 00:17:52.360 of Article 25 of the Judiciary Act. 169 00:17:52.680 --> 00:17:56.680 You can see the trouble that could cause. 170 00:17:56.680 --> 00:18:01.680 If anybody could claim that what the state is doing is unconstitutional, 171 00:18:01.680 --> 00:18:09.680 then it goes to the Supreme Court, and the Supreme Court would in effect be saying what the Constitution of the state is. 172 00:18:09.680 --> 00:18:14.680 Massachusetts legislature said, a report said, quote, 173 00:18:14.680 --> 00:18:22.280 It's a question of much doubt and argument as to whether this Article 25 is constitutional. 174 00:18:22.280 --> 00:18:25.680 Congress passed it, it means constitutional. 175 00:18:25.680 --> 00:18:29.380 Well, now who's going to resist? Congress passes it. 176 00:18:29.380 --> 00:18:32.480 The President could not enforce it. 177 00:18:32.480 --> 00:18:36.380 The Supreme Court has declared unconstitutional, but they don't do anything. 178 00:18:36.380 --> 00:18:40.180 And as you get more centralization, they all tend to act alike. 179 00:18:40.180 --> 00:18:41.460 It has to be the states. 180 00:18:46.420 --> 00:18:48.780 The most dramatic and thoughtful challenge 181 00:18:48.780 --> 00:18:53.780 to this Judiciary Act Article 25 came from Virginia. 182 00:18:54.260 --> 00:18:58.060 The Supreme Court in case Hunter's Lassie 183 00:18:58.060 --> 00:19:00.620 struck down a Virginia law. 184 00:19:00.620 --> 00:19:03.800 Judge Spencer Rowan of the Virginia Court of Appeals 185 00:19:03.800 --> 00:19:04.900 did a remarkable thing. 186 00:19:04.900 --> 00:19:07.400 He summoned the state's leading lawyers 187 00:19:07.400 --> 00:19:09.740 to argue before the Court of Appeals 188 00:19:09.740 --> 00:19:16.740 as to whether the U.S. Supreme Court had jurisdiction over Virginia's highest court on the question of state law. 189 00:19:18.040 --> 00:19:23.840 The arguments took six days and the court handed down its decision a year and a half later, 190 00:19:23.840 --> 00:19:30.840 in December 1814, that Article 25 of the Judiciary Act was unconstitutional. 191 00:19:32.660 --> 00:19:37.800 John Taylor of Caroline articulated the near universal opinion of Virginians 192 00:19:37.800 --> 00:19:46.840 and a few other states as well or large groups of people in those states that are on federal-state relations in a book called 193 00:19:46.840 --> 00:19:57.640 Construction, Construed and Constitutions Vindicated, 1820 and that's published by Liberty Fund, John Taylor, you can get it and it's very interesting. 194 00:19:57.640 --> 00:19:59.080 Now here's how Taylor argued. 195 00:20:01.180 --> 00:20:03.720 The constitutions of the founding states 196 00:20:03.720 --> 00:20:08.260 are rooted in natural law and expressed in a common law 197 00:20:08.260 --> 00:20:10.520 older than the U.S. Constitution. 198 00:20:12.140 --> 00:20:15.480 Remember now the states were the first constitutions, right? 199 00:20:16.580 --> 00:20:19.180 Donald Lutz, professor at Houston says 200 00:20:19.180 --> 00:20:21.820 that they were the first constitutions in the world 201 00:20:21.820 --> 00:20:25.460 in which people just out of their own voluntary actions 202 00:20:25.460 --> 00:20:28.420 and Compact Formed Political Societies. 203 00:20:29.780 --> 00:20:32.060 So the oldest constitution of that kind 204 00:20:32.060 --> 00:20:34.460 is not U.S. Constitution, but the states. 205 00:20:35.340 --> 00:20:37.780 Now these are older than U.S. Constitution. 206 00:20:37.780 --> 00:20:40.500 U.S. Constitution is a mere federal instrument 207 00:20:42.460 --> 00:20:45.160 that presupposes these organic laws. 208 00:20:45.160 --> 00:20:47.780 The states as organic and sovereign political societies 209 00:20:47.780 --> 00:20:48.900 create the Constitution, 210 00:20:48.900 --> 00:20:50.900 the Constitution didn't create the states. 211 00:20:50.900 --> 00:20:54.340 The constitution tailor went on, 212 00:20:54.340 --> 00:20:59.180 Vest the federal courts with jurisdiction over collisions arising under the enumerated 213 00:20:59.180 --> 00:21:04.540 collisions of individuals, arising under the enumerated powers granted central government, 214 00:21:04.540 --> 00:21:12.380 but not of the state laws, to allow the Supreme Court to be the arbiter of its own powers, 215 00:21:12.380 --> 00:21:18.820 or the powers of the parties to the compact that created it, would be to make the agent 216 00:21:18.820 --> 00:21:24.580 and created by a compact superior to the principles of the compact, an action that contradicts 217 00:21:24.580 --> 00:21:29.500 the very idea of compact in law. 218 00:21:29.500 --> 00:21:32.700 Now other states felt the same way. 219 00:21:32.700 --> 00:21:37.860 