In the Kentucky Resolutions of 1798 — one of the most important and prophetic documents in American history — Thomas Jefferson made a simple and irrefutable argument. The Constitution is designed to define and limit the powers of the federal government. But if the federal government (including the federal judiciary) is the sole, exclusive, and final authority to say what the Constitution means, it can be expected to rule in its own favor, constantly expanding its own powers and usurping the powers reserved to the states. In short, if the federal government can define the extent of its own powers, we may as well not have a written Constitution, because its whole purpose has been defeated.
Jefferson was exactly right. It took a while before the Supreme Court assumed the power he feared it would, but it finally happened, and on a scale that would have astounded even Jefferson. In 1973 the Supreme Court made its Grand Usurpation, stripping the states of their authority to protect human life itself.
The Constitution had been virtually abolished by “interpretation” — turned into what Jefferson called “a blank paper by construction.” Anyone who thinks Jefferson would be a liberal in our time, by the way, should consider that he recommended that sodomy be punished by castration. He was especially suspicious of claims of “implied” powers in the Constitution (as in his famous debate with Alexander Hamilton over the issue of a national bank).
It doesn’t take much imagination to guess what Jefferson would think of the U.S. government today, when its supposed “implied” powers are virtually infinite and nobody bothers measuring them against the powers expressly granted. When the federal government claims a new power nowadays, nobody even asks just which clause of the Constitution “implies” it. In practice, the idea of implied powers means that the government does whatever it pleases.
The Constitution delegates a few specific powers to the U.S. government, reserving all other powers to the states and the people. It is these reserved powers that were meant to be well-nigh infinite; they were assumed to be too many and too various to list. Yet these powers have constantly shrunk, and we never hear of “implied” powers of the states. The trick of claiming unlisted powers by implication is one only the federal government is allowed to play.
This is a total inversion — and perversion — of the constitutional design. I do not say this merely as a matter of plain historical fact; it is the obvious and inescapable meaning of the text of the Constitution itself. As James Madison put it, the powers of the federal government, being listed, are “few and defined”; the powers remaining with the states, being unlisted, are “numerous and indefinite.”
When the right of the sovereign states to withdraw from the Union was denied, the states lost their ultimate defense against federal usurpations. A new biography of Jefferson skates over the great Kentucky resolutions, except to remark that his arguments “brought him dangerously close to secessionism.”
I had to laugh. Apparently the author has never noticed that Jefferson explicitly approved the right of secession on several occasions. It was he, after all, who wrote the most famous secessionist document in history: the Declaration of Independence, proclaiming not one but 13 “Free and Independent States.” (His grandson George Wythe Randolph would later serve as a Confederate general and secretary of war!)
Jefferson would surely have agreed that Roe v. Wade justified secession. How far we have departed from his philosophy — and from constitutional government.
Books mentioned in this essay may be found in the Imaginative Conservative Bookstore. A version of this essay originally appeared in Joe Sobran’s Washington Watch column in The Wanderer newspaper on September 18, 2003 and appears here by permission. Copyright © 2010 by Joe Sobran and the Fitzgerald Griffin Foundation. All rights reserved. The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.