4.0 out of 5 stars
Valuable, but its thesis misses the mark., October 10, 2011
This review is from: The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861 (Hardcover)
~The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861~ is written by an attorney in Illinois. It endeavors to examine the advent of federal power, and the title itself is an allusion to the once ascendant hermeneutic of constitutional heuristic that generally characterized the first seventy years of the American Republic. The federal government's powers were understood as being generally limited to those expressed in Article I, Section 8 of the Constitution, the so called enumerated powers. In fact, to the credit of his factual veracity, his account of the convention proceedings to frame and ratify the Constitution are essentially correct. He makes it clear that the bill of goods to secure ratification entailed the Federalists conceding strict construction as the interpretative keystone of the Constitution. Hence, as Kevin Gutzman noted, "In state after state, Federalists said that the new government would have only the powers it was 'expressly delegated' (as Governor Edmund Randolph, ratification's chief proponent in the Richmond Ratification Convention of 1788, put it)."
Kevin Gutzman adequately summarized the book in his review in First Principles: "Zavodnyik's thesis is that the Union failed in 1861 because of the failure of the constitutional system. While Federalists of the ratification campaign had promised limited government and forecast that the Constitution would prevent the rise of faction, he says, a Southern minority faction came to dominate the government." On giving approbation to this point, however, the inherent weakness of Zavodnyik is his failure to account for the interlude with the minority Federalists under the administrations of Jefferson and Madison, the Hartford Convention, and what we may dub an emergent Northern States' Rights tradition. States' Rights was common currency all over the union. John Quincy Adams, a strong nationalist, could laud the notion of secession at the Jubilee in honor of the Constitution, maintaining that the right existed should New England ever find its significant interests threatened by the Union. Secession was threatened by New England with the annexation of Texas no less than the War of 1812.
Zavodynik quotes John Marshall as Gospel, and overlooks the brilliant counter-perspective of Virginia's highest justice Spencer Roane, who authored the Hampden pamphlets in response to Marshall Court's perceived usurpation of power and jurisdiction. He rightly shows that judicial cover through jurisprudential construction was the chief means of energizing federal power. Sometimes it anticipated the need for federal power seeking new avenues, and other times it sought to vindicate what the strict constructionists perceived as usurpation. What I find so lamentable too about Zavodynik's reasoning is that he tends to concede the nationalists were begging a dialect of construction (i.e., interpretation) that did NOT initially come with the Constitution as ratified. Yet he always in Hegelian fashion takes "progress" as necessitating the steady march of federal powers. Accordingly, the ends justify the means, and the real meaning of the age of strict construction is lost. Its just regarded as an obstructionist technique to impede coalescing federal power. And it's largely portrayed as a southern sectionalist phenomenon (with a few exceptions.
Here Zavodynik echoes the familiar historiography of William Freehling in Prelude to Civil War and Richard Ellis in the Union at Risk. States' Rights is ultimately implicated as a sectional device by the southern sectionalists for their interests. What is lacking in this perspective is the universality of the doctrine, for as Herman Belz observed, States' Rights is the natural recourse of the party that is not holding the Congressional majority, but nonetheless is entrenched in state legislatures in various enclaves.
What little attention the compact view receives is ultimately critical on the part of the author. The Virginia and Kentucky Resolutions are scarcely mentioned, and treated as opportunism, when they're really the key to unlocking the understanding of the American polity. This view expressed by Jefferson and Madison manifest in the Kentucky and Virginia Resolutions drew legitimately from the contractual understanding proffered by George Nicholas at the Virginia Convention of 1788 in Richmond (See Kevin Gutzman's _Virginia's American Revolution). Any hint of interposition and nullification is cast in pejorative reflection, as the author dubs it "unfortunate" and the implication is that they "sought to exploit the discord." Yet Publis, Hamilton specifically, hinted at its propriety a decade earlier in Federalist No. 28: "It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The [state] legislatures will have better means of information." The complete security lies in organizing a multi-state campaign of resistance, and interposition and nullification which is the implication. States' Rights were appropriated in defense of abolition, such as the Joshua Glover case in Wisconsin. As well, to his credit, the author mentions New York State appealing to the Virginia Resolutions to vindicate their dismissal of the Taney Court's imprudent Dred Scott decision.
In spite of my ample disagreements with the historiography of Zavodnyik, I am hesitant to rate the book poorly. I tend to be jealous for liberty as the republicans of old, and this inculcates an aversion to those who perceptively sow the leaven of misunderstanding a propos original intent. Today, it is largely an exercise in forensics to surmise original intent from the documentary history of the convention to frame the Constitution and the subsequent state ratification conventions. It is a foregone conclusion that the federal government is no longer confined to the enumerated powers regardless of the parlor games that the Supreme Court does to validate de facto government, which is far from de jure government under the original Constitution. The author plainly admits the U.S. government "has assumed powers that were not granted to it by either the Constitutional Convention or subsequent amendments" but he dismissed the predicament, merely rationalizing that it was "framed by men who did not foresee the scope, technologies, and intricacies and interdependence of today's economy."
The morality play of the radical disconnect between de facto government and de jure government is lost to Zavodynik, as is the achievement of the Founding Fathers. We live in an age where the corpulent public sector in the United States collectively consumes 43% of the GNP as of 2009, and annual federal budget deficits are over $1.5 trillion annually. Unfunded federal liabilities are over $110 trillion in the long-term. The federal government is insolvent and becoming an inflationist termite state. Why? Is it reasonable to suggest its radical departure from the Constitution of original intent played no small part in the present state of affairs? Whether the Constitution may be defective from the beginning is beside the point. But the radical economic dislocations, the vicious cycles of boom and bust, owe essentially to the aggrandizement of corpulent federal government that finds itself no longer chained by the constraints of the Constitution. It is ironic too that the very problems the federal government causes it soon proposes to correct, and Congress much like the Federal Reserve runs strangely like a man in an automobile bearing down on the accelerator and the brakes at the same time.
Cambridge historian John Acton spoke of the necessity of moral judgment in history. It should be evident that these later-day sages for energetic government who dismiss the concern for strict construction, limited government and states' rights as an anachronistic relic of the horse and buggy age have failed to comprehend the predicament it poses for Americans, not simply in 1861 but 2011. Federal power grew out of necessity one may grant. To the pragmatists, the ends justify the means. To those versed in classical republican theory, the parallels between America and Rome looms large.
When it comes to constitutional history of this period, I much prefer other jurists and historians, such as M.E. Bradford, Kevin Gutzman, and Forrest McDonald.
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