Well, thanks both to WC, to Jeff, to George Crispin, and ladies and gentlemen.
Well, what I'd like to do, starting off here talking about the colonial period,
is to focus on a few themes of importance.
Because the colonial period is a period of really staggering,
that's staggering in terms of the amount of information that one would have to cover.
It was far and away the most difficult, challenging course I took as an undergraduate in history
because I remember that in order to cover the history of these 13 separate societies
we were reading in this one course 400 pages of non-fiction reading a week
which was heavier than the usual course load at Harvard.
My professor I don't think is any longer there, David Hancock.
They'd probably get rid of him for being too soft on us.
The Theory of Money and Credit
This actually starts off by obliquely referring to a book by a man named David Hackett Fisher,
wrote a book called Albion's Seed in the early, I believe it was early 90s,
Albion's Seed, Four British Folkways in America.
Now Fisher's name is referred to on page two of the book,
but I begin in effect describing his thesis on page one.
What Fisher is arguing is that between 1629, which is when the Puritans who come to Massachusetts
Bay are going to begin their migration, all the way through 1775 and the eve of the revolution,
there appear to be four major waves of migration of peoples who come to what becomes the United
States from various parts of England.
Now that's not to say that nobody else other than Englishmen came to America, but these
These are the four migrations that Fisher wants to examine because he argues that these particular
groupings had certain identifiable characteristics that then characterized the regions in which
they settled.
So he begins by discussing the English Puritans who settle in what becomes New England, which
is where I'm from.
He then goes on to talk about the settlement of Virginia, and this is all, as I say, pretty
on page one, but he says that in the south of England, you've got a migration that takes place.
The major migration to Virginia really gets going in the 1640s and then several decades afterward.
Jamestown is founded in 1607, but the major migrations don't really occur for some years after that
because the early years of Virginia are an absolute horror show, people dying of disease and starvation.
So we have that second group. So we've got New England, we've got Virginia.
The third migration he refers to originates in the North Midlands of England and Wales,
terminating in the Delaware Valley around 1675 to 1725, and that would include the Quakers of Pennsylvania.
And then finally, going from about 1718 to 1775, we have a fourth group
consisting of immigrants from the borders of North Britain and Northern Ireland,
in Ireland who made their way to the Appalachian backcountry. And what Fisher is going to argue
is that the various characteristics of these peoples that are evident in England will become
evident also in America. Now, John Jay, who became the first Chief Justice of the U.S.
Supreme Court when he wrote one of his few contributions to the Federalist Papers, Federalist
number two, he made the observation that the peoples of America were in fact relatively
very similar culturally and religiously.
So he argued, he said, these are John Jay's words,
Providence has been pleased to give this one connected country
to one united people,
a people descended from the same ancestors, speaking the same language,
professing the same religion,
attached to the same principles of government,
very similar in their manners and customs.
So these peoples have enough common characteristics to make it possible for them to join together
in a single union.
But what Fisher is arguing in this book from the 1990s is that nevertheless the differences
that are beneath these similarities were nevertheless enduring and that the differences were significant
enough that what began to happen around the time of the Constitution was that the various
regions of America in which these four major migrations terminated in effect wanted to
and defend themselves from one another.
Each one wanted to be sure that no one particular grouping of these peoples would be able to
take hold of the U.S. government and impose itself on the rest of them.
So this was a consideration when the Constitution was drawn up, that we want to keep the central
government relatively weak because, for heaven's sake, what would happen if the descendants
of the Puritans took over?
For heaven's sake, we wouldn't want that, or what would happen if this group took over?
So we have to keep the whole thing relatively weak.
Now I give in my book examples of some of the insults that early Americans threw at
each other. What Puritans thought of Virginians and what Virginians thought of Puritans and
what everybody thought about the Quakers. All of this over and over we see repeated.