In 1854, the California Supreme Court also denied the Supreme Court appellate jurisdiction 220 00:21:37.860 --> 00:21:40.460 under Article 25 of the Judiciary Act. 221 00:21:40.460 --> 00:21:48.780 In 1856, the Chief Justice of the Ohio Supreme Court also denied the U.S. Supreme Court appellate 222 00:21:48.780 --> 00:21:54.220 Appellate Jurisdiction. In 1830, the governor and the legislature of Georgia denied the 223 00:21:54.220 --> 00:21:59.220 Supreme Court Appellate Jurisdiction over an issue arising under state law, and so nullified 224 00:21:59.220 --> 00:22:08.220 Article 25. Andrew Jackson supported the state and worked in Congress to repeal Article 25 225 00:22:08.220 --> 00:22:15.660 of the Judiciary Act, but failed to get it repealed. But the best case of all was in 226 00:22:15.660 --> 00:22:33.660 1855, the Wisconsin Supreme Court asserted its authority over the U.S. Supreme Court and nullified Article 25 and it continued to do so from 1855 right on up in a number of cases involving fugitives of slaves and some other matters right on up to the war. 227 00:22:33.660 --> 00:22:44.660 When a bill was introduced in Congress to give federal courts jurisdiction over suits brought in state courts against federal courts, it was defeated. 228 00:22:44.660 --> 00:23:01.660 Abolitionists such as Salmon Chase, Benjamin Wade appealed to the principles of 98. Chase said that this would establish a great central, consolidated Federal Government. 229 00:23:01.660 --> 00:23:16.660 And Benjamin Wade said, quote, a state in the last resort crowded to the wall by the central government seeking by the strong arm of its power to take away the rights of the state is to judge of whether she shall stand on her reserved rights. 230 00:23:16.660 --> 00:23:23.660 So you had this opinion coming from abolitionists up north, you had it coming from Virginians. 231 00:23:23.660 --> 00:23:30.660 Now, conflicts between the states and the Supreme Court was not the only area in which interposition and nullification occurred. 232 00:23:30.660 --> 00:23:38.280 Congress also came into conflict with the states. 233 00:23:38.280 --> 00:23:45.780 Vermont nullified Federal Congressional Fugitive Slave Laws in 1843, 1850. 234 00:23:45.780 --> 00:23:48.620 So did Massachusetts in 1843 and 1850. 235 00:23:48.620 --> 00:23:53.860 Massachusetts declared the Mexican War unconstitutional in 1846. 236 00:23:53.860 --> 00:23:59.220 The most serious conflict arose over whether Congress had the authority to raise and spend 237 00:23:59.220 --> 00:24:04.940 Spend Money on Internal Improvements. 238 00:24:04.940 --> 00:24:10.420 And it was held that the Constitution gives Congress the right to raise taxes to pay for 239 00:24:10.420 --> 00:24:16.380 the functions of government and then it enumerates what that money is to be spent for. 240 00:24:16.380 --> 00:24:21.540 So the founders held that if you wanted to let Congress spend money on other things, 241 00:24:21.540 --> 00:24:23.140 you had to amend the Constitution. 242 00:24:23.140 --> 00:24:28.340 Hamilton even agreed to that, and Madison and others. 243 00:24:28.340 --> 00:24:32.340 But by the late 1820s, a new nationalist argument had appeared. 244 00:24:32.340 --> 00:24:39.340 It was now said that Congress could raise money and spend it on whatever in its view would promote the national interest. 245 00:24:39.340 --> 00:24:44.340 But where would it get its revenue? 246 00:24:44.340 --> 00:24:49.340 Well, you certainly couldn't have an income tax. Nobody would accept that. 247 00:24:49.340 --> 00:24:55.340 From 1830 to 1860, the central government lived mainly on a tariff on imports and land sales. 248 00:24:55.340 --> 00:24:59.340 The great majority of American exports came from the South. 249 00:24:59.340 --> 00:25:05.340 The result was that the South funded around 75% of Federal revenue, 250 00:25:05.340 --> 00:25:08.340 because of its export trade. 251 00:25:08.340 --> 00:25:11.340 High protective tariffs meant high profits for Northern industry, 252 00:25:11.340 --> 00:25:19.340 but they hurt the Southern export trade, which was largely an exchange of European manufacturers for staples. 253 00:25:19.340 --> 00:25:27.500 The tariff of 1828 devastated the South Carolina export trade, and the legislature nullified 254 00:25:27.500 --> 00:25:31.660 the tariff until it was reduced to a reasonable level. 255 00:25:31.660 --> 00:25:35.980 The state had no objection to a tariff to pay for exercising the enumerated powers of 256 00:25:35.980 --> 00:25:40.180 Congress, but a tariff to raise revenue to improve northern infrastructure was not within 257 00:25:40.180 --> 00:25:42.260 Congress's powers. 