Luther Martin understood human nature with a genius of sheer power, foresight, and brilliance. He believed that there can be no union without subsidiarity because without it, governments run with the cyclical and typical tyrannies of humankind.
Forgotten Founder, Drunken Prophet, The Life of Luther Martin, by Bill Kauffman (Intercollegiate Studies Institute, 2008)
“Happiness is preferable to the Splendour of a national Government” —Luther Martin to the Constitutional Convention, June 28, 1787 (Kauffman, 41)
This book takes no prisoners. Nor does it gloss the favored actors. It sides with Martin’s stance at the 1787 Convention but does not disregard his faults. As for the usual suspects—Madison, Hamilton, Wilson, and Morris, Washington et al—Dr. Kauffman simply sets the record clear. The usual nomenclature is proven false. Madison was not the Father of the Constitution. He was severely blunted, just not decisively. Instead, a vaguely nationalist hybrid of Madison and Martin came about, absent all defining nomenclature, e.g. “national” or “federal.” It’s been a battle that in the countering of Time and despite Jefferson’s later intrusion, Madison has won. The inexorable excretions of human nature in the turmoil of political and commercial battle would finally yield what Madison, Wilson, Washington, and Hamilton wanted: A nationalized State dwarfing and dismissing the sovereignty of the individual States. Today’s Constitution, as it runs our government in the hands of national politicians and courts, is decisively Madison’s Constitution. His imperial twin pillars: 1) negating the sovereignty of the States and 2) negating State legislation by the national legislature (or courts, a later addendum), have come true. Only a modicum of sovereignty continues to reside in the States.
Yet Madison has come down to us honored as if he were true to the Virginia School of subsidiarity and personal sovereignty. In fact, he wasn’t. Not in 1787. Nor were many Southern leaders at the ’87 convention. The True Federalists like Martin, Gerry, Mason, and Yates sailed into a gale storm that was prepared to meet them. The 1776 spirit for liberty was waning and an aristocratic yearning for strong government had risen. Washington, presiding as President of the ’87 Convention, wrote to Hamilton on July 10: “The Men who oppose a strong & energetic government are, in my opinion, narrow minded politicians, or are under the influence of local views.” And he was true to his word.
When George Mason refused to sign the Constitution, he became Washington’s “quondam friend” as in “once, long ago and gone”—then he slipped out from history. They never met again. Two years after the Convention, Mason wrote his son John on business in Bordeaux, France, about the loss of Washington’s friendship. “You know the friendship which has so long existed (indeed from our early youth) between General Washington and myself. I believe there are few men in whom he placed greater confidence; but it is possible my opposition to the new government, both as a member of the national and of the Virginia Convention may have altered the case.”
Yet Mason is the friend who lent Washington the cash to attend the Convention to begin with, the friend from childhood who stood by him through the trials of early manhood, the trials of the revolution, who visited with him along the banks of the Potomac to enjoy the Seasons of the year, discuss the newest methods of agriculture and the intricacies of property law since Mason, though untrained as a lawyer, had taught himself those intricacies with such thoroughness that scarcely anyone in the Colonies knew more; he was the friend who planned with him the needed efforts for liberty from the British Crown, who gave to their Virginia its eternal Bill of Rights and through Jefferson, America’s Declaration—that “quondam” friend!
Do we really understand the “Fathers” of today’s nationalized country? Their aristocratic sniff of disdain for those who disagreed and stood firm against their new “union”?
Unlike most biographies, this one is of a man’s ideas and the battles he fought to obtain their ascendancy. It is not about his day-to-day life, though enough is given so you can understand him. At the end of a short Introduction titled “The People Who Lost,” Martin is quoted that he wished to be remembered for his resolute defense of True Federalism by standing firm against the 1787 Convention’s document. Dr. Kauffman answers, “Consider it done, Luther.” And it is done. The book is only 3 Chapters: “The Philadelphia Story,” “Maryland, My Maryland,” and “Of Chase and Burr and Unmarked Graves.” This last should be re-titled, ” Of Jefferson, Then Chase, Burr, McCulloch, and of Unmasked Graves.” If you believe in subsidiarity, personal sovereignty—which is the basis of State sovereignty—the agrarian cultural/spiritual values of family and locale, that a Republic exists for the security and peaceable governance of its member States rather than for the governance of individuals who are governed by their States, you ride with Martin, not Madison.
