Syndicated columnist George Will (April 24 Des. News) said that Iraq now needs four people to achieve post-Saddam success: George Washington, James Madison, Alexander Hamilton and John Marshall. Men of this stripe, he believes, would provide strong central leadership and interpretation of the law that would prevent “centrifugal tendencies” from fracturing the nation.
This is an interesting set of personalities to group together for the purpose of nation building. Hamilton and Marshall were statists. Hamilton particularly intended to subordinate the states to a central government. As a representative of the State of New York to the Constitutional Convention of 1787 Hamilton advocated a federal governmental structure in which “The supreme legislative power of the United States of America to be vested in two distinct bodies of men, the one to be called the assembly, and the other the senate, (excluding the word Congress), with power to pass all laws whatsoever, subject to the negative (of the supreme executive) hereafter mentioned. The senate to consist of persons elected to serve during good behavior. The supreme executive authority of the United States to be vested in a governor, to be elected to serve during good behavior. To have a negative upon all laws about to be passed, and the execution of all laws passed. … All laws of the particular states, contrary to the constitution or laws of the United States, to be utterly void. And the better to prevent such laws being passed, the governor or president of each state shall be appointed by the general government, and shall have a negative upon the laws about to be passed in the state of which he is governor or president.”
Hamilton’s view was soundly defeated in the convention. The people accepted a constitution that preserved state sovereignty freedom and independence while forming a union only for certain expressly enumerated purposes. But Hamilton found an ally in Marshall as Chief Justice of the Supreme Court. Despite the clear intent of the people to limit the power of central government, Marshall found that Congress could pass any law that it found useful to its objectives whether or not the law was necessary and proper under the Constitution.
Fast forward more than two hundred years, and we find a central government vastly more powerful and pervasive than the one the people ratified in 1788, and a constitutional text that correlates with modern governmental practice only at the margins. The future existence of states as sovereign and independent republics is doubtful. The Supreme Court has opined that Congress needs only to “make its intention… ‘unmistakably clear in the language of the statute” if it should choose to usurp the reserved powers of the states. This is referred to this as the “plain statement rule.”
Protection from unwarranted search and seizure provides another illustration of the fruits of collusion between statists in the legislative and judicial branches. The fourth of the Bill of Rights says that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall be issued, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Upon public lands the Fourth of the Bill of Rights does not apply however. Be aware that when you are in the forest or on park, monuments or BLM lands, federal officers may “search without warrant or process any person, place, or conveyance according to any Federal law or rule of law; and seize without warrant or process any evidentiary item as provided by Federal law.” Within these lands, we are subject to the federal government’s “special maritime and territorial jurisdiction.”
Outside of the public lands, we are faced with the abridgements of personal liberty now codified in the so-called “Patriot Act.”
Neither Hamilton nor Marshall were ever elected to national office, but their statist influence has shaped and is shaping this nation in a way that was rejected by the people when they ratified the Constitution. If we are to accept Will’s view that Iraq would be better served by centralized power brokers who conspire to hold the people’s fundamental law and liberties within their own discretion then we must accept also that Saddam wasn’t all that bad – a little naughty perhaps, but effective.
If Iraq needs the talents of the framers of original American constitutional federalism, it needs the talents of the likes of Jefferson, John and Samuel Adams and Madison (who began the Constitutional Convention as a statists and ended it as a federalist), not Hamilton and Marshall. These men drew their ideas of personal liberty and self determination, with union only for those purposes that cannot be accomplished effectively otherwise, from the wisdom of the ages.
It is the ideas of these men, not the discredited machinations of despots and petty tyrants, that will serve the best interests of the people of Iraq.
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