Even into the 1790s we have one Quaker referring to New England in general as being the flock
of Cain. The Quakers incidentally were a pacifist group. They were in effect like left-wing
by William Puritans, who settled Pennsylvania in the early 1680s, but the Quakers, before
they settled Pennsylvania, lived in, a lot of them lived in Rhode Island, which was a
place of relative religious freedom, and I note in my book that although the Quakers
believed in religious toleration and they did not believe in the use of force against
people who disagreed with them on matters of religion, nevertheless the Quakers believed
they were right, they believed theirs was the true religion, so living right to the
In the south of Boston Puritans, the Quakers could not restrain themselves from going up and heckling Puritan ministers in Boston and disrupting their services or, my particular favorite, walking naked up and down Puritan church aisles as a way of just trying to jolt these people out of their excessive rigorism of their faith.
And of course you can just imagine the Puritans who have made such sacrifice to come all this way wondering who in the world are these people, why won't they just leave us alone.
So there was in effect a certain antagonism between the various peoples.
Now of course when you're fighting against the British beginning in the 1770s, well that has a tendency to dissolve some of this antagonism.
But nevertheless there was real cultural particularity that persisted in America.
And what I've suggested in the book is that this kind of antagonism or mutual suspicion contributes to the development of the tradition of American liberty.
Because as I say, they're so suspicious of each other, nobody wants there to be a strong enough federal government that if one of these groups took power, it could impose its own views on the rest.
So for instance, when it came time to decide what will the religious policy be under the U.S. Constitution?
Constitution. Are we all going to have the same established religion? Are we going to
establish no religion at all? What is the policy going to be? What Fisher suggests is
that this was a regional compromise. What was reached in the First Amendment of the
U.S. Constitution was a regional compromise because in Virginia you had religious liberty
by the time of the 1780s, but in New England you still had taxpayer-supported religious
until 1833, Massachusetts, its congregational churches still were in effect taxpayer supported institutions.
So how are you going to have a common union with such disparate examples of social order?
And the answer was, the Federal Government should have no role in religion whatsoever.
No role, absolute non-intervention.
We let each colony and then later each state decide its religious policy for itself.
for itself. Because if the federal government tried to impose one, well, there would never
have been a union in the first place. People favoring religious liberty would have seceded
if there was an attempt to impose religion on them. And likewise, if there was a federal
attempt to dissolve the establishments of Massachusetts and elsewhere, then those would
have seceded. So the answer was leave the federal government out of it. Leave the local
people free to decide these questions for themselves. So again, the diversity of peoples
in America in that case leads to more liberty in effect because it leads to a federal government
that decides it better keep out of these quarrels and let each local area make its own policies.
We also note another I think significant theme about early America is that we don't see
among either the colonists in the early period in the early 1600s or in the 1770s and 80s
at the time of the break with Britain and the drafting of the Constitution, we don't
We don't see any sense among Americans that, as you do see, for instance, during the French Revolution,
that the American people, or the people who constitute what becomes the United States,
are just clay in the hands of legislators.
That it is the role of legislators to remake human nature, or to impose a blueprint on society.
We don't see that. We do see that in the French Revolution.
And you do see that in a great many other 20th century examples.
The idea that human nature can be changed and that it is up to the political class to carry out these changes.
We can make people less selfish by re-educating them in the need to share with everybody.
We can do this and that. We can abolish traditional marriage. We can do this and that.
You don't see that in the American example. You see practical people looking to solve practical problems.
You don't see visionaries looking to impose a single blueprint on all of society.
You don't see, as I say, what you saw in the French Revolution in which the idea was that we are going to make a radical break with our past and try to construct a brand new France.
We're going to try to construct a non-Christian France.
We're going to abolish the traditional seven-day week and replace it with a ten-day week that contains no Sunday.