From the beginning, this book throws you into the middle of the 1787 arguments. Dr. Kauffman writes with flair, conviction, and accuracy. He is fun to read and never spares a joust. He is no part-timer. He does slip into an occasional Bill Buckleyesque vocabulary but he is always understandable and intuitive. Yet the story is regrettably short on victory and long on sorrow. Martin comes through volcanic, full of spittle and claws whenever he speaks. But he lost. Not alone but covered with disparagement from the winners, the usual suspects.
Dr. Kauffman gives a short overview of some of the potential True Federalists who for various reasons did not attend: Sam Adams, Patrick Henry, George Clinton (who sent Yates and Lansing, True Federalists in his place but both of whom in disgust left the Convention July 10 after recognizing the writing on the wall), Samuel Chase, Jefferson (in France), Richard Henry Lee. There are reasons for each. None seemed to have had an inkling of the covert operation of the nationalists to bring the Articles of Confederations to its knees.
At the ’87 Convention Martin’s views take flight. On May 29, Madison through Edmund Randolph offers his Virginia Plan. Martin arrived on June 9. Two things astounded him: the thorough and grand nationalist sweep of Madison’s Plan and the enforced secrecy of the Convention down to the posting of sentries at the doors.
On June 15, Patterson unveiled the New Jersey Plan, the federalist answer to Madison’s nationalism. It proposed true amendments to the Articles of Confederation and not, as the nationalists had, a broom brushing the Articles to oblivion and with them the equality, independence and sovereignty of the States. The New Jersey Plan lived a mere four days until June 19. On that day, Madison rose and gave a taut polemic against the New Jersey Plan. When he was done, Rufus King rose and motioned for the New Jersey Plan be set aside as Madison had argued. Incredibly, this history-honored Convention where speech has been thought to be free and discussion open on all sides was about to meet the true mettle of nationalism. The Convention became like a Court ruling on whether honestly declared ideas were admissible for debate. Federalism lost, seven-to-three with one divided vote, Maryland.
Every Southern State voted with Madison. Maryland divided because of Martin. The lonely three States—New Jersey, Delaware, and New York—were done (notwithstanding Hamilton). Only eleven States voted. New Hampshire would not arrive until July 21. Rhode Island never attended a day.
Dr. Kauffman asserts, I believe correctly, that this June 19 vote, not the July 21 Connecticut Compromise vote which traditional historians acclaim, is the crucial and critical vote. Simply, this vote on the nineteenth threw any chance of a True Federal Constitution out the window. The Virginia Plan became in Dr. Kauffman’s words “the markup document” for the eventual Constitution (Kauffman, 32). It would always be the backboard for discussion and decision. Nationalism was on its way, one way or another.
There’s no need to express point by point the arguments and counter-arguments here. They are a multitude, amply discussed and arraigned. You’ll enjoy the ripostes when you read this book. But here’s a shortcut to understanding what was happening in that dreary room where free, countering thought was quickly suppressed, where how the True Federalists, Martin, Mason, et al were correct in their prognosis on nationalism and the fake federalists, Madison, Hamilton et al prevaricated and fabulated to victory.
We need only look at four documents: the Articles of Confederation, the Virginia Plan, the New Jersey Plan, and the Final Constitution. Keep in mind that the word “union” was not then or now an independent legal term of art or definition as for example is “contract,” “compact,” or “republic.” Here’s the surmise:
Articles of Confederation:
- No use of the word “national”
- No use of the word “federal”
- Uses the phrase “the United States in Congress assembled” to designate the equality and power of the States acting together on behalf of one another
- Uses the word “Union” to demonstrate solidarity of equal partners
The Virginia Plan:
- Always uses the word “national” in connection with the Executive, the Legislature, the Judiciary, the Treasury
- No use of the word “federal”
- No use of the phrase “the United States in Congress assembled”
- Uses the word “Union” to define an aggregate, singular formulation of the People of the States and not the Peoples of the differing States
The New Jersey Plan:
- Always uses the word “federal” in connection with the Executive, the Legislature, the Judiciary and the Treasury
- No use of the word “national”
- Uses the phrase “the United States in Congress assembled” to designate the equality and power of the States acting together on behalf of one another
- Uses the word “Union” to demonstrate solidarity of equal partners.
