Neglected since the Civil War, its impact on our national political debate may be just beginning
Volume 7 in the Conservative Leadership Series
“I once saw a book advertised, entitled New Views of the Constitution. I was startled! What right has a man to start new views upon it?” So exclaimed Supreme Court Justice Joseph Story, in a lecture at Harvard Law School in the 1840s. And he had a point. But had he bothered to read John Taylor’s book, he would have found that what was “new” about the Virginia statesman’s defense of state sovereignty was not so much his interpretation of the Constitution as the revelatory new evidence he marshaled to support it. Scholar James McClellan explains, in his new introduction to this landmark work:
“From 1789 down to the publication of New Views [in 1823], American political leaders and members of the bar had struggled with the fact that the original intent of the Framers was, in many cases, a mystery. The proceedings of the Federal Convention, it will be recalled, were held in secrecy. The Journal that was kept during the course of the deliberations, recording only the votes taken, had been given to Washington when the Convention adjourned. Washington in turn deposited the Journal with the Department of State. A few members of the Convention, including Madison, had kept notes on the debates, but by the common agreement on secrecy withheld them from the public.
“… This left only the essays written by the Federalists and Anti-Federalists during the ratification struggle as sources — and secondary at that — of information on the thinking of those who framed and adopted the Federal Constitution. Since the Anti-Federalist essays were never collected and reprinted, the Federalist papers written by Hamilton, Madison, and Jay were virtually the only materials available in the early republic that shed light on the original intent and meaning of the Constitution, other than the document itself.
“What occasioned the publication of John Taylor’s New Views of the Constitution, and gave it its title, was the decision of Congress in 1818 to break the pledge of secrecy and publish the Journal. Once the seal of secrecy was broken, the notes taken by Robert Yates, a delegate to the Federal Convention from New York, were also released and published …
“Armed now with original source material on the intent of the Framers, Taylor proceeded in New Views to examine the constitutional law of the Supreme Court and the essays in The Federalist in the light of the Journal and Yates’s notes. What he discovered were distortions of original meaning and a nationalistic bias permeating The Federalist.“
In other words, the views Taylor expressed were “new” only to the men of his day, and actually represented a return to the views of the men who wrote, and ratified, the Constitution. Result? What McLellan calls “a neglected classic” and “one of the most closely reasoned analyses of the original intent of the Constitution from the states’ rights perspective ever written.”
The REAL Constitution (isn’t it time we tried it?)
Taylor takes the Constitution as ratified by the sovereign states as his starting point. No creating governments out of whole cloth for Taylor. Nothing but the thing proposed by the framers and approved by the state conventions. And that thing, according to Taylor, was a compact among sovereign states, which, while remaining sovereign, delegated certain powers to their non-sovereign creature, the federal government. Using the Constitution so approved, the convention Journal and Yates’s notes, Taylor shows that Hamilton’s and Madison’s nationalizing ideas had been aired at the Convention … and then summarily defeated. We offer just a few highlights of Taylor’s analysis — painfully aware that they don’t begin to prepare you for the intellectual excitement in store:
- What the Framers meant by a “federal” government. Why they repeatedly rejected use of the words “national” and “supreme”
- “Irresistible evidence” that “no negative upon [power to negate] state laws was delegated to the federal government, or any department thereof” — including the judiciary
- How we know that the Framers never even considered giving the Supreme Court sole power to interpret the Constitution
- Functions and powers of taken for granted by today’s federal legislators (e.g., public funding of education) — but which were considered and explicitly rejected by the Framers
- How we know that, as the Framers understood the Constitution, “the states may take away all the powers of the federal government, whilst that government is prohibited from taking away a single power reserved to the states”
- What is the meaning of the Constitution’s phrase making itself “the supreme law of the land”? The Framer’s debates — and the plain sense of the words — belie today’s conventional reading
- Strong proofs that the “nationalizing” or “consolidating” party at the Convention knew that the Constitution as ratified represented a total defeat for their cause
- Why Hamilton, the strongest voice for a “consolidated” national government, “quitted the convention in despair”
- How Hamilton and Madison, in The Federalist, later falsified some issues debated at the convention, to argue for a more centralized form of government than the Framers envisioned
- Hamilton’s misleading use of “illegitimate” terms borrowed from “a rejected plan of government”
- Disproved, by the convention Journal: Hamilton’s notion of dual sovereignties, state and national, with the latter dominant
- Also disproved: Madison’s distinction between a “federal” senate and a “national” house of representatives
- How Article II of the Constitution “definitively excludes a national character from the federal government”
- How all of the language in the Constitution is strictly “affianced to the idea of a league between sovereign states, and hostile to that of a consolidated nation”
- How “every step” in the ratification process proved it to be “a federal and not a national act”
Throughout the book, Taylor presents illuminating insights into the very structure of our constitutional order. His treatment and use of such terms as “federal,” “Congress,” “delegate,” “representative,” “people,” “nation,” “state,” “national government,” “consolidation,” and “union” are illuminating indeed.
Later American statesmen such as John C. Calhoun considered Taylor must reading for an understanding of the nature of the American federal republic. For that historical reason alone, New Views is worth reading. And in our era of bloated government and rule by judicial fiat, Taylor teaches us something we need to remember about our constitutional order.