So people won't be able to know what day should they rest and honor God. That's to be removed.
to be removed. We're going to date the calendar from the year one. The year one will be the
year that we executed our king. So we're going to leave behind the whole Christian inheritance
of France and again begin anew with a brand new blueprint. We're going to come up with
a crummy metric system from scratch because we hate all the silly measurement systems
we had before. This will be more even and rational. All of this implies the idea that
The legislator is someone who carries out a blueprint to impose on society, but you don't
have that in the American example.
Now I actually edited a volume of the political writings of Rufus Choate.
The first question that arises from that is who is Rufus Choate?
Rufus Choate was a 19th century congressman, sometimes congressman and senator from Massachusetts.
I want to quote him because he makes the same sort of observation that I'm making about
the sobriety of the American experience
and that you don't see politicians getting caught in flights of fancy
about how they're going to remake human nature
or they're going to establish an anti-Christian blueprint on society.
This is what Rufus Choate said looking back on the American experience.
He said,
There was another great work different from this and more difficult,
more glorious, more improving, which they had to do.
And that was to establish their system of colonial government,
to frame their code of internal law
and to administer the vast and perplexing political business of the colonies
in their novel and trying relations to England through the whole colonial age.
Of all their labors, this was the grandest, the most intellectual,
the best calculated to fit them for independence.
Consider how much patient thought, how much observation of man and life,
how much sagacity, how much communication of mind with mind,
how many general councils, plots and marshalling of affairs,
How much slow accumulation, how much careful transmission of wisdom that labor demanded.
And what a school of civil capacity this must have proved to them who partook in it.
Hence, I think, the sober, rational and practical views and conduct
which distinguished even the first fervent years of the Revolutionary Age.
How little giddiness, rant and foolery do you see there.
No riotous and shouting processions, no grand festivals of the goddess of reason,
an obvious reference to the French Revolution,
No impious dream of human perfectibility, no unloosing of the hoarded up passions of ages
from the restraints of law, order, morality and religion, such as shamed and frightened
away the newborn liberty of revolutionary France.
Hence, our victories of peace were more brilliant, more beneficial than our victories of war.
Now yet another theme that I note in my initial chapter is that the colonial period is in
is in effect a kind of an incubator of the tradition of American liberty, even in places where you least expect it.
If you study the history of colonial Massachusetts, you find that it's not technically a theocracy.
The textbooks are not correct about that. A theocracy involves when the clergy are running the government.
Clergymen were not allowed to participate in the government of Massachusetts, so it's technically not a theocracy.
But the government and church worked very closely together.
It is true that they sought to exclude from the settlement people who were going to not only disagree with them in matters of religion but do so boisterously.
Those people were to be removed. Anne Hutchinson is an example. She was driven out of colonial Massachusetts. Roger Williams was driven out.
Many of them settled in colonial Rhode Island, Providence, which naturally became a haven of religious liberty because this is where you go if nobody can stand you in Massachusetts.
Everybody winds up in Rhode Island.
But the point I'm making is that you think of that example of Massachusetts, an example where they did not hold the modern view of religious toleration.
What they believed is that our community is going to abide by certain values and if you don't like these values then don't live here.
That was their view. So sometimes people have been inclined to say that well therefore colonial Massachusetts made no contributions to the development of American liberty.
and Liberty. Well, in a country and in a series of colonies where you saw consistent and repeated
statements of rights, the first such one is the Massachusetts body of liberties, drafted
in 1641. For a long time, the governor of Massachusetts, who was governor for a good
many years and then would go out of office and then come back, was a man named John Winthrop.
And Winthrop was of the opinion that there should be as few laws on the books in Massachusetts
is possible because that way the colonial judges in Massachusetts would have more leeway,
would have more discretion in their application of the Bible to particular incidents.
The people of Massachusetts were not so convinced that was such a good idea because they thought
that gives the judges far too much discretion.
So they wanted to establish a body of liberties, a statement of what exactly the colonists'
rights were and what exactly constituted that sphere that government was not allowed to
to penetrate around the individual.
And so they actually voted Winthrop out of office because he refused to accept this.