The Final Constitution:
- Never uses the word “national”
- Never uses the word “federal”
- Never uses the phrase “the United States in Congress assembled”
- Uses the word “Union” in a poetical, undifferentiating phrase that is both singular and plural at once, mystifying the connectivity of the States. This “union” is maybe the People in aggregate (singular) of the uniting States or maybe the Peoples (plural) of the differing States uniting as States. Or both meanings as a reader may see fit. It will depend on who you ask and the circumstances in contention.
The founding text of this Constitution would birth a deliberately vague, oily-worded Constitution, neither specifically national nor federal. They had sanitized True Federalism out of the document and used the coverlet of false-but-maybe federalism to sneak nationalism into power.
Is it any wonder we eventually endured a war coarsely engendered by the question of sovereignty when so easily any interpretation, any philosophic or political difference could be argued from either of two or more opposing and conflicted understandings? 150 years after that bloodiest war of our history, the question still rises. In 1819 in Maryland v. McCulloch, Marshall embedded the aggregate, singular point of view in hopes of avoiding any conflict of understanding in the future. Neither Jefferson nor any True Federalist has ever accepted Marshall’s mischief.
I do not conceive we can exist long as a nation without having lodged somewhere a power, which will pervade the whole Union in as energetic a manner, as the authority of the State Governments extends over the several States. —George Washington to John Jay, August, 1786 (Kauffman, 18)
Without doubt [Luther Martin was] the least honored delegate to the Constitutional Convention… (Kauffman, xvii)
Martin rises on June 27 (again on the 28th) and gives a long, long consummately tedious reply to Madison. But the damage was done on the 19th. There’s no turning back. It’s also the speech that cements Martin as an excessive irritant and replete bore. All his public life he orated with a comprehensive, in Taney’s words “utter disregard for good taste and refinement in his dress and language and…manner of eating” (Kauffman, xviii). Some of his best work was done, as the saying goes, “under his cups.” He was an unfortunate drunk. Yet he forever objected to the growth of centralized power and never glided passed a necessary objection or point of support. Historians, not quite uniformly, have pilloried him since.
Yet this man understood human nature with a genius of sheer power, foresight, and brilliance. Rehnquist considered him one of the ablest lawyers America has produced. But at the ’87 Convention, he was the burr under the nationalist saddle. Along with Mason and other True Federalists, he forced them to ride and ride and show who they truly were. The proof is in the prophecy. He was correct. They were not. As Dr. Kauffman observes, the nationalists were not able to see beyond General Washington while the Martins and Masons, the True Federalists, foresaw our modern Presidency and the ravaging effects of government by Empire (Kauffman, 106).
Leaving Philadelphia on September 4, never to return, he was not present on September 12 when the Chairman of the Committee of Style, Connecticut’s William Johnson, who sat out the Revolution rather than actively join the cause of liberty as Dickinson did because he disagreed with secession from the Crown, presented the Preamble re-styled to read, “We, the People of the United States…,” rather than the original, “We, the People of the States of…” naming each individually.
It was an egregious, stiff-nosed subterfuge, hopelessly partisan and typical of the nationalist tenor in this Convention. No delegate believed the people of the States individually would approve a “national” government. But “We, the People of the United States…” wormed its way among the remaining delegates unhindered—partly because Martin wasn’t there. Not even Patrick Henry’s thundering in Virginia could stop it.
Some historians like to muse along arcade mirrors in their minds that uncertainty about which States would and which would not approve caused this seismic change. Can we ever stop fumbling about our Founders? This was likely the greatest, most literate community of pensmen in human history! And they could not solve a little problem like how to fashion a Preamble so all the States keep their character as sovereign States when joining this new Constitution? Not so oddly, the Confederate Founders, with not more literary talent, faced the same problem and solved it: “We, the People of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government…” Now was that so hard? And there’s that word “federal,” open and secure, for the entire world to see.
Anyway, Gouverneur Morris later claimed he re-wrote the Preamble specifically to put across his view of how things should be. Good for him, good for Madison, for Washington—for all the usual suspects.
But this intrepid Committee did not stop there. This Committee consisted of Johnson, Hamilton, Morris, Madison, and Rufus King—all firm nationalists. On July 5, Morris bellowed, “This Country must be united. If persuasion does not unite it, the sword will.… The scenes of horror attending civil commotion cannot be described, and the conclusion of them will be worse than the term of their continuance. The stronger party will then make the traytors (sic) of the weaker; and the Gallows & Halter will finish the work of the sword” (Kauffman, 47-48). Morris was seventy-four years ahead of his time.