258 00:25:42.260 --> 00:25:48.620 Governor Wilson asked, why should South Carolina have to pay for a canal across Cape Cod? 259 00:25:48.620 --> 00:25:53.020 Congress under Andrew Jackson's leadership responded with a force bill authorizing the 260 00:25:53.020 --> 00:25:58.980 President to use force to collect the tariff. South Carolina mobilized to resist. Tension 261 00:25:58.980 --> 00:26:04.140 was high and Congress began to rethink. Henry Clay worked out a compromise in which the 262 00:26:04.140 --> 00:26:10.980 tariff would be reduced but retain the force bill. South Carolina promptly rescinded nullification 263 00:26:10.980 --> 00:26:17.980 of the Tariff, and then nullified the force bill. 264 00:26:18.940 --> 00:26:25.940 So again, this is how federalism is supposed to work. You know, you negotiate these things. 265 00:26:27.080 --> 00:26:31.380 In textbook histories of the United States, nullification is usually presented as a radical 266 00:26:31.380 --> 00:26:36.540 kooky idea concocted by Calhoun to protect slave interests. This is simply not true. 267 00:26:36.540 --> 00:26:43.540 As I've shown, Calhoun's defense of nullification is simply an elaboration of the Principles of 98. 268 00:26:45.540 --> 00:26:51.540 And these principles are put forth in every section of the Union on issues that have nothing whatsoever to do with slavery. 269 00:26:52.540 --> 00:26:59.540 But further, any federal system that is serious about protecting the economies and ways of life of its federal units 270 00:26:59.540 --> 00:27:03.540 must allow some form of interposition or nullification. 271 00:27:03.540 --> 00:27:08.540 We can argue about the form, but that's simply got to be in the Constitution. 272 00:27:08.540 --> 00:27:13.540 Canada, for example, allows nullification in the area of civil rights. 273 00:27:13.540 --> 00:27:19.540 A province can nullify any federal law in the area of civil rights. 274 00:27:19.540 --> 00:27:27.540 It has to reaffirm that every five years, but it can do it. 275 00:27:27.540 --> 00:27:32.540 And Switzerland has all kinds of cheques, vetoes. 276 00:27:35.540 --> 00:27:41.540 Now it was widely understood at the founding that states were sovereign. 277 00:27:41.540 --> 00:27:46.540 If they're sovereign, then by international law at that time, 278 00:27:46.540 --> 00:27:48.540 Vattel and others make this clear, 279 00:27:48.540 --> 00:27:54.540 sovereign states entering a compact with no precise term of duration 280 00:27:54.540 --> 00:27:57.540 can withdraw from the compact at will. 281 00:27:57.540 --> 00:28:02.040 I mean, if the compact is for 99 years, they've got to stay in 99 years, 282 00:28:02.040 --> 00:28:07.040 as in the case of Hong Kong and Britain and China. 283 00:28:07.040 --> 00:28:11.540 So there was no precise term of duration specified in the Constitution, 284 00:28:11.540 --> 00:28:15.540 so everybody in your state could succeed. 285 00:28:15.540 --> 00:28:18.040 Of course, if you want a union, you don't want that to happen, 286 00:28:18.040 --> 00:28:23.040 but that's a matter of policy, not right. 287 00:28:23.040 --> 00:28:30.040 Leaders in North Carolina and Virginia talked of secession during the three-year mini-war with France in the late 19th century. 288 00:28:30.040 --> 00:28:37.540 New England considered secession in 1803 of the Louisiana Purchase, 1808 of the embargo, and most seriously in 1814, 289 00:28:37.540 --> 00:28:42.540 when Massachusetts called a convention of the New England states to consider forming a New England Federation. 290 00:28:42.540 --> 00:28:48.540 A military commander was appointed, secret commissioners were sent to Britain to negotiate a treaty if needed. 291 00:28:48.540 --> 00:28:53.900 Convention was in opposition to the War of 1812, and those states nullified the request for troops. 292 00:28:53.900 --> 00:28:56.300 They wouldn't send any troops. 293 00:28:56.300 --> 00:29:00.300 In the 60s, we heard, what if they gave a war and no one came? 294 00:29:00.300 --> 00:29:05.460 Well, they gave a war and New England just didn't show up. 295 00:29:05.460 --> 00:29:16.660 Now, Daniel Webster, the great windbag who became an eloquent defender of the nationalist theory, 296 00:29:16.660 --> 00:29:19.860 was what began his career as a New England secessionist. 297 00:29:23.180 --> 00:29:25.860 John Quincy Adams signed a document in 1843 298 00:29:25.860 --> 00:29:27.180 along with other New England leaders 299 00:29:27.180 --> 00:29:28.860 declaring that the annexation of Texas 300 00:29:28.860 --> 00:29:30.820 would mean the dissolution of the Union. 301 00:29:31.820 --> 00:29:34.900 And Massachusetts declared that the annexation 302 00:29:34.900 --> 00:29:36.940 would mean the dissolution. 