And with him out of office in 1641, citizens of Massachusetts drafted and approved the
Massachusetts Body of Liberties, which consists of about a hundred provisions, many of which
sound very familiar to us because they're part of the English tradition really.
For example, the principle of no taxation without representation is right there in 1641
in the Massachusetts Body of Liberties, or the right to a trial by jury is likewise reflected
in this document, or the guarantee that no one shall be deprived of life, liberty or property
without due process of law is recognized in the Massachusetts Body of Liberty.
So this is a significant step even in a place that seems inimical to some, at least some
modern ideas of liberty.
And then finally, I always point out in the Massachusetts Body of Liberties, just because
There is also a statement in there prohibiting wife beating with the exception of when the husband is acting in self-defense.
They make an exception for that. I don't know who these women or men are.
It would be very interesting to find that out, but they put that in there in the Massachusetts Body of Liberties.
Let me say a brief word about Virginia.
Again, I'm sorry we have to sort of be a bit haphazard here, but that's the nature of talking about the colonial period in 30 or 40 minutes.
I want to say a word about Virginia because I think one of the great virtues of Virginia is, in our day and age, considered to be its greatest debit, its attachment to its own plot of earth, the Virginian's attachment to their locality.
Today, that's viewed as not very progressive and sort of backward that you're supposed to think of yourself as a citizen of the whole country.
You're not supposed to be confined exclusively to thinking about just Virginia or whatever state.
But there is something that's valuable about this.
Daniel Borsten, who is not a conservative or a libertarian to my knowledge, but he's an acknowledged historian from the, he was writing in the 60s,
Boorstin said this, he said,
I think it's safe to say that all the colonies had an attachment to the practice of self-government,
to making their own political decisions by and large without outside interference.
The British more or less left them alone with a few notable exceptions,
and so each of these colonies developed, with the potential exception of Georgia,
which is kind of a special case, developed a tradition of self-government.
of Government that they did not want to see interfered with.
And so any time, and this is a final theme from my first chapter,
any time it was proposed that two or more of the colonies should join together
in an inter-colonial confederation for some purpose,
each of those colonies was always careful to make sure that that confederation
did not go beyond the bounds that were originally established for it,
that it didn't attempt to exercise powers that no one had envisioned in the beginning.
This is an important theme in American history.
For example, I note the Confederation of New England
that was founded in around the 1640s and 50s.
This was a confederation of the New England colonies
that joined together as a defensive alliance in case of Indian attacks.
It makes reasonable sense that they would do this,
but what's noteworthy is that around 1652,
England and the Netherlands were at war in Europe
And so any time there's any war going on in Europe,
it always has the potential to spill over into the colonies.
If you're at war with England, its colonial possessions are fair game for you.
Well, the Dutch had possessions in what becomes the United States.
They had New Netherland, they had New York.
And so in 1652, they were at war with each other in Europe.
There's a possibility that there could be war,
there could be a colonial clash between English and Dutch here in the colonies
with each side arming its Indian allies.
So this is where the Confederation of New England comes into play.
Well, Connecticut and New Haven began to argue
that we need to go on an offensive war.
We need to, in effect, have a preemptive war, if you will,
to prevent any such Indian attacks
inspired by the Dutch here in the colonies.
Massachusetts, on the other hand, was not so eager for such a war
and immediately noted that in the Confederation of New England
there was no provision for an offensive war.
These were only strictly, in the strictest sense, defensive wars for which this confederation had come into existence.
Massachusetts did not want to be dragged into a war that was initiated by a couple of particularly zealous members of the confederation.
So she chose that moment, Massachusetts, to stand up and say, we have a veto over this, or we have the right to say,
we're not going to take part in something that's not strictly defensive.
So that's an example of a confederation whose powers were challenged by one of its members,
suspicious that it was going beyond what its original mandate had been.
A second example of a confederation that failed or that was at least challenged
is the Dominion of New England in the 1680s.