Then they sanitized the last inkling of True Federalism from Martin’s proposal for a Supremacy Clause—the one contribution customary historians find praiseworthy. The Convention delegates wanted some sort of understanding that the national government would be held to a higher prominence than the States if there were conflicts between the laws of Congress and the States. Martin took his version largely from the New Jersey Plan that contained a Supremacy Clause. The Virginia Plan, “the markup document,” needed no Supremacy Clause because the national Congress was supreme and could negate any State law.
Martin’s suggestion comes across as a compromise. Madison’s Notes for July 17 read that Martin proposed:
that the Legislative acts of the U.S. made by virtue & in pursuance of the articles of Union, and all Treaties made & ratified under the authority of the U.S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants-& that the Judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding’ which was agreed to nem: con: [i.e., the Convention agreed without disagreement].
Now notice how this nationalist Style Committee cleaned up Martin’s proposal. It became Article VI, Clause 2:
This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Even the lint of True Federalism is brushed away. Those 3 little words, “of the land” cover the whole of the United States, the respective States losing any distinction. Even more, the National Laws will blot not only respective laws of the individual States but, specifically, the Constitutions of the States.
A sweep for Nationalism: Only the Nation as a single polity remains. Carefully clear while courting ambiguity, the Preamble gives us One People and the Supremacy Clause One Land. One People, One Land! The Style Committee knew their posterity’s imagination, after all, a merely human imagination, would slide-slip into “We are One Nation, One National Government!”
II. The Maryland Convention
The first thing I have at heart is American liberty: the second thing is American union. —Patrick Henry to the Virginia Convention (Kauffman at 82)
It was a very short convention, April 21 to April 28, 1788. The True Federalist leaders, Samuel Chase, Martin, and William Paca arrived three days late. By that time the Convention was truly over. In those short three days, the Nationalists closed the door to any debate and required an up or down vote on the newly designed Constitution. It was June 19 of the year before all over again! On April 25, William Paca rose to deliberate amendments and was quieted quickly, efficiently and almost forever. The vote in favor of the new Constitution was sixty-three-to-eleven.
Paca voted for acceptance and in return was allowed to speak now that any danger of delegates transitioning to True Federalism was over. A Committee of thirteen was appointed to vet his proposed amendments. Some were approved: e.g., jury trial, freedom of the press, protection against search and seizure and a kind of 10th Amendment that the national Congress shall exercise no power except what is expressly given to them—as if that ever alone stopped a political imbroglio.
As telling is a sampling the Committee refused to endorse: no standing Army during peace unless authorized by two-thirds of each house of the national legislature, protection of religious liberty, the right to petition, the protection of State constitutions against encroachment by treaties, a bar to any State militia to march across the boundary of an adjoining State without permission of that State’s government.
Martin himself could not rise to speak. He had a severe case of laryngitis. Anyway, the fight was over. Maryland was the seventh State to approve and two more were needed for the necessary nine. But Martin would not in any future convention or on any stump fight this document again. Instead, unlike many other True Federalists, he took a vow not to seek or accept any position under this new Constitution (Kauffman, 117).
Instead, he held the office of Maryland’s Attorney General for more years than anyone else in Maryland’s history. Thirty years of pugnacious brilliance and most often success. He became an admired, feared, dreaded and beloved member of the Maryland Bar. Two cases before the newly established national Judiciary and one before the newly minted Senate of the new United States bear his name as legal counsel. They are important to remember.
III. Of Jefferson, Chase, Burr, and McCulloch
Dr. Kauffman treats these topics fairly quickly but enough so you can realize much of their importance. The following is to fill out a little more so you understand a little more.
Samuel Chase was Martin’s friend and fellow True Federalist, but Chase switched to Hamilton’s party and in 1796 went on the bench of the Supreme Court. He could be erratic and prejudicial, to say the least. When Jefferson assumed the Presidency, Chase came within the crosshairs of Jefferson’s notion to clear the national government of such tendencies. A Senator and a Circuit Judge had already been impeached and removed when Jefferson moved against Chase.
But Jefferson had already lost Luther Martin, once a true associate for limited government when he incorrectly named Martin’s father-in-law, Michael Cresap in his Notes on the State of Virginia as the man who slaughtered the family of Logan, a Mingo Chief. Jefferson was wrong (Kauffman, 118 – 121). Despite having a letter in 1798 from George Rogers Clark that Michael Cresap did not murder Logan’s family, Jefferson never retracted his statement. Since Cresap had passed over in 1775, Martin took it on himself to publicly right his father-in-law’s reputation. He became Jefferson’s implacable enemy to no good fortune for America.