303 00:29:36.940 --> 00:29:38.580 Now Thomas Jefferson contemplating 304 00:29:38.580 --> 00:29:42.100 New England secession movements wrote in 1816, quote, 305 00:29:42.100 --> 00:29:44.220 if any state in the Union will declare 306 00:29:44.220 --> 00:29:47.540 that it prefers separation to a continuance in union. 307 00:29:47.540 --> 00:29:52.020 I have no hesitation in saying, let us separate, end quote. 308 00:29:52.020 --> 00:29:53.700 He had done it before, it could be done. 309 00:29:53.700 --> 00:29:55.380 It wasn't that big a deal, 310 00:29:55.380 --> 00:29:57.180 especially if you didn't have to fight. 311 00:29:58.980 --> 00:30:00.740 And there are many other examples. 312 00:30:01.820 --> 00:30:04.500 Governor Morris called in the New York Tribune 313 00:30:04.500 --> 00:30:06.580 for New England, New York to secede. 314 00:30:06.580 --> 00:30:08.860 One of the first treatises on the Constitution 315 00:30:08.860 --> 00:30:13.700 was a view of the Constitution published by William Rawl, 1825, 316 00:30:13.700 --> 00:30:17.200 A leading Federalist, a would-be Nationalist. 317 00:30:17.200 --> 00:30:20.100 Rall was a leader of the Pennsylvania Bar, 318 00:30:21.140 --> 00:30:26.700 and he argues that, I mean, he wanted a Nationalist government, 319 00:30:26.700 --> 00:30:28.100 but he knew he didn't have one. 320 00:30:28.100 --> 00:30:30.500 And so in this book, and his testimony is very powerful 321 00:30:30.500 --> 00:30:32.940 because he didn't particularly like the Constitution, 322 00:30:32.940 --> 00:30:34.860 but he points out that it's a confederation, 323 00:30:34.860 --> 00:30:38.260 it's a compact between states, and that states can secede. 324 00:30:38.260 --> 00:30:40.300 So then he goes to lay out the legal steps 325 00:30:40.300 --> 00:30:43.480 the state would have to take in order to secede. 326 00:30:43.480 --> 00:30:46.280 It doesn't need to have permission of any other state, 327 00:30:46.280 --> 00:30:49.720 but it does have to satisfy a certain formal condition. 328 00:30:49.720 --> 00:30:52.480 Now this book was a text at West Point 329 00:30:52.480 --> 00:30:55.920 on constitutional law from 1825 to 1840. 330 00:30:55.920 --> 00:30:57.960 So at least up through that time, 331 00:30:57.960 --> 00:31:00.720 military officers learned from the, 332 00:31:03.120 --> 00:31:04.160 about secession. 333 00:31:05.900 --> 00:31:07.760 From the 1830s and 1960s, 334 00:31:07.760 --> 00:31:09.880 abolitionists saw secession as the best way 335 00:31:09.880 --> 00:31:11.120 to eliminate slavery. 336 00:31:13.480 --> 00:31:17.880 The American Anti-Slavery Society passed the following resolution, quote, 337 00:31:17.880 --> 00:31:25.080 Resolve that the abolitionists of this country should make it one of the primary objects of this agitation to dissolve the American Union, end quote. 338 00:31:25.080 --> 00:31:32.280 It's typical American Act. You think in terms of states. You think in terms of states. 339 00:31:32.280 --> 00:31:35.880 The federal government's never going to do anything about slavery, they don't have any authority over it. 340 00:31:35.880 --> 00:31:38.680 The other states aren't going to do anything. You pull out. 341 00:31:38.680 --> 00:31:56.120 When Southern states began to secede, abolitionists at first welcomed the action. This included 342 00:31:56.120 --> 00:32:02.160 Horace Greeley and such abolitionist journals as Frederick Douglass's Douglass Monthly. 343 00:32:02.160 --> 00:32:06.560 In the 1850s, as a succession of the Deep South seemed imminent, a movement occurred 344 00:32:06.560 --> 00:32:36.560 The mayor of New York, Fernando Wood, argued that New York City should secede, and he was serious, and declare itself a free city, and form an alliance with the U.S. and the United States to form what was called the Central Confederacy, made up of mid-Atlantic states, I won't go into that, except to say that it would include New York and Virginia and the southern border states, so there would be a big union left if the deep south seceded. 345 00:32:36.560 --> 00:32:48.560 He said, quote, as a free city with but nominal duty on imports, the local government could be supported without taxation upon her people. 346 00:32:48.560 --> 00:32:54.560 Thus we could live free from taxes and have cheap goods nearly duty free, end quote. 347 00:32:54.560 --> 00:32:56.560 It's still a good idea. 348 00:32:56.560 --> 00:33:02.560 Imagine New York, it's like Singapore, a free city. 349 00:33:02.560 --> 00:33:14.560 But anyway, but not everyone accepted the Compact Theory. There was the Nationalist Theory, and that theory basically had to argue as follows. 