The King of England grows a little tired and impatient with the colonies time after time
because they oftentimes refuse to abide by the trade regulations that have been imposed on the colonies.
The New England Colony
and then even other colonies later and in effect collapse these colonies into a single blob in effect
into one single governing unit governed by a governor chosen by himself.
So this is obviously the most grave threat to colonial self-government that has ever been posed up to that point.
Well again you can imagine how people feel about this.
They have this attachment to self-government and now their legislatures are closed
and everything is shut down or replaced by one single governor appointed by the king.
This particular governor, the best known of them who govern the Dominion of New England,
is a man named Sir Edmund Andros whom everyone hated.
Now, even if he had been Mother Teresa, it would have been a difficult mission to carry out
because nobody likes the Dominion of New England.
But they picked Sir Edmund Andros who may as well have had horns on his head from the colonial point of view
because he would, for example, levy taxes just on his own say-so.
I think we should raise taxes.
Well, you know, there happens to be an old and venerable British tradition against doing that.
And when people would point this out to him, they'd get thrown in jail.
Well, again, you're not really supposed to do that either.
So what finally happened is that when in England the Glorious Revolution occurred
and James II had to flee,
when this news got back to the New Englanders that the man who had established this dominion of New England
and imposed this Sir Edmund Andros over them was no longer the king,
they decided now is our chance to act,
and they threw out Andros, they put him in jail along with many of his assistants
and ended up shipping him back and the dominion of New England was no more.
William and Mary had no desire to carry this on against the colonists.
So that's an example of a confederation that was brought down by the colonists.
Or you have the example of in the early 1750s,
Benjamin Franklin said, why don't we all come together and have a union of the colonies?
And when he proposed that, in effect, you could hear crickets in the background.
Like there was no, nobody seconded it, no colony supported it.
So at the time that the Constitution was drafted, you had already had three major colonial confederations that in one way or another had been challenged.
The Confederation of New England, the Dominion of New England, and finally the Albany Plan of Union, which was Ben Franklin's plan.
So it's not surprising that when the states decided to ratify the Constitution, they did so, but they also got guarantees that this new federal government would not interfere with its rights to govern itself.
The Theory of Money and Credit
That the U.S. Constitution, which we're going to talk about next time, was intended to be
what some people have called a living, breathing document, that it's supposed to change with
the times.
Like, hey man, we know we can't live in 1787 forever, we've got to get with the times,
you know, we can't live according to what James Madison wanted forever, we have to change
with the times.
And so it's been thought that the Constitution was intended to sort of change with the times,
The Theory of Money and Credit
Who's doing this living and breathing?
Who's deciding what the new interpretations are?
In effect, when you say, well, hey, man, the Constitution has to change with the times,
what you're really saying is judges get to decide what the Constitution means.
It means that a judge in 1944 can say, well, up till now we've interpreted this clause this way,
but I now interpret it that way.
Nobody knew it was going to be interpreted this way until I said it,
and you're all stuck in this Constitution.
Well, you know, that is the sort of thing that would have given somebody like Thomas Jefferson pause.
Somebody like Jefferson would not have said,
the Constitution can never be changed in any way.
It is holy writ come down from heaven.
He would not have said that.
What he would have said is that if there's something you want to change,
then you do so through the process that we've inserted in that document,
namely the amendment process.
The worst thing you can do is simply say,
well, gosh, we'd sure like to do X, Y or Z,
Jefferson said that if you do that, you may as well have a blank piece of paper for a constitution.
What's the point of having one?
What I want to suggest is that the colonial period, in effect, helps us to appreciate this point.
Because when we look at the relationship between the colonies and Britain,
particularly from the 1760s onward, here's what we see.
