Finding a lost founder: the words of a little-known founder, who had the influence of Jefferson and Madison, could have been written today to warn about the usurpation of power by judges.
John Taylor (usually called John Taylor of Caroline) is arguably the most forgotten man among the pantheon of America's Founding generation, yet by his contemporaries he was considered a man without equal when it came to vigorously defending the key constitutional principles of federalism, state sovereignty, and limited government. During his 71-year life, Taylor published six books on the topic of the philosophy of government and the U.S. Constitution.
In the introduction to one of these --New Views of the Constitution of the United States--Taylor diagnoses the American body politic with an infection, a political plague so prevalent and pervasive that he predicts it could destroy the union if left untreated:
That many eminent and respectable men have ever preferred, and ever will prefer, a consolidated national government to our federal system; that the constitution, under the influence of this predilection, has been erroneously construed; that these constructions are rapidly advancing towards their end, whether it shall be consolidation or disunion; that they will become a source of excessive geographical discord; and that the happiness and prosperity of the United States will be greater under a federal than a national government, in any form, are the opinions which have suggested the following treatise.
John Taylor of Caroline County, Virginia, was born in 1753. Orphaned as a young boy, he was adopted by his maternal uncle Edmund Pendleton. One of Virginia's most distinguished citizens, Pendleton served from the Revolution to his death in 1803 as head of the state's highest court. Taylor studied at William and Mary and then read law in his uncle's office.
Later, he served as an officer in the Continental Army and the Virginia Militia during the War for Independence. After the war, he returned to the practice of law and married Lucy Penn, daughter of John Penn of North Carolina, a signer of the Declaration of Independence.
Taylor, worried about the effect his successful law practice was having on his personal virtue, returned to the farm, spending the rest of his life as a planter at Hazelwood, his home on the Rappahannock River.
From his earliest years, John Taylor was trained as a bloodhound of sorts, learning from his study of ancient history to recognize the scent of a tyrant. He learned most of these lessons while a student of one of Virginia's ablest and most sought after tutors: Donald Robertson.
Robertson was 35 years old and had just arrived in Virginia from his native Scotland, where he graduated from the University of Edinburgh.
James Madison--the future president and "Father of the Constitution"--along with about 30 or 40 other pupils each year studied at Robertson's school. Lessons taught included English grammar, composition, literature, and the history of England, as well as the classical histories of Greece and Rome.
Besides John Taylor and James Madison, there were many other notable men who studied at Donald Robertson's school, including John Penn; John Tyler, governor of Virginia and father of the 10th president; and George Rogers Clark, a hero in the War for Independence.
For an idea of how influential Robertson was on his students, one need only read James Madison's statement, "All that I have been in life I owe largely to that man."
Perhaps from his study of the autocrats of classical history, Taylor developed a distaste for any and all attempts by those in power to usurp any authority beyond that given to them by the people being governed.
He also learned that only a virtuous people were capable of self-government and that without a moral and religious foundation, societies ran speedily into the waiting arms of despots. "Great power often corrupts virtue; it invariably renders vice more malignant.... In proportion as the powers of government increase, both its own character and that of the people becomes worse," Taylor wrote in 1814.
His powerful pen and his ability to wield it so deftly in defense of liberty has earned John Taylor an indelible entry in the record of heroes of republicanism. His grasp of the core principles of self-government and civil liberty was second to none, and his persuasive prose was admired by many of the men of his era and today.
Sadly, however, Taylor is slighted by many contemporary constitutionalists, suffering from a near anonymity of a life lived in the shadow of Thomas Jefferson and James Madison. The three Virginians were friends and like-minded on almost every important political point.
In fact, the three were so simpatico politically and philosophically that when it came to the critical constitutional role of states in the delicate balance of federalism, it was Taylor who introduced Madison's Virginia Resolution to the legislature of the Old Dominion in 1798.
Taylor did not, however, play merely a supporting role in the effort to reinforce constitutional limits on power. Four years prior to introducing the Virginia Resolution on behalf of its author, Taylor wrote his own views of the metes and bounds of federalism in "An Enquiry Into the Principles and Tendency of Certain Public Measures."
In that pamphlet, Taylor insists that "the state legislatures have at least as good a right to judge of every infraction of the constitution as Congress itself," since the states, as the creators of the federal government, maintain the privilege of resisting the exercise by Congress of any powers not granted to it in the Constitution. This assertion, of course, was the foundation upon which Jefferson and Madison built the Kentucky and Virginia Resolutions of 1798. This approach to keeping the federal beast inside its constitutional cage is called nullification, and Taylor, Jefferson, and Madison understood that without the states acting as a barricade between a powerful central government and the people, liberty would be lost.
One last point about the influence of John Taylor's 1794 pamphlet on Thomas Jefferson: In his book Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, constitutional attorney William Watkins, Jr. suggests that in the Kentucky Resolutions, Jefferson was "following the lead of Taylor" in "recognizing a nullifying power in the state legislatures."