350 00:33:14.560 --> 00:33:25.560 When the colonies seceded from Great Britain, here's how it goes, this is just a story, all legal jurisdiction vanished. 351 00:33:25.560 --> 00:33:33.560 Virginia was an artifact of the British monarchy. Once that's gone, there is no artifact, right? 352 00:33:33.560 --> 00:33:37.560 So there's no Virginia. There's just a bunch of people there. Same with all the other colonies. 353 00:33:37.560 --> 00:33:43.560 So what you were left with were people in a state of nature. 354 00:33:43.560 --> 00:33:48.560 There's people in a state of nature, according to Hobbes and Locke's Contract Theory, 355 00:33:48.560 --> 00:33:52.640 spontaneously formed the political society of the American people in the 356 00:33:52.640 --> 00:33:59.440 aggregate. They, in turn, created a central government called the Congress, 357 00:33:59.440 --> 00:34:07.200 which authorized the formation of states. Now, they couldn't raise taxes and they 358 00:34:07.200 --> 00:34:14.000 couldn't raise troops, but they could create political societies. This is so 359 00:34:14.000 --> 00:34:24.000 It's all absurd. I mean, this is absurdity on stilts, but it's fundamental American law now, just about. 360 00:34:24.000 --> 00:34:33.000 Just breathtaking. I've thought there's something wrong with me. I must be missing something. 361 00:34:33.000 --> 00:34:38.000 And I read these people, and it just doesn't get any better. I mean, it's just absurd. 362 00:34:38.000 --> 00:34:45.180 Okay, now, if the national, but if that's true, if that's true, then the states are counties in a unitary state. 363 00:34:46.700 --> 00:34:50.420 They're not sovereign, so they can't succeed on their own. They have to get permission. 364 00:34:51.420 --> 00:34:58.340 I think we would all agree that if any county of Alabama wanted to succeed, it would somehow have to get permission from, 365 00:34:58.340 --> 00:35:04.120 because it's an artifact of the legislature. It legally have to get permission. It could fight its way out, but that's a state of nature. 366 00:35:04.120 --> 00:35:20.120 So, Lincoln said there's no legal right to secede because he accepted this nationalist artificial nation person theory that had drifted over from Europe and began to infect everything it touched. 367 00:35:20.120 --> 00:35:30.320 Now, Webster gave his great speech in Congress called The Constitution Not a Compact. 368 00:35:30.320 --> 00:35:39.880 And Calhoun, who was a very learned man and very articulate, he answered him with a very 369 00:35:39.880 --> 00:35:42.240 careful historical exposition of the Constitution. 370 00:35:42.240 --> 00:35:48.760 John Randolph, who observed Calhoun's withering exposition, said he saw, quote, Webster die 371 00:35:48.760 --> 00:36:02.760 muscle-by-muscle. And in the crisis of the 1850s, Webster unthinkingly reverted back to the language of the Compact Theory. 372 00:36:02.760 --> 00:36:09.760 He started treating the Constitution as a compact, told the New England states that they kept nullifying any fugitive slave laws, 373 00:36:09.760 --> 00:36:14.760 they're breaking the Compact, you break the Compact, states have a right to secede. 374 00:36:14.760 --> 00:36:25.760 It was his earlier view as a New England secessionist and he sort of slipped back into it when he wasn't, when he was sober. 375 00:36:29.760 --> 00:36:43.760 Okay, now, Lincoln, when the Southern states did secede, Lincoln's argument was the Union is older than the states and in fact it created them a state so they can't secede. 376 00:36:43.760 --> 00:37:02.760 So he used that flimsy legal argument to invade, and most of you know, suspended civil rights, closed down around 300 newspapers, arrested about 20,000 political prisoners, about 10 times as many as Mussolini did in his most vigorous period. 377 00:37:02.760 --> 00:37:06.760 I checked that out, about 12,000. 378 00:37:06.760 --> 00:37:17.760 Anyway, so it would, he assumed dictatorial powers because he was preserving the Union. 379 00:37:17.760 --> 00:37:23.760 Now after the war, so here we have the first move towards destroying Federalism. 380 00:37:23.760 --> 00:37:30.760 The executive branch takes initiative and illegally raises money, illegally raises troops, 381 00:37:30.760 --> 00:37:35.760 invades Maryland which destroys this mid-Atlantic Confederation idea. 382 00:37:35.760 --> 00:37:40.080 The states again were trying to get together to solve this problem. 383 00:37:40.080 --> 00:37:42.840 If you got a secession problem, it's not Washington's problem. 384 00:37:42.840 --> 00:37:46.520 It's a problem for the other sovereigns in the compact. 