In 1805, when Jefferson at the urging of John Randolph of Roanoke, moved to relieve Chase from his Supreme Court seat, Martin eagerly took to defend his friend and blunt his family’s detractor. Odds were against him as the Senate broke twenty-five-to-nine for Jefferson’s party. The Senate needed a two-thirds vote (twenty-two Senators) on any of eight articles to convict. The most any article received was nineteen. Martin worked assiduously and built his defense on one clear principle, “Our property, our liberty, our lives can only be protected by independent judges.” The Senate Trial began on February 4, 1805, and on March 1, 1805, Chase was acquitted on all counts. Martin refused any fee. Whatever his intentions for his friend, he had to enjoy giving Jefferson a bloody fist.
Almost two centuries later, Chief Justice William Rehnquist gave Martin credit writing “(this decision) assured the independence of the federal judges from congressional oversight of (their) decisions” (Kauffman, 142). Chase remained and never forgot Martin’s upstart and courageous defense.
Some years later, when Martin suffered publicly from his usual lapses of decorum and some unseemly efforts at the Bar, a federal judge tried to maneuver Chase to hold Martin in contempt for appearing drunk in court. Chase quietly refused stating that “whatever may be my duties as a judge, Samuel Chase can never sign a commitment against Luther Martin” (Kauffman, 143-144). It was not a singular moment in Martin’s life. Whatever his excesses—and there were too many, his strengths of loyalty and personal courage, charity and a daily populated genius for legal matters reminded people of his perpetual value before the courts of Maryland and the United States.
Burr was of a different cloth. Aaron Burr was no street trickster. He was formidable in every endeavor and ambitious. When he refused to move aside so Jefferson could be elected in 1801, Hamilton had to step in and weigh the day in Jefferson’s favor. But the Vice Presidency was a small office for so large a character as Burr. He was self-bound to seek and occupy grander and more expansive thrones of power. Then, a private matter gone wild and treacherous came to an end at Weehawken Heights with his killing Hamilton. Burr became political anathema.
Martin was not particularly warm toward Burr though he had publicly supported him for President against Jefferson in 1801—what else should we expect? Here was the chance, again, to stand against Jefferson while meaning to elucidate a point of law peculiar for its time, the definition of treason in the 1787 Constitution.
On August 3, 1807, Burr’s trial for treason began. On September 1, 1807, he was acquitted of treason on the evidence presented. The trial was in the Circuit Court of Virginia where Chief Justice John Marshall sat for the trial. Marshall had been a witness for Chase in his trial in 1805 when Martin was counsel for Chase while Burr, as Vice president, presided over the trial in the Senate.
The 1787 Convention, wary of the misuse of the charge for treason in England’s past, added a new requirement: There must be “testimony of two witnesses to the same overt act” for conviction. Conspiracy alone, no matter how informed or testified to, cannot support conviction. Marshall and Martin ensured the jury understood this new definition of treason, which the young Constitution’s words demanded.
So Burr was acquitted, and suffering from the entire collapse of his political fortunes, he went abroad to Europe for several years. In the early 1820s, when Martin fell into penury and a near collapse of health, Burr took him to his home. There Martin remained, well cared for until July 10, 1826, when he took leave of this earth, six days after Jefferson had taken his.
Seven years earlier in 1819, Martin and Jefferson were, in spirit, mutually engaged for the last time. Yet this time conjoined in complete agreement. Jefferson was retired from public life and took no active part in the litigation. The case was Maryland v. McCulloch, a primordial case which opened the future path of the United States to its present pre-eminence among the Empires of history. In no small way, McCulloch set the course for the fulfillment of Martin’s prophecy that the endeavors of the nationalists in 1787 would fail and bring about the destruction of their own work. It was a case involving taxation by a State on the Second National Bank of the United States operating in Maryland. But McCulloch did more. It opened the dueling sovereignties to One People, One Land, and One Government.
Usually, historians argue McCulloch was the deciding clash between Hamilton who proposed the First National Bank and Jefferson who was against it for many reasons, one being that creation of a national bank was an unconstitutional assertion of national power, another that State sovereignty would be severely weakened. The historians have taken an easy way out. The struggle was far more dramatic and tells us a great deal about President Washington, maybe more than we wish to admit.
