John Taylor’s Forgotten Warning about Judges Rewriting the Structure.
“It is … the natural enemy of our home-bred form of government, and ought to awaken the resistance of all legislative and judicial departments, and the detestation of every person not enriched by this ruinous commerce.”
That warning came from John Taylor of Caroline over two centuries ago. The subject: What we now call “legislating from the bench.”
He wrote an entire book smacking down Chief Justice John Marshall, who followed Alexander Hamilton’s playbook to twist the necessary and proper clause into a blank check to justify creating a national bank.
Taylor saw exactly where this was heading. Judges rewriting the Constitution to create unlimited federal power.
CONSTRUCTION
In 1819, the Supreme Court handed down its opinion in McCulloch v Maryland. On the surface, it was about whether states could tax a bank. But John Taylor saw the con underneath. The Court had justified a national bank using powers the Constitution never delegated.
Taylor responded by publishing one of the most important and most forgotten books of the era: Construction Construed and Constitutions Vindicated.
“That gigantick institution, the Bank of the United States… has been justified by the supreme court of the United States, on principles so bold and alarming, that no man who loves the constitution can fold his arms in apathy upon the subject.”
Taylor understood that once you break the limits of the Constitution to justify one thing, you’ve broken the entire system. He saw what was coming: a thousand more unconstitutional acts.
“Those principles, so boldly uttered from the highest judicial tribunal in the United States, are calculated to give the tone to an acquiescent people, to change the whole face of our government, and to generate a thousand measures, which the framers of the constitution never anticipated.”
For Taylor, “construction” meant constitutional interpretation. But not all interpretation is created equal. He saw two completely different approaches to reading the Constitution. One approach is honest. The other is designed to destroy constitutional limits.
“There are two kinds of construction; one calculated to maintain, the other to corrupt or destroy the principles upon which governments are established.”
Here’s how you tell the difference: common sense versus academic word games.
“one visible to common sense, the other consisting of filaments so slender, as not to be seen except through some magnifying glass; one which addresses the understanding, the other which addresses prejudice or self-interest”
THE WORD GAME
To understand the construction Taylor was warning about, we need to go back to 1791. Alexander Hamilton needed to justify a national bank. The problem? No delegated power for it in the Constitution.
Hamilton’s solution? Redefine the English language. He argued that “necessary” doesn’t actually mean necessary. It means something completely different: “convenient.”
“necessary often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted, by the doing of this or that thing.”
But Thomas Jefferson rejected the notion that convenience trumps constitutional limits.
“It has been much urged that a bank will give great facility, or convenience in the collection of taxes. Suppose this were true: yet the constitution allows only the means which are ‘necessary’ not those which are merely ‘convenient’ for effecting the enumerated powers.”
Jefferson saw exactly where Hamilton’s word game would lead: unlimited power.
“If such a latitude of construction be allowed to this phrase as to give any non – enumerated power, it will go to every one, for these is no one which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase as before observed.”
THE ESCALATION
Fast forward to 1819. In McCulloch v Maryland, Chief Justice John Marshall ignored Jefferson, along with both James Madison and Edmunad Randolph who also issued similar warnings.
Instead, he adopted Hamilton’s definition of necessary as convenient. In some places, he copied Hamilton almost word for word. Here’s the moment where he redefined necessary.
“we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.”
That brings us back to John Taylor. He saw exactly what Marshall had pulled off, and the Chief Justice didn’t even try to hide it: He just swapped out the Constitution’s words for his own.
“But this interpolation of the words, ‘convenient, useful and essential,’ into the constitution, is in my view not even a plausible argument. It is merely a tautology of the phrase ‘necessary and proper,’ but excluding the restriction attached to the latter.”
Like Jefferson before him, Taylor saw the danger: once you accept this word game as constitutional, you’ve destroyed all constitutional limits.
“In short, if the argument of convenience be sufficient to establish the constitutionality of the law in the case of the banks, every power whatsoever, delegated to congress, may reward its coadjutors with exclusive privileges, and embrace within its means, monopolies of every description.”
Here’s what made Taylor’s warning so devastating. This wasn’t some new legal theory the Court invented. It was the exact same trick the British used against the American colonies.
“Previously to our revolutionary war, the colonies had been thoroughly lectured upon the subjects of sovereignty, supremacy, and a division of powers. The English parliament contended, that its sovereignty or supremacy included all means necessary or convenient, in its own opinion, to effect its ends.”
THE AMERICAN SYSTEM
The founders rejected this. In the American constitutions, no government is sovereign, and, as Taylor emphasized, the word isn’t even used.
“Neither the declaration of independence, nor the federal constitution, nor the constitution of any single state, uses this equivocal and illimitable word.”
