Forgotten Founder, Drunken Prophet: The Life of Luther
Martin
By Bill Kauffman
(ISI Books, 166 pages, $25)
Lost in the mists of our historical mythology is the fact that
America’s Constitution was not always the “sacred text” it has come
to be considered. Indeed, among America’s Founding Fathers there
were many who had deep reservations about the Federalist conception
of government developed between the opening of the Constitutional
Convention in 1787 and the adoption of the Bill of Rights in
1791.
The principal fear of the anti-Federalists, as they were called,
was that the rights of the individual states would be usurped by
the central government. It has taken almost 220 years for their
fear to be fully realized, but the surreptitious nationalism which
they saw embedded in the Constitution’s text has largely become a
reality. Consider our all-powerful federal judiciary or the
repeated (sometimes practically indiscriminate) use of a standing
military. And of course, we recently witnessed the partial
nationalization of our banking system, not to mention the election
of a president with strong redistributionist impulses.
Scholars of a strict-constructionist frame of mind might argue
that the centralization of power that makes such things possible
has occurred in defiance of the Constitution’s carefully crafted
limits. But if the anti-Federalists were here to witness what has
taken place, they would say, “Quite the contrary, the seeds of
these excesses were right there in the document from the very
beginning.”
Wall Street Journal writer Bill Kauffman chronicles the
life and career of one of the leading anti-Federalists in
Forgotten Founder, Drunken Prophet: The Life of Luther
Martin. Perhaps the foremost advocate of “states’ rights” and
the personal freedoms they were intended to ensure, Luther Martin
was a true Founding Father — though far from a model of the
sobriety and rectitude usually ascribed to those men whose profiles
grace our stamps, coins, and paper currency. Contemporaries spoke
of him as “perpetually in his cups, coarse and gross, pedantic and
long-winded, sedulous and acidulous.”
They also saw him as “convincing” in his forceful arguments
against the proposed Constitution. In September 1789, two weeks
after leaving the Convention in Philadelphia for the last time,
Martin charged that the new Constitution was:
…neither wholly federal, nor wholly national — but a strange
hotch-potch of both — just so much federal in appearance as to
give its advocates…an opportunity of passing it as such upon the
unsuspecting multitude, before they had time and opportunity to
examine it, and yet so predominantly national as to put it in the
power of its movers, whenever the machine shall be set agoing to
strike out every part that has the appearance of being federal, and
to render it wholly and entirely a national government.
Martin was what today we would describe as a
“paleoconservative,” a lover of tradition, prescription, and local
control. Throughout the book, Kauffman draws on Martin’s political
philosophy to demonstrate how developments in American history
contradicted the “states’ rights” orthodoxy for which,
conservatives would maintain, the American Revolution was fought.
Kauffman lays this trans-mogrification of the American idea at the
feet of Alexander Hamilton and James Madison, and he doesn’t mask
his feelings about these two “arch-nationalists.” Of Hamilton he
laments, “Burr should have killed [him] sooner.” He charges that
Madison, usually lionized as the father of the Constitution,
actually desired “the total abolition and destruction of state
governments.”
Kauffman notes that Martin’s reservations were not assuaged by
the Bill of Rights, ostensibly added to the Constitution as a
safeguard against encroachments of federal government power and
intended
to reassure the anti-Federalists. The subsequent gravitation of
power to Washington, D.C., has shown Martin to have been prophetic
— especially passage of the 14th Amendment, in 1868, which became
the standard by which the federal government could measure whether
the states were in compliance with the very Bill of Rights intended
to guarantee their sovereignty.
One of Maryland’s representatives to the Constitutional
Convention, Luther Martin was described as “the bitterest of
states’ righter” at the Philadelphia gathering. He favored “only a
modest confederation — not beneath notice from God who governs,
surely, but not in need of any strenuous cornerstone — laying
either. The structure — the Articles [of Confederation (1781-88)]
— was already there.” He believed that the Constitution put in
jeopardy the local control which Alexis de Tocqueville would later
praise in his famous survey of American life, Democracy in
America (1835). No better example, Kauffman says, is the loss
of state power over their militias or national guard, which were
now subject to fight the “Empire’s wars.”
Martin was an attorney who played significant roles in two other
pivotal events of American history — both legal cases — in which
he proved himself to be a strict constructionist regarding
constitutional interpretation (the first of which he won and the
other he lost). It was alleged that former vice president Aaron
Burr had attempted to establish an empire that would detach
some
of the southern states and western territories from the United
States. As part of Burr’s defense team
in United States v. Burr (1807), Martin proved that,
according to the constitutional standard, as defined by Chief
Justice John Marshall (that the accused “truly and in fact levy war
against the United States”), Burr had not committed treason. After
the acquittal, one biographer called Martin “the spearhead of
Burr’s forensic army. The vituperative bludgeoner, the tickler of
groundling.”
In the other notable case, McCulloch v. Maryland
(1819), Martin argued that the state of Maryland
had the right to tax the national bank established by President
James Madison in 1816 (interestingly,
this case, like Burr’s, was argued before Marshall). Martin based
his “states’ rights” argument on the 10th Amendment, which reads
“the powers not delegated to the United States by this
Constitution, nor prohibited by it to the States, are reserved to
the States representatively, or to the people.” Marshall’s
prevailing decision held that the federal government “is the
government of all; its powers are delegated
by all; it represents all, and acts for all.” Therefore, creating a
national bank was within its powers, and “so was proscribing state
taxation thereof.”
Kauffman sees that ruling as a defining moment in American
constitutional history when “the defeat of the states was total,
complete, shattering. Nationalism had triumphed.” And his telling
of the story is typical of his approach throughout the book.
Kauffman is fascinated with the great “ifs” of the American saga.
What if the Articles of Confederation had survived with only the
tweaking which the anti-Federalists had hoped for? Would
Americans have been better off? Would we be freer? We might have
been spared the Civil War, perhaps even the two great world wars,
as well as Korea, Vietnam, and even Iraq. On the other hand, how
much longer would slavery have perdured in the South? Would Hitler
and Tojo have conquered Europe and Asia? Would we resemble the
republics of Central and South America, in constant political
turmoil, with some states mired in great and unrelieved
poverty?
Kauffman gives us a lot to think about, all presented in a
historically thoughtful and entertaining way. Certainly Martin’s
jeremiads against the Constitution are still relevant, as evident
in recent political developments and the anxieties surrounding the
Democrats’ policies and the ambitions of
the Obama administration — all intended to extend federal power in
a way that would signal the end
of “states’ rights” as an American constitutional principle.
No doubt, Luther Martin would find in such prospects a thorough
vindication of his fears about Federalism and, drinker that he was,
cause for “a good stiff one.”
I’ve often felt tempted to join him.