385 00:37:46.520 --> 00:37:51.400 And so state conventions, negotiation of whole states is what has to go on. 386 00:37:51.400 --> 00:37:53.920 This will be the case in the European Union today. 387 00:37:53.920 --> 00:37:56.800 If there were a serious problem, 388 00:37:56.800 --> 00:38:00.440 then you would hope that it would be a matter for the states to negotiate. 389 00:38:00.440 --> 00:38:08.940 Now, after the war, the next culprit was Congress. 390 00:38:08.940 --> 00:38:14.880 Lincoln had domesticated the Congress and the Supreme Court. 391 00:38:14.880 --> 00:38:21.440 When Tawny rules habeas corpus, his act unconstitutional, he ordered his arrest. 392 00:38:21.440 --> 00:38:24.440 So this concentrated the mind of everybody. 393 00:38:24.440 --> 00:38:26.920 It really did. 394 00:38:26.920 --> 00:38:29.240 This was completely unusual. 395 00:38:29.240 --> 00:38:44.920 But after the war now, Congress takes over and it becomes the centralizer. 396 00:38:44.920 --> 00:38:51.560 Lincoln's theory was states couldn't succeed, so since they couldn't succeed, all you had 397 00:38:51.560 --> 00:38:57.440 to do was put loyal union people in, have the ex-Confederates take the oath as a condition 398 00:38:57.440 --> 00:39:03.160 of Suffrage, and he'd be back in business. States never succeeded. You just have a bunch 399 00:39:03.160 --> 00:39:10.000 of wicked pirates trying to attack the United States. Get rid of them, make them submissive, 400 00:39:10.000 --> 00:39:14.520 back in business. And that's what Johnson tried to do. But Congress wanted a more radical 401 00:39:14.520 --> 00:39:21.100 policy and it passed the 14th Amendment, so-called passed it, June 13th, 1866, and submitted 402 00:39:21.100 --> 00:39:25.720 it to the states for ratification. And this is very interesting. The amendment overturns 403 00:39:25.720 --> 00:39:39.720 This is a Dred Scott decision by declaring that anyone born in the U.S. is a citizen and no state can deprive a citizen of the privileges and immunities of the citizen or deprive any person of life, liberty, property without due process of law or to deny equal protection of the law. 404 00:39:39.720 --> 00:39:44.720 So this gives a central authority the right to interpret all these things. 405 00:39:44.720 --> 00:39:53.720 Suffrage was left to the states but if blacks were not allowed to vote a state lost representation proportionally and I won't go into the other details of it. 406 00:39:53.720 --> 00:39:59.680 The ratification process of this most famous of all amendments began and ended in spectacular 407 00:39:59.680 --> 00:40:06.520 violations of the rule of law. It failed by one vote in the Senate, passed the House. 408 00:40:06.520 --> 00:40:12.200 The radical Republican solution to this problem was to retrospectively unseat Senator Stockton 409 00:40:12.200 --> 00:40:18.400 of New Jersey, a vigorous critic of the Fourteenth Amendment, even though he had been formally 410 00:40:18.400 --> 00:40:28.720 The motion to unseat passed by a majority of one, even though the Constitution requires 411 00:40:28.720 --> 00:40:35.360 a two-thirds majority to expel a member. The radicals shamelessly replied that retroactive 412 00:40:35.360 --> 00:40:44.400 unseating a member is not the same as expelling it. Political span increases with centralization. 413 00:40:44.400 --> 00:40:59.400 Okay, now the Southern states were denied representation in the House and Senate, but remember they had been counted in the number of states necessary to ratify the 13th Amendment. 414 00:40:59.400 --> 00:41:06.400 In other words, they were counted just like all the other states in the number necessary to ratify the 13th Amendment, and some of them ratified it. 415 00:41:06.400 --> 00:41:15.900 But they were useful now to supporting the 14th Amendment even though they didn't have any representation. 416 00:41:15.900 --> 00:41:24.900 All the southern states voted no except Tennessee whose vote was illegal since the legislature did not have a quorum and it was passed by bayonets. 417 00:41:24.900 --> 00:41:29.400 Oregon's ratification was also illegal and was rescinded later by the state. 418 00:41:29.400 --> 00:41:33.080 Ohio rescinded its earlier ratification, as did New Jersey, 419 00:41:33.080 --> 00:41:36.360 outrage of the arbitrary expulsion of its senator from Congress. 420 00:41:36.360 --> 00:41:40.200 Delaware, Maryland, California, and Kentucky rejected the amendment outright. 421 00:41:40.840 --> 00:41:47.560 The amendment failed to receive even a simple majority, much less than two-thirds or three-fourths. 422 00:41:48.920 --> 00:41:54.360 But the radicals run daunted, and in March 1867 passed the Right Reconstruction Act, 423 00:41:54.360 --> 00:41:58.600 Act, which now declared that, quote, no legal state governments, end quote, existed in the 424 00:41:58.600 --> 00:42:01.920 ten southern states, had refused to ratify. 