Although Jefferson, and to some degree James Madison, gets all the attention when it comes to credit for cogently explaining the core of nullification, John Taylor of Caroline was publicly proclaiming this principle in print years before Jefferson and Madison collaborated on the so-called Principles of '98.
States Restraining the Court
Beyond recognizing state legislatures as the best hope of restraining federal despotism, one of the central tenets of John Taylor's conception of federalism was that no branch of the federal government could serve as the arbiter of its own power. "A jurisdiction limited by its own will, is an unlimited jurisdiction," Taylor wrote in his book Construction Construed and Constitutions Vindicated, published in 1820.
In that book, which Thomas Jefferson said was "the most logical retraction of our governments to the original and true principles of the Constitution creating them, which has appeared since the adoption of the instrument," Taylor described the effect of accepting Supreme Court decisions as the final word on the constitutionality of federal acts and policies.
"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," he declares.
Then, in words that could have been written yesterday, Taylor laments the loss of liberty and the breaking of the fetters of federalism that arrived hand in hand with the states' acquiescence to the central government's consolidation of all powers and privileges of authority:
In truth, we have arrived at a crisis, when the first principles of the government and some of the dearest rights of the states are threatened with being utterly ground into dust and ashes. When we look to the original form of the government, we are struck with its novelty and beauty. It presents to us one of the grandest experiments that ever was made in political science. We see in it an attempt to ascertain, how far power could be so distributed between two governments, as to prevent an excessive concentration and consequent abuse of it in one set of hands; at the same time, that so much power was conveyed to each, as to enable them to accomplish the objects to which each of them was best adapted. The federal government was to watch over our foreign relations; that of the states, was particularly to take care of our internal concerns. The great secret was, to have these functions so wisely regulated, as to prevent the general government from rushing into consolidation; and the states, into a dissolution of the union. The first extreme would infallibly conduct us to great oppression, and probably to monarchy: the last would subject us to insults and injuries from abroad, to contentions and bloodshed at home. To avoid these extremes, we should never have lost sight of the true spirit of the federal constitution. To interpret it wisely, we should have rigidly adhered to the principle, laid down by George Clinton, when he, from the chair of the senate of the United States, gave the casting voice against the renewal of the first bank charter: "In the course of a long life, I have found that government is not to be strengthened by the assumption of doubtful powers, but a wise and energetick [sic] execution of those which are incontestable', the former never fails to produce suspicion and distrust, whilst the latter inspires respect and confidence. If, however, on fair experience, the powers vested in the government shall be found incompetent to the attainment of the objects for which it was instituted, the constitution happily furnishes the means for remedying the evil by amendment." This maxim deserves to be written in letters of gold upon the wall of the capitol in Washington. But, we have been almost deaf to the voice of wisdom. We have nearly forgotten the principles of our fathers. In repeated instances, we have suffered the constitution to be trodden under foot. We have been lately rushing rapidly towards the gulph [sic] of consolidation. [Emphasis in original.]
Reading those words, one begins to realize John Taylor of Caroline's depth of understanding of key constitutional principles and his eminently persuasive way of explaining those concepts in language that all friends of liberty can comprehend and appreciate.
Perhaps more than anyone of his generation, Jefferson and Madison not excepted, John Taylor of Caroline foresaw the gradual destruction of the walls separating the people from an autocratic government. Presciently, moreover, he pointed to the Supreme Court as the place where liberty, popular sovereignty, and the sovereignty of states would meet their untimely demise.
"The judicial power has been made independent of the sovereignty," he wrote in 1807 in a letter to Wilson Cary Nicholas.
In that letter, Taylor advocated for an amendment to the Constitution that would make judges "removable by the joint vote of the two houses [of Congress] with the assent of the president." Today, there are several supporters of a rebalancing of the scales of sovereignty that are advocating for a similar proposal.
It was state lawmakers upon whom John Taylor relied to restrain the avarice of the federal government, however. Ultimately, as a republican in the old Whig mold of Algernon Sidney, Taylor believed the people retained all power not explicitly granted by them to surrogates, whether they be in the state assemblies or in Washington, D.C.
In his book An Inquiry Into the Principles and Policy of the Government of the United States, Taylor exalts the God-given power of man to govern himself, and he reminds readers that the consent of the governed is the sine qua non of legitimate power in a republic. And even after man has granted to government some of his natural authority, that power should be divided among various bodies, lest it be consolidated into the hands of one or several tyrants:
It is our policy to consider the people as retaining a vast share of political power; and as only investing their government with so much as they deem necessary for their own benefits.... We do not balance power against power. It is our policy to reduce it by division, in order to preserve the political power of the people, by forbearing to incite the ambition and avarice of individuals. To preserve our unexampled division of power between the nation and the government, a multitude of other divisions became necessary, and these were intended to be made, not for the purpose of balance of powers between departments, but by preventing such an accumulation to awaken ambition, to defend the sovereignty of the people against all.
