Constitution Enforcement: The Solution from the Revolution
“By the principles of the American revolution, arbitrary power may, and ought to, be resisted.”
Luther Martin and the rest of the founders not only TOLD us how to deal with unconstitutional power. Throughout the American Revolution, they SHOWED us what actually works.
Enforcing the Constitution can be broken down into six almost completely-ignored steps from the Revolution. Backed, of course, by the ultimate check on power: the duty of self-preservation.
Before getting to those steps, we need to ground this information in some difficult truth. Most people want a magic button that reads, “press Here to enforce the Constitution.” Or some magic words on paper that will get the government to stop doing what the government was never authorized to do in the first place.
But that is pure fantasy.
Thomas Jefferson gave us the reality check. Going from the largest government in history to a real land of the free is not going to be quick or easy.
“We are not to expect to be translated from despotism to liberty, in a feather-bed.”
Step 1 – Be Armed and Trained
As George Washington put it in his first “state of the union,” a highly armed and trained general population is a prerequisite for freedom.
“A free people ought not only to be armed, but disciplined.”
It should be obvious, but this was a common view throughout the Revolution, and the War for Independence probably would have failed without it.
In his 1773 sermon to the Ancient and Honorable Artillery Company in Boston, Simeon Howard summed it up best.
“A people who would stand fast in their liberty, should furnish themselves with weapons proper for their defence, and learn the use of them.”
That’s the same message we got during the ratification debates from the Anti-Federalist writer, Federal Farmer. He knew that to be free, the people needed to be armed and trained EARLY.
“To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”
The founders and old revolutionaries, as Josiah Quincy explained, considered real national defense in a free republic to be built on the people themselves, ready to protect and defend their own Constitution and liberty against all enemies, foreign or domestic.
“No free government was ever founded or ever preserved it’s liberty without uniting the characters of citizen and soldier in those destined for defence of the state.”
Step 2 – Zero Tolerance for Arbitrary Power
James Otis Jr. defined arbitrary power this way in 1762:
“arbitrary; which in plain English means no more than to do as one pleases.”
“Light Horse” Harry Lee applied that same principle to the Constitution.
“When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed. Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional.”
So any time they go beyond the limits of the Constitution, it’s arbitrary: it’s LAWLESS.
But even worse? As Rep. James Jackson argued in the First Congress in 1789, every violation of the constitution sets a precedent for more of the same.
“We must confine ourselves to the powers described in the Constitution; and the moment we pass it, we take an arbitrary stride toward a despotic government.”
For Thomas Jefferson, even the smallest step beyond the limits of the Constitution opens the floodgates for unlimited power.
“To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”
It’s really hard to overstate how much the old revolutionaries despised arbitrary power.As James Otis Jr. put it, it isn’t just dangerous.
It’s vile. Corrupt. The worst of the worst.
“The curse and scandal of human nature”
In his 1775 Massacre Day oration, the great Revolutionary War hero Joseph Warren explained this through the colonists’ own history and tradition. Their forefathers risked their lives and crossed the ocean to find freedom – to escape arbitrary power.
“Our fathers, having nobly resolved never to wear the yoke of despotism, and seeing the European world, at that time, thro’ indolence and cowardice, falling a prey to tyranny; bravely threw themselves upon the bosom of the ocean; determined to find a place in which they might enjoy their freedom, or perish in the glorious attempt”
Why? It gets down to a long-lost American principle: liberty or death.
“They found the land swarming with savages, who threatned death with every kind of tor|ture. But savages, and death with torture, were far less ter|rible than slavery:—Nothing was so much the object of their abhorence as a tyrant’s power:—They knew that it was more safe to dwell with man in his most unpolished state than in a country where arbitrary power prevails..”
Step 3 – Refuse to Comply
How do you treat arbitrary power? Well, you definitely don’t comply with it.
We get a pretty strong hint at that from Alexander Hamilton, discussing the supremacy clause of the Constitution in Federalist No. 33.
“It will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
And Hamilton himself told us what this means at the height of the American Revolution:. No compliance with arbitrary power.
“All we aim at, is to convince your high and mighty masters, the ministry, that we are not such asses as to let them ride us as they please…
…tho’ we cannot much applaud your wisdom, yet we are compelled to admire your valour, which leads you to hope you may be able to swear, threaten, bully and frighten all America into a compliance with your sinister designs.”
In short, government doesn’t get to do whatever it wants. And when it tries, you aren’t required to comply.
“To grasp at a more extensive power than they are willing to entrust, is to violate that law of nature, which gives every man a right to his personal liberty; and can, therefore, confer no obligation to obedience.”
The American Revolution was built on this view. Free people do not comply with unconstitutional “laws” – and then just hope they can convince the government to stop doing what the government was never authorized to do in the first place.
John Hancock was even clearer than Hamilton: Never comply. Ever.
“The people of this country will never be made slaves of by a submission to the damned act.”
As students of history, they all knew, as James Otis Jr. put it, that compliance guarantees tyranny.
“So long as people will submit to arbitrary measures, so long will they find masters”
This mentality wasn’t fringe. It was pervasive, part of the American spirit. And people like John Steele carried it forward to the ratification debates in 1788.
“If the Congress make laws inconsistent with the Constitution, independent judges will not uphold them, nor will the people obey them. A universal resistance will ensue.”
Step 4 – Petition and Disobey
This next step might actually be step 3.5, because they’re closely connected.