The following summary of the battle over the First Bank underlies Dr. Kauffman’s treatment of McCulloch. It may help you understand the gravity and import of Marshall’s decision nearly thirty years later on March 3, 1819, concerning the Second National Bank.
On December 23, 1790, Hamilton’s proposal for a National Bank went to the Senate. On January 3, 1791, the Senate approved and sent it to the House. At this time, Madison remained a close advisor to Washington besides a member of the House.
On February 2, 1791, Madison orated before the House a consummate speech claiming the Bank was an unconstitutional reach of power. He also believed it was harmful on the merits. He reminded the House that the powers of incorporation for a bank were refused at the 1787 Convention and to make Hamilton’s proposal law would loosen the Constitution from its restrictions.
On February 8, 1791, the House approved. Before the Bill reached Washington, he inquired of Edmund Randolph, his Attorney General and an aide de camp during the Revolutionary War, on the constitutionality of the Bill. On February 12, Randolph replied the Bill was unconstitutional.
On February 14, the Bill arrived on Washington’s desk. He had ten days to veto or it became law. Randolph provided an elucidating argument. Hamilton’s support in order to claim his Proposal constitutional had advanced both the Preamble and the “necessary and proper” clause. Randolph, noting that the Preamble had been raised as a defense of the Bill, pointed out that “if (the Preamble) is operative, (it) is a full Constitution in itself and the body of the Constitution is (becomes) useless.” In other words, True Federalism would be destroyed and all things would become possible and probable from a truly and entirely national legislature let loose in the oily reserves of politics. Since Preambles are not laws and are not used to construct laws, if it becomes itself “a full Constitution,” the Constitution itself becomes void. Some folks today call this the “Living Constitution.”
At this point, Washington asked Jefferson to advise on the constitutionality of Hamilton’s proposal.
On February 15, Jefferson responded with some ferocity that the bill was unconstitutional and warned that if approved, inter alia, the sovereignty of the States would be undermined. He also reminded Washington, as Madison had the House, that the Convention of ’87 rejected granting the national legislature the power to create corporations, specifically a bank.
Washington returned to Madison, asked the same question, and on February 21 received the same answer Madison gave to the House on February 2. Now Washington had the opinions of his Attorney General, his Secretary of State—both of whom had been Governors of Virginia and practiced attorneys—and from Madison who had fostered and propelled with Washington the efforts of the Nationalist movement to rewrite the founding law of the United States. In truth, it’s not too far to say that Washington could speak little to less at the Convention because Madison was his voice.
All three men, all from Virginia, Randolph and Madison having been present at the ’87 Convention along with Washington and Hamilton, all with formidable experience and reputations held the negative.
The Virginians resolutely raised the danger of unlimited power flowing into Congress and so, necessarily in the nature of humankind, total power would flow out and wreck harm on the country. Such powers can only hold sway in a national government, not a federal government. Subsidiarity is the sole defense against tyranny.
Madison claimed in private papers written after 1817 that Washington had engaged him several times on the constitutionality of Hamilton’s Proposal. The President remembered and understood the Convention of ’87 denying the grant of incorporation powers for a bank to the Congress.
But Madison noted that Washington was deeply perplexed. While the Virginians were united against the bank, Washington believed in the usefulness of a national bank and his inner feelings were predisposed to a liberal interpretation of the Constitution. Madison held out for a veto and prepared a Veto Message for Washington’s use if he so decided. Perhaps it almost came.
But on February 23, one day before the Bill would become law if left unsigned, Washington asked Hamilton to answer the Virginians. Hamilton nearly wrote a tome in response. Interestingly, he said nearly the same as the other three. But he added it was only natural that the word “necessary often means no more than needful, requisite, incidental, or conducive to. It is a common mode of expression.… The imagination can be at no loss for exemplifications of the use of the word in that sense. And it is the true one as in which it is to be understood as used in the Constitution. The whole turn of clause containing it indicates, that it was the intent of the Convention, by that clause, to give a liberal latitude to the exercise of the specified powers. The expressions have peculiar comprehensiveness.” In unacknowledged terms, the Constitution is a paper tiger. Or, in words more clear, this is a Constitution for a National government, not a federal government, and this is the way “national” is expressed in it, even though we could not use the word in 1787.
It seems apparent that Washington was looking for an out to grant Hamilton’s proposal. Now he had it, and so he signed the law. It’s what he believed in and he feared no national government. He had no use for the “local” politics of federalism. The military aristocrat in him was too strong.