In publishing this position, John Taylor became a leader of the so-called anti-Federalists, those who opposed the ratification of the Constitution of 1787.
Taylor believed that the convention held in Philadelphia in 1787 exceeded its authority. He reminded his fellow Americans that Congress and the state governments that sent delegates to that meeting expressly limited its scope of power to the amending of the Articles of Confederation. In fact, most of the commissions granted to the delegates explicitly forbade them to consider a new constitution.
After the Constitution was ratified, however, John Taylor changed his tack, arguing not that the Constitution was illegitimate, but insisting that the limits of power laid out in that document be strictly enforced.
Taylor wrote that if the narrow and particularly defined powers of the central government created in the Constitution are not kept constantly within the boundaries drawn around them, then the strength of that document would atrophy, having broken "every ligament for tying down power."
In 1822, John Taylor of Caroline wrote Tyranny Unmasked, his masterful dismantling of the designs and deceits of those in power who were seeking to misapply and misinterpret the Constitution in a way that would justify the construction of a British-style consolidated central government.
In this now almost completely forgotten defense of state sovereignty, limited federal power, and individual liberty, Taylor calls out the consolidators, revealing the process by which they "weave" their version of constitutional construction, a process that is still being used by ambitious would-be presidents, congressmen, and jurists. "It is, in fact by too much proficiency in the art of political spinning and weaving, and not by too little patronage of capitalists, that our prosperity has been lost. By spinning legislative into judicial powers; by spinning federal into local powers," he declares.
Then, in a stinging rebuke of runaway federal budgets and social engineering masquerading as charity, John Taylor of Caroline once again sounds eerily contemporary:
We can spin out debates about economy, so as to make economy itself an instrument of waste. We can weave legislative and judicial powers into one web, to exhaust time, and increase the income of the workmen. We can weave law and judgment into more durable stuff than constitutions. Our parties have not been deficient in shooting the political shuttle for weaving republican threads, into a web compounded of extravagance, patronage, heavy taxation, exclusive privileges and consolidation. They are weaving a co-ordinate, into a sovereign and absolute power.... It offers more money to avarice, and even urges the enormous expense already endured, as an argument for aggravating the distresses it has already produced. This wise nation must either be very foolish in compelling the government to force them to be happy by the sword, or this patriotick [sic] government must be very tyrannical, in saddling the people with a heavy unnecessary expense.
As if all the foregoing wasn't enough evidence of the worth of familiarizing friends of liberty with the name and pen of John Taylor of Caroline, perhaps this last excerpt from Tyranny Unmasked will convince constitutionalists to look up and learn from this remarkable Founding Father and defender of republicanism and state sovereignty.
In describing the crony capitalism and self-serving trade deals of the day, John Taylor sounds like he has read up on the Trans-Pacific Partnership (TTP), the Transatlantic Trade and Investment Partnership (TTIP), and all the other surrenders of sovereignty dressed in frocks of free trade:
But rich tributes from the four quarters of the globe, cannot prevent a frightful degree of pauperism, nor reimburse the people for the distresses inflicted upon them by commercial restrictions. The reason is, that these are so contrived as to destroy all the good which commerce could have produced for the mass of the people, by making it merely an instrument for taxing them, and for intercepting all the wealth and tribute it brings in, to convey both into the pockets of the government, and of the exclusively privileged allies it has created.
Finally, in language that echoes the Philippics of Demosthenes, Taylor reminded the people of the United States that although they may find themselves in dangerous straits, they can take back control of the ship of state and sail it into the calm waters of republicanism.
Taylor expresses hope for the future of self-government, insisting that it can be saved if constitutionalists will speak up and warn their neighbors of the impending loss of liberty. "But a good citizen will never despair of the republick [sic].... Penetrated by the conviction, that the constitution is in danger; that the balance has seriously inclined towards the side of consolidation; he comes forward to commune with his countrymen, and to state to them frankly his impressions and his fears," he wrote in 1820.
This sort of frank communication is the purpose of The New American and its parent organization, The John Birch Society. For nearly six decades the latter has served as a watchman on the tower, warning Americans of the approach of the forces of despotism, in whatever formation they march. Americans who cherish individual liberties and the Constitution that protects them would be wise to join with this like-minded organization and be an active participant in the struggle to restore our Republic.
John Taylor of Caroline died at home on August 20, 1824 while serving as a U.S. senator.
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|Title Annotation:||HISTORY--PAST AND PERSPECTIVE; John Taylor, Thomas Jefferson and James Madison|
|Author:||Wolverton, Joe, II|
|Publication:||The New American|
|Date:||Mar 21, 2016|
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