Simultaneously with a refusal to comply, issue resolutions or petitions to ask or demand that the government withdraw. While unlikely, tt just might give them an opportunity to do so.
This was such an integral part of their strategy throughout the Revolution that they included it in the First Amendment to the Bill of Rights.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
But petitioning doesn’t mean compliance. And there’s no better proof of this than the strategy used against the Stamp Act in 1765.
In October that year, John Dickinson was the primary author of the Resolutions of the Stamp Act Congress, widely considered the first coordinated, multi-colony action of the American Revolution.
It was very flattering in tone, but it also called the Stamp Act unconstitutional.
“That the only representatives of the people of these colonies, are persons chosen therein, by themselves; and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.”
That same fall, Dickinson also wrote a broadside calling on the people to refuse to comply.
“If you comply with the Act by using Stamped Papers, you fix, you rivet perpetual Chains upon your unhappy Country.”
He knew that every time you let them get away with enforcing one unconstitutional act, you give them a precedent for more and more of the same in the future.
“You unnecessarily, voluntarily establish the detestable Precedent, which those who have forged your Fetters ardently wish for, to varnish the future Exercise of this new claimed Authority.”
So, on the one hand, Dickinson wrote the most famous resolution politely asking for repeal. At the same time, he put compliance in terms everyone understood.
“If you quietly bend your Necks to that Yoke, you prove yourselves ready to receive any Bondage to which your Lords and Masters shall please to subject you.”
In another Revolutionary-era example of this two-pronged strategy, the 1774 Declaration and Resolves of the First Continental Congress first described a long laundry list of British acts as unconstitutional:
“Impolitick, unjust, and cruel, as well as unconstitutional, and most dangerous and destructive of American rights.”
It was also a petition calling for repeal.
“Repeal of them is essentially necessary in order to restore harmony between Great Britain and the American Colonies.”
But it hammered the essential strategy home: never, ever submit to arbitrary power.
“To these grievous Acts and measures Americans cannot submit.”
Thomas Jefferson used this same strategy in drafting the Kentucky Resolutions of 1798. He repeatedly referred to most of the Alien and Sedition Acts as “altogether void and of no force.”
“Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
This was a non-binding protest, a resolution. But in his original draft, Jefferson also called for concrete action by the people of the several states.
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”
Step 5 – Refuse to Enforce
That brings us to step 5: with a refusal to comply comes a refusal to enforce.
In Federalist No. 46, James Madison’s strategy for stopping federal overreach emphasized this as essential:
“A refusal to co-operate with the officers of the Union.”
About seven weeks earlier, Roger Sherman tied three of these key principles together. Arbitrary power is not law at all. States shouldn’t help the feds enforce it. And it should be obvious, but enforcement is only needed when the people refuse to comply.
“All acts of the Congress not warranted by the constitution would be void. Nor could they be enforced contrary to the sense of a majority of the States.”
This same kind of local refusal to enforce was often used throughout the Revolution. One famous example comes from Frederick County, Maryland, where 12 county court judges issued a formal unanimous ruling that the Stamp Act was to be ignored, effectively nullifying it in practice in the county.
As documented by North Carolina History, local law enforcement officials there refused to enforce the Stamp act – or even stop the crowds rioting against the act.
“Governor Tryon discovered that he could not rely on magistrates and other law enforcement officials to suppress the disorder since so many of them had joined the protesters.”
Step 6 – Resist Further
When government persists, as it often does, sometimes you have to ramp up how you resist.
That’s exactly what Federalist and future Supreme Court Justice James Iredell said in the North Carolina Ratifying Convention.
“The only resource against usurpation, is the inherent right of the people to prevent its exercise. … The people will resist if the government usurp powers not delegated to it.”
How that resistance happens really depends on the situation. And Thomas Jefferson, the day after his Kentucky Resolutions of 1798 were signed, stressed smart strategy in a letter to James Madison.
“I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.”
During the Revolution, this played out in many ways – such as these three important examples
With the Continental Association in 1774, they used boycotts to push an economic shutdown against Britain. Kick the enemy where it hurts: in the wallet.
In the Liberty Affair of 1768, after British customs officials seized John Hancock’s ship, thousands of people descended on the tax collectors – and even the British Navy – and literally ran them to the docks – and out of town.
The Suffolk Resolves of 1774, written by Joseph Warren, said “no obedience is due” to the coercive acts, judges should be disregarded, sheriffs should refuse to enforce, and taxes collected should be withheld from distribution to the British authorities.
And lastly, that the people should prepare themselves to resist by force of arms.
“That the inhabitants of those towns and districts, who are qualified, do use their utmost diligence to acquaint themselves with the art of war as soon as possible, and do, for that purpose, appear under arms at least once every week.”
THE RIGHTFUL REMEDY
Samuel Adams grounded all these principles in natural rights.
“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.”
That brings us full circle to Luther Martin. Recognizing the same principles that applied throughout the Revolution: he said unconstitutional power should be resisted in the most effective way possible.
But resistance might need to rise to a level that fits this duty of self-preservation.
“By the principles of the American revolution, arbitrary power may and ought to be resisted, even by arms if necessary.”
In his draft of the Kentucky Resolutions of 1798, Thomas Jefferson boiled it all down to two primary options.
“Vote the bums out” is only to be used for situations where you want to change politicians because you don’t like their policies – but they’re still within the bounds of the Constitution.
“In cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy.”
For everything else – “where powers are assumed which have not been delegated” – Jefferson gave us the solution from the Revolution:
“A nullification of the act is the rightful remedy.”
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