425 00:42:01.920 --> 00:42:04.880 The region was divided into five military dictatorships. 426 00:42:04.880 --> 00:42:10.040 Black males were enfranchised, and all whites, in support of the Confederacy, were disenfranchised. 427 00:42:10.040 --> 00:42:14.500 Three-quarters of white males of military age were in the Confederate Army. 428 00:42:14.500 --> 00:42:18.880 The voters were to elect delegations to a convention that would produce a constitution 429 00:42:18.880 --> 00:42:22.880 giving black males the vote, and that would ratify the Fourteenth Amendment. 430 00:42:22.880 --> 00:42:27.040 After this was done, Congress would consider ending military rule. 431 00:42:27.040 --> 00:42:32.440 Now in vain did President Johnson protest that the Reconstruction Act violated the Fifth 432 00:42:32.440 --> 00:42:38.200 Amendment and was a bill of attainder against nine million people, all of whom were deprived 433 00:42:38.200 --> 00:42:42.720 of political and civil rights without due process and without representation in either 434 00:42:42.720 --> 00:42:49.000 the Senate or House. 435 00:42:49.000 --> 00:42:53.720 With no means of political resistance left, the South turned to the Supreme Court for 436 00:42:53.720 --> 00:42:54.720 relief. 437 00:42:54.720 --> 00:42:58.120 The Court ruled in ex parte Milligan that martial law could not be constitutionally 438 00:42:58.120 --> 00:43:00.600 imposed in the absence of war and rebellion. 439 00:43:00.600 --> 00:43:04.720 Consequently, states sought an injunction on the ground that Congress had no authority 440 00:43:04.720 --> 00:43:10.120 to annihilate a state government and deprive its people of political and civil rights. 441 00:43:10.120 --> 00:43:14.760 The Court, which had learned submission under the Lincoln administration, ruled that it 442 00:43:14.760 --> 00:43:23.400 had jurisdiction over property and persons, but not over political rights. 443 00:43:23.400 --> 00:43:28.180 Southern Hopes revived when the court took up the case of Ex parte McCardell, which did 444 00:43:28.180 --> 00:43:33.160 involve confiscation of property under the Reconstruction Act. 445 00:43:33.160 --> 00:43:37.880 But while the case was being reviewed by the court, Congress passed a bill removing the 446 00:43:37.880 --> 00:43:43.060 court's jurisdiction in the case. 447 00:43:43.060 --> 00:43:48.180 Congress had required a majority of the registered voters to approve the Reconstruction Constitution. 448 00:43:48.180 --> 00:43:52.120 And Alabama voters, for example, and there were other states that tried this, stayed 449 00:43:52.120 --> 00:43:56.780 away from the polls. Now, these are union voters, you understand. I mean, the ex-Confederates 450 00:43:56.780 --> 00:44:02.020 are out of this. They stayed away from the polls as a way of blocking the centralization 451 00:44:02.020 --> 00:44:06.980 they feared would come with the 14th Amendment. The Constitution passed, but without the required 452 00:44:06.980 --> 00:44:11.660 majority of the registered voters. Congress simply changed the rules retroactively to 453 00:44:11.660 --> 00:44:14.540 to make a majority of those voting sufficient. 454 00:44:14.540 --> 00:44:17.500 In some cases, it was a very small number. 455 00:44:17.500 --> 00:44:19.980 Eventually, the southern states were your feudal resistance 456 00:44:19.980 --> 00:44:22.300 and tired of military dictatorships 457 00:44:22.300 --> 00:44:24.900 where judges, governors, other elected officials 458 00:44:24.900 --> 00:44:26.740 were removed by military commanders 459 00:44:26.740 --> 00:44:29.140 and fearing proposals by radicals in Congress 460 00:44:29.140 --> 00:44:30.740 that property would be confiscated 461 00:44:30.740 --> 00:44:32.780 and redistributed finally agreed 462 00:44:32.780 --> 00:44:34.820 in the terms of the Reconstruction Act. 463 00:44:34.820 --> 00:44:39.820 And the 14th Amendment was ratified really by point of sword. 464 00:44:39.820 --> 00:44:48.820 Now, but the crowning constitutional absurdity is that only a legally recognized state can ratify an amendment. 465 00:44:51.820 --> 00:44:58.820 And by the Reconstruction Act, the southern states that ratified were not legally established states at all. 466 00:44:58.820 --> 00:45:02.820 And so were incapable of ratifying any amendment. 467 00:45:02.820 --> 00:45:09.820 So what you had were, you understand that point, they weren't states. 468 00:45:09.820 --> 00:45:18.820 Without the Southern non-states, I'm going to call them, without the Southern non-states, the 14th Amendment would not have been ratified. 