The First National Bank would be gone in 1811. Now, in 1819, the Second Bank of the United States was working its path through the country and the enabling President had been Madison himself who once argued such a Bank unconstitutional.
Martin would be familiar with all this and argued forcefully and accurately the Tenth Amendment before Marshall and the Supreme Court. He argued the “plain meaning” of the Constitution’s text should guide the Court. But Marshall (“I went to war a Virginian, I came out an American”) was the true scion of Nationalism. He was Washington’s Judge Advocate at Valley Forge, and he declined becoming Washington’s Attorney General. Marshall used the Preamble as Randolph warned it should never be used, and he backed Hamilton’s reasoning on the uses of “necessary and proper” using similar definitions. Marshall’s renowned pen, delicate as a jeweler’s eye, fillet the Supremacy Clause restyled by the Committee of Style and claimed the United States are One People because the people all over the land had created the national government: Not the States. “It is the government of all, its powers are delegated by all, it represents all and acts for all” (Kauffman, 161). From Marshall to Lincoln is neither a hop nor a skip nor even a slight step—it is standing in place.
Martin did little more in his life. He would never again be in the cascading fire of political argument. Here was the delegate to the ’87 Convention who roared, “I would not admit the Southern States into the Union unless they agree to the discontinuance of this disgraceful (slave) trade” (Kauffman, 92). He and Mason had waged not only battle for a federal Constitution but for an end to the slave trade. Both quickly learned the commercial usefulness of the Slave Trade to New England. Not in Philadelphia and not in their respective State conventions would either sign the Constitution.
Martin was almost always alone and the world had its way with him. Though Burr cared for him tenderly for defending the outcast Burr had become, Martin went to a grave no one can find today. It’s been dug about and paved over. Ignored by historians and today’s world, he rests almost entirely unknown.
He had one signal honor: When destitute and infirmed, the Maryland Bar voted a $5 per year fee on all Maryland attorneys to practice law in the State. The proceeds went to the care of Martin in Burr’s home in gratitude for the work he had done for the people and the State of Maryland. Maryland has never so honored and recognized any other attorney.
What is not arguable is that Philadelphia created an expansive apparatus of government not conducive to facilitate harmony for the general welfare of sovereign States. Rather it did two things: 1) it created another State that could be whatever you could get it to be, because 2) that fourteenth State, a new Central government, created by grants of sovereignty from the original thirteen States diminishing themselves and the power of their people. It was not a delegation of powers but an outright grant.
This was not just some new apparatus of governmental form but a new Sovereign State, a fourteenth State, culled with grants of sovereignty by the original thirteen to join them as concurrent sovereigns. Martin and Mason understood that this New Sovereignty was an immediate and lasting threat to the peoples of the respective States, the true sovereigns of the land. It’s a mistake the Confederacy would correct in its Constitution seventy-four years later.
To explain more, the Founders created not a Constitution merely of dual sovereignty but scrubbed the Articles of Confederation, a truly federal Constitution, into a vague, strangely national, hardly federal Constitution of dueling sovereignties. From then on, however you interpret this new union, however you wish to call it—a national or central or general or, even worse and most misleading, a federal government—all four are in use from time to time—the new fourteenth State was in contention for superiority over every other State or group of States. How could anyone have thought differently? Many who did, let their objections slide. Martin and Mason did not. Each pays the price. Both live in the shadows of history to await Federalism’s rebirth in a new generation.
Explaining Hamilton’s abbreviated performance at the Convention, Forrest McDonald and Ellen Shapiro McDonald in their very informative volume, Requiem, write on p. 134: “For he knew in his heart that if the central government had the taxing power and if he could get in a position to manage its finances, he could remake the nation by that means alone.”
Hamilton was not alone in his understanding. Luther Martin knew as well and completely. From that understanding, he prophesied the doom of the Convention’s hallowed document. Martin’s underlying philosophy is painfully clear: There can be no union without subsidiarity because without it, governments run with the cyclical and typical tyrannies of humankind.
Republished with gracious permission from the Abbeville Review (August 2017).
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The featured image is a detail from a “Photograph of the Right Section of the Mural, The Constitution, by Barry Faulkner, 10/27/1936.” It is in the possession of the U.S. National Archives and has no known copyright restrictions. It appears here courtesy of Wikimedia Commons.