We see that up until that period, with the exception of the colonial period,
1760s onward. Here's what we see. We see that up until that period, with the exception of the
Dominion of New England and a few minor exceptions here and there, the colonies have more or less
been allowed to govern themselves. The 1760s come along and the British government, which is in
tremendous debt at the time because of the French and Indian War, turns to the colonies looking for
revenue. Now you all know this and they began to impose more regulations on the colonies and they
and begin to impose acts that seem to violate the tradition of local self-government among the colonies.
The colonies had levied their own taxes and they had governed themselves variously.
Now, all of a sudden, it's being demanded of them that they pay this or that direct tax,
that they do this and that, that if they're suspected of violating one of these tax acts,
that they are presumed guilty and they are not entitled to a jury trial.
That was the case under the Sugar Act of 1764.
So there are all kinds of things that British began doing in the 1760s, that from a traditional
British point of view seemed to violate, well, traditional liberties.
Well the colonial position pretty much is this.
They argue that if the British do something that violates tradition, that is just out
of the blue, that has no roots in the British past, then that is unconstitutional.
Now when the colonists say unconstitutional, obviously they don't mean the U.S. Constitution
The British Constitution is technically not a written document. It's a collection of customary practices, traditional liberties, some documents, the Magna Carta would be considered to be part of the constitutional tradition, but there isn't any one document you can point to. You can't say that's unconstitutional because it violates Article 7. There is no Article 7.
So the colonists, when they say something is unconstitutional, they mean it violates tradition, it breaks with tradition.
Now the British response to this was, they thought that was kind of a quaint and cute little view,
but by the 18th century in Britain, the mainstream view was that if Parliament proposes something, then that makes it constitutional.
If Parliament approves of something, then it's automatically constitutional because Parliament said so.
And so the colonists and the British had a fundamental disagreement with each other about the nature of the British Constitution.
The colonists argued that if something violated tradition, it violated the British Constitution, ipso facto.
The British argued that if we say it's constitutional, then it is.
This kind of sounds familiar, a little bit like what our Supreme Court does all the time, right?
Well, wait a minute, I didn't think that the Constitution meant this. Well, we say it does, and that's the end.
Well, in effect, that's what the dispute was about.
In 1761 there was a dispute in Massachusetts involving the general writs of assistance, which were general search warrants that were pretty much granted to British officials at the drop of a hat to search your home or your warehouse for contraband, for goods you'd smuggled in and so on.
And what's interesting is that the colonies opposed these writs of assistance for two main reasons.
One, they're all guilty. They've got tons of contraband in their houses. Of course they don't want you to go in and look around.
But secondly, on these grounds, that when in the world, in the history of Britain,
has the government invaded our privacy in this way, it's a violation of tradition.
It's an innovation. And when they said innovation, that was not a compliment.
And innovation is something we need to take note of.
Their argument was that the government must be restrained by tradition.
This is an old medieval view.
The idea of the medieval king was not that he could simply do whatever,
Act, however, his whims dictated, but that he was subject to tradition.
He had his certain customary rights, but beyond that he could not go.
That was the colonial view of the British government.
And so these writs of assistance violate tradition.
And the colonial lawyer James Otis got up and argued in Massachusetts that a man,
he actually said, a man's home is his castle.
Sort of reminds me of Ralph Crandon.
In this castle, I'm the king, Alice.
Well, in any event, a man's home is his castle,
and the British do not have this right traditionally to violate my liberty to be free of unreasonable searches and this sort of thing.
Well that's the nature of the argument, that's the nature of the dispute between them.
The British view we might even call legal positivism and if I may oversimplify this a bit,
legal positivism in effect says that the legislator does not have to give a reckoning as to why he's made the law the way it is.
If the law is a certain way then that's all there is to it, you can't judge the law.
Law. No institution can stand in judgment of the law. So for instance, when I was growing
up and my mother would say, okay, it's nine o'clock time for bed, you know, let's say
I was, I don't know what age that was, 17 maybe, I don't know what age that was, young.
But I would say, I would say, well, why? Why do I have to go to bed? And what was her answer?