469 00:45:18.820 --> 00:45:25.820 And indeed, if due scrutiny were given to, and I don't have time to go into this, to West Virginia, which was illegally carved out of Virginia, 470 00:45:25.820 --> 00:45:42.820 of Virginia, and to legal improprieties with Nevada and New Mexico, didn't have enough people to be a state, the amendment would not have passed even with the forced ratification of the southern non-states. 471 00:45:42.820 --> 00:45:50.820 So it's in this way that this most famous of all amendments came into the world. 472 00:45:50.820 --> 00:45:56.680 Now, the recognition for ratification of the Southern non-states logically implied that 473 00:45:56.680 --> 00:46:02.140 all American states were now non-states. 474 00:46:02.140 --> 00:46:07.740 They had become that through violence and fraud, they had become the counties in a unitary 475 00:46:07.740 --> 00:46:11.400 state that Lincoln said they were. 476 00:46:11.400 --> 00:46:16.040 And with that, the dreaded consolidation that anti-Federalists such as Patrick Henry and 477 00:46:16.040 --> 00:46:21.440 and George Mason warned against, into which secession was the ultimate remedy had come to pass. 478 00:46:21.440 --> 00:46:23.740 William Gilmore Sims said at the end of the war, 479 00:46:23.740 --> 00:46:27.840 no northern state today has a republican form of government. 480 00:46:27.840 --> 00:46:32.340 That was his, not only southerners, but northerns didn't either. 481 00:46:32.340 --> 00:46:34.840 Okay, one final point. 482 00:46:34.840 --> 00:46:39.840 Historians say that after Reconstruction, Federalism revived. 483 00:46:39.840 --> 00:46:41.340 In a sense, that's true. 484 00:46:41.340 --> 00:47:09.840 The Supreme Court narrowly construed the meaning of the 14th Amendment, which in effect, as they said, and Raoul Berger argues this in his book, Government by Judiciary, that all the amendment's attempt to do was to constitutionalize the Civil Rights Act of 1866, which gave blacks the privileges and immunities of citizens. 485 00:47:09.840 --> 00:47:12.120 That's not political rights or social rights. 486 00:47:12.120 --> 00:47:14.720 We're just privileges and immunities of a citizen. 487 00:47:14.720 --> 00:47:17.160 They can own property, form contracts, 488 00:47:17.160 --> 00:47:20.460 which they couldn't do before, even in Northern States, 489 00:47:20.460 --> 00:47:21.300 some of them. 490 00:47:23.040 --> 00:47:26.760 So the Supreme Court then reestablished state's rights. 491 00:47:26.760 --> 00:47:31.340 But notice what had happened is federalism was not restored 492 00:47:31.340 --> 00:47:35.120 because everybody started looking to the Supreme Court 493 00:47:35.120 --> 00:47:37.400 to see what the rights of the states were. 494 00:47:37.400 --> 00:47:42.400 So the Supreme Court gave these states rights, 495 00:47:42.960 --> 00:47:45.200 but what it can give, it can take away. 496 00:47:46.080 --> 00:47:49.600 And later on with the incorporation doctrine in the 1920s, 497 00:47:49.600 --> 00:47:52.840 it began to say that the 14th Amendment 498 00:47:52.840 --> 00:47:55.400 incorporates the Bill of Rights. 499 00:47:55.400 --> 00:47:57.600 So we get the absurdity that the Bill of Rights, 500 00:47:57.600 --> 00:48:00.840 which is mainly designed to protect the corporate liberty 501 00:48:00.840 --> 00:48:05.600 of federal units, is now designed to protect individuals 502 00:48:05.600 --> 00:48:10.600 Against the Corporate Liberty of the Federal Units. 503 00:48:10.600 --> 00:48:13.920 The incorporation, if you want to read the absurdity, 504 00:48:13.920 --> 00:48:18.400 why that's absurd, read Raoul Berger's, B-E-R-G-E-R book, 505 00:48:18.400 --> 00:48:21.960 Government by Judiciary, and you can get it from Liberty Funds. 506 00:48:21.960 --> 00:48:25.320 So get their catalog, look on their webpage, and get that book. 507 00:48:25.320 --> 00:48:30.040 He demonstrates, Forrest McDonald says, it's just unanswerable, 508 00:48:30.040 --> 00:48:32.920 that the framers of the 14th Amendment 509 00:48:32.920 --> 00:48:47.320 did not mean to invert the Constitution, they did not mean to turn the Bill of Rights into, put it under Federal authority. 510 00:48:47.320 --> 00:48:54.040 So, that's the long story. It fits right in to the story of centralization in Europe. 511 00:48:54.040 --> 00:48:58.560 What happened here was happening there. It's a process of modernity. 512 00:48:58.560 --> 00:49:15.560 The United States was right on schedule. It was a little bit late from Europe because they had this older tradition that was more, it was pre-modern, but they finally came into the centralized world, kicking, some of them kicking and screaming. Thanks.