Why we’re losing liberty: an unsolicited response to Robert George and PragerU

We are all familiar with how routinely pundits rewrite American history to suit modern partisan agendas. While we expect it from leftists, however, we should be doubly rigorous on those who profess truth, principle, and righteousness on their side. Yet, conservative leaders do that same thing, often while trying to say the founders were originally on our side, and leftists have stolen our original liberties along the way. This is simply not the case, and Christian leaders need to exercise the courage to impose more integrity on the discussion.

This morning a PragerU video crossed my news feed. Some of these vids are good. This one was not so much, and it was cringeworthy at a few points in the most disappointing way: it is easily believable. It feeds a particular myth Christians and conservatives like to hear. It is a myth that reinforces other myths of the same nature.

The video in question, “Why We’re Losing Liberty,” is narrated by the one of the most esteemed conservative scholars in America today, Robert P. George.

In explaining why we’re losing liberty today, George says that the Federalist faction, led by men like Alexander Hamilton, opposed adding a Bill of Rights to the Constitution because they feared it would undermine the limits on government already inherent in the bare Constitution. On this limited point, he is correct.

But then he adds the following:

[W]when political necessity forced the Federalists to yield to demands for a Bill of Rights, they took care to add two important amendments — the ninth and tenth. . . .

These amendments reinforced the idea that the national government couldn’t just assume powers it had not been specifically granted by the Constitution. Unfortunately, these amendments have not stymied the expansion of the national authority. The power grab the Federalists feared — the national government taking more and more control over more and more areas of American life — took place. Not immediately, but over time, and especially beginning in the second half of the 20th century.

It is indeed true that “political necessity” forced the Federalists (really, the “Nationalist” faction) to include the Bill of Rights. It is hardly true, however, that men like Hamilton or Madison deserve the credit for taking care to add the ninth and tenth amendments as a means of protecting the limited government concept.

Further, it is hardly true that, as George goes on to say, “justices have plainly overstepped the bounds of their authority by creating law from the bench,” “especially beginning in the second half of the 20th century.”

Hardly.

On the first point, those two amendments were a part of the Bill of Rights. Anyone, such as Hamilton, who opposed the need for the Bill of Rights would also oppose the need for those amendments. Madison actually did introduce the Bill of Rights in Congress, and supported it, but not out of some care he took to protect limited government; it was out of political necessity. Those who did adamantly demand great control and limits on the federal government refused to ratify without it. Madison, being among the deftest of politicians of his time, took control of the process in order to appease these holdouts and ensure the passage of the Constitution as a whole, along with the centralizing powers in it.

Not only, however, did Madison not “take care” to reinforce limitations on enumerated powers, Madison himself led the charge against the single most important measure that would have truly limited those powers. During the process of debating the Bill of Rights, one of the proponents tried to insert the word “expressly” into the tenth amendment. With this, the federal government could only exercise those powers “expressly delegated” to it, and nothing beyond. There would then be no question or need for interpretations of implied powers, and certainly not the “penumbra” of the law.

This term had been included in the then-current national constitution, the Articles of Confederation. It certainly did create some headaches for the national government. It could not just print money, assume debts, make laws, and such things by itself. These are precisely the types of governmental headaches which make liberty-minded folk sleep sweetly.

This is precisely the type of measure you would expect a Madison to encourage and support. After all, in the leadup to these very debates, Madison himself had helped pen Federalist 45: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” This was meant to assure the public that the new national constitution would not be creating a federal behemoth. Who else would you expect to take care to insert the protection of the word “expressly” in order better to ensure that very principle?

Yet who led to charge to omit that crucial term from our Tenth Amendment when others tried to insert it? James Madison. And in his enormous political train, the vote against that term was swept 32–17.

With this, the second point also is rendered dubious at best. The Supreme Court did not really act in a way contrary to its original design. Nor did it take until the second half of the 20th century to do so. Both of these answers are clear in the legacy of Chief Justice John Marshall.

Marshall wrote hundreds of cases, among them the landmarks Marbury v. Madison (1803) and McCulloch v. Maryland (1819). In the former, Marshall established the practice of judicial review, by which the Supreme Court has struck down laws, including state laws, and virtually legislated from the bench ever since. Not only is this a simple fact, but every justice who has done so since then, including the liberal activist ones, have cited Marshall’s precedent in Marbury.

In the second case, Marshall targeted specifically the omission of the word “expressly” in the tenth amendment as the reason why Congress could exercise powers beyond those expressly enumerated in the Constitution, powers implied, or “necessary and proper.” In doing so, he gave the benefit of the doubt to the national government, and it has been so ever since.

This is the “federalism” of the Hamilton-Madison-Marshall. It really puts the “strong and energetic” in the phrase “limited government.” It blew through the Tenth Amendment like it was made out of paper. Justices have followed their example ever since with impunity, as the complaints of each political opponent to the contrary wanes into the muffled silence of the history behind them.

Look, people, there is no question that radical, activist Supreme Court justices have robbed us blind of liberty for beyond a century. What even the most revered conservative moralists don’t seem to acknowledge, however, is that those justices could quote iconic Federalists the whole time. Their sins are built on the prior failures of Hamilton, Madison, and Marshall.

For conservatives to keep pretending it’s all the fault of radical liberals is to tailor a victimology of their our own complete with conservative pundits’ shoulders to cry on.

Until we accept the reality of the past, we can’t really fix the future. We can’t beat mythology with more mythology. When the blind lead the blind, they both end up in the ditch. When the blind fight the blind, they both end up in the ditch, and probably injured or dead.

We need something more fundamental, more radically Christian, and more faithful.

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Joel McDurmon is the author of Restoring America One County at a Time, and many other books on biblical worldview.

American Vision’s mission is to Restore America to its Biblical Foundation—from Genesis to Revelation. American Vision (AV) has been at the heart of worldview study since 1978, providing resources to exhort Christian families and individuals to live by a Biblically based worldview. Visit www.AmericanVision.org for more information, content and resources