Because I said so. Because I'm the mother. Well, that's legal positivism. I don't need
to give you any reckoning of this. You don't have any leg to stand on. You don't have any
Alternative Tradition to Appeal to.
I couldn't have said to her,
well mom, I believe that your bedtime,
it violates longstanding tradition in this household
and so I'm not going to stand for it.
Or I believe that your bedtime violates
traditional Christian principles.
Well, that would have just made it worse.
Let's just put it that way.
If I tried to argue on those, it would have just made it worse.
I'm going to bed at 8.30 at that point.
So in effect, if you were to say to a legal positivist,
well, I'm not going to obey such and such a law
Law, because a higher law, in effect, like Antigone, exactly right, the example of Antigone,
the king says I'm not supposed to bury my brother, but there's a higher law involved
in kinship that says that I owe him this filial obligation of burying his body, not just allowing
it to rot and be eaten. That's legal positivism. Legal positivism is the idea that you have
And so, if the colonists are saying that British activities violate tradition, well, they're doing something the British consider to be illegitimate.
They're taking some outside institution, namely tradition, and using it to judge the law.
But a legal positivist would say, you can't judge the law. The law is what it is and live with it.
So this is the nature of the dispute, and you see this repeatedly, that there is so much in the colonial idiom that is conservative.
The colonists are saying the British are engaged in innovation.
John Adams, when he's complaining about the Stamp Act, says this is an innovation.
And again, that's not a compliment. It violates tradition.
So that's when I say that the colonists were conservative.
I mean it in that sense that they are distrustful of innovation.
And what they want to do is just simply conserve the way they've been living up to about 1760,
where they've been more or less left alone,
where the British have abided by long-standing tradition.
And in fact, the colonists were beginning to argue that,
look, we've been over here for a century and a half
and we've been governing ourselves.
So our own self-government has become part of long-standing tradition.
And so if you violate it,
you are automatically violating the Constitution.
So there is this fundamental constitutional dispute
that seems difficult to see how you can resolve it.
And in fact, of course, it did finally come to arms.
Now, what does all this have to do with the living, breathing Constitution stuff?
Well, this is my super-duper last point, and that is that when Jefferson advised in the 1790s
that our peculiar security is in possession of a written Constitution,
by, of course, the 1790s, the U.S. Constitution, which is written, had been drafted,
and he warned Americans not to make it a blank paper by construction,
by your own broad interpretation of it.
This is the background we need to have in mind to understand these remarks.
Again, the amendment process can be used if there's some defect in the Constitution.
But simply to approve the exercise of federal powers that were never delegated to the federal government,
just on the grounds that a really strained interpretation of the Constitution allows them,
or the amendment process is too time consuming or cumbersome,
you may as well have no written Constitution at all.
You may as well go back to the British system,
Where they have no written constitution and the constitution is whatever the government says it is.
There's your living, breathing constitution. The constitution changes with the times.
Unfortunately, it also means that the protections of your rights change with the times.
Because who gets to decide what the constitution means today?
Well, typically the government itself, the very institution that is supposed to be restrained by constitutions.
Joseph Story, the great 19th century American jurist, himself said,
Even though he believed in a fairly broad interpretation of the Constitution, he nevertheless said the Constitution must quote have a fixed, uniform, permanent construction, not dependent upon the passions or parties of particular times, but the same yesterday, today and forever.
So the evolution of this unwritten British Constitution, the colonists learned, basically always seemed to move in the direction of more power for the British government and fewer liberties for the colonies and the people.
The written American Constitution, on the other hand, was intended to say what it meant
and not to allow for the kind of insidious evolution that the colonists had found so dangerous in the British Constitution
whose authentic meaning had proven so hard to pin down.
So Americans therefore gave their lives fighting against a living, breathing Constitution,
which is a fact worth bearing in mind the next time such a thing is invoked.
Okay, thank you for your kind attention, ladies and gentlemen.