They didn’t just avoid the term. They rejected the entire concept of government sovereignty – unlimited power – and instead built a system of limited, delegated powers.
“In none, is there the least intimation of a sovereign power; and in all, conventional powers are divided, limited and restrained.”
Taylor understood exactly why the framers were careful to avoid using the word. You cannot give servants final authority over their masters. Otherwise, they’re not servants at all.
“The language of all these sacred, civil authorities, is carefully chastened of a word, at discord with their purpose of imposing restrictions upon governments, by the natural right of mankind to establish societies for themselves.”
To Taylor, government claiming sovereignty over the people of the states was just as absurd as claiming sovereignty over foreign nations.
“It could not be correctly used as a vehicle of power, either external or internal. The idea of investing servants with sovereignty, and that of investing ourselves with a sovereignty over other nations, were equally preposterous.”
MARSHALL’S MOVE
What did John Marshall do with this foundation? He ignored it completely. In McCulloch:
“The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another?”
Marshall then smuggled in the word the framers had rejected.
“In America, the powers of sovereignty are divided between the Government of the Union and those of the States. They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.”
Taylor saw the trap: if the federal government has even a portion of sovereignty, then the people of the several states don’t have it.
“By contending that the federal government, created in virtue of their retained and inherent sovereignty, has acquired any species of sovereignty, it as clearly asserts, that they do lose it. By asserting, that our political spheres are limited by their constitutional spheres of action, it admits, that they are not invested with sovereignty. By investing them with the right of creating corporations, as resulting from the power appertaining to sovereignty, it declares that they are.”
Taylor caught Marshall in a basic logical error. You can’t divide final authority, there can only be one.
“Sovereignty implies superiority and subordination.”
Because of that, the term the framers explicitly excluded from the Constitution can’t be shoehorned into its interpretation.
“The word being rejected by our constitutions, cannot be correctly adopted for their construction; because, if this unanimous rejection arose from its unfitness for their design of defining and limiting powers, its interpolation by construction for the purpose of extending these same powers, would be an evident inconsistency.”
The framers weren’t just being academic. They understood this one word – sovereignty – was poison to the Constitution.
“Our constitutions, therefore, wisely rejected this indefinite word as a traitor of civil rights, and endeavored to kill it dead by specifications and restrictions of power.”
THE WEAPON
As Taylor explained, they learned this firsthand. Even good guys will become tyrants when you give them sovereign, or unlimited, power.
“By our constitutions, we rejected the errors upon which our forefathers had been wrecked, and withheld from our governments the keys of temporal and eternal rights, by usurping which, their patriots had been converted into tyrants; and invested them only with powers to restrain internal wrongs, and to resist foreign hostility; without designing to establish a sovereign power of robbing one citizen to enrich another.”
That’s the whole point. Governments love broad and vague terms because they can use them as weapons to expand power.
“governments love obscurity better than specification. The unknown powers of sovereignty and supremacy may be relished, because they tickle the mind with hopes and fears.”
He understood the stakes. The word game isn’t a mistake. It’s a weapon. And if it works, the entire constitutional system is destroyed:
“No sphere has a power of doing what is good or bad, generally, but constitutionally only; and that if these principles can be overturned by an ingenious management of words, all our checks, balances, limitations and divisions of power, are good for nothing.”
Here’s exactly how it happens. Taylor saw the step-by-step process, and it starts with the same trick Hamilton and Marshall used.
“Usurpation begins with weaving a shroud for free principles by the woof and warp of little conveniences and pretended necessities, and ends by inflicting the slavish quietism of a perfect subordination.”
BECOMING THE BRITISH
Taylor front-loaded the warning. In his Preface – before a single page of argument – he told readers exactly where this ends. Once you let “convenience” become the standard for expanding federal power, there’s no stopping it.
“Thus, representative power may be made despotick; a co-ordinate sphere may be made supreme; convenience, like the waves produced by a pebble thrown on smooth water, may be made to undulate indefinitely.”
As federal power continues to expand, its appetite for more turns to the states, and the courts erase the line in the sand between federal and state power, dangerously similar to the British system they once toiled under.
“a subordinate judicial power may start up into a dictator to the state governments; divisions and limitations of power may be confounded and abolished. And English follies are converted from objects of our abhorrence, into models for our imitation.”
The end result?
Taylor predicted this would convert a free republic – a union of states – into the consolidated system of tyranny the founders fought a long, bloody war to secede from.
“Under a reconciliation between republican and despotick principles, effected by the new idea of “sovereign servants,” our legislatures are converted into British parliaments, daily new-modelling the substance of our government, by bodies politick, exclusive privileges, pensions, bounties, and judicial acts, comprising an arbitrary power of dispensing wealth or poverty to individuals and combinations, at their pleasure.”
Latest posts by Michael Boldin (see all)