The usual rightist history mess has just come from Ted Cruz, invoking the antifederalist Patrick Henry in making a claim on the U.S. Constitution. [If you’ve seen my Twitter rant on this, you’ve basically seen this.] I prefer to believe Cruz is more disingenuous than ignorant: as I suspect of Grover Norquist too, Cruz may know full well that he’s fighting a rear-guard battle on behalf not of the Constitution but of antifederalism.
Patrick Henry is one of Cruz’s avatars of liberty, no doubt because of the “or death” speech. And yet Patrick Henry fought tooth and nail to demolish the Constitution that Cruz says we need to “reclaim.” Henry was open about his disdain for the Constitution. He refused to show up at the Constitutional convention and tried his best to prevent ratification.
That’s because Henry understood how the Constitution works. Provisions like the “necessary and proper” and “interstate commerce” clauses, he complained, give the federal government virtually unlimited power over the states.
Where “constitutional conservatives” like Cruz claim that those clauses have been unconstitutionally stretched, Henry knew better. Overwhelming federal power is constitutional, Henry said. That’s what the Constitution does. That’s why he hated it. And the amendment process, which some today like to think got rid of federal overreaching and re-empowered the states, while some today think of the amendment process as getting rid of federal overreaching and re-empowering the states, Henry thought that process was a joke.
So imagine Henry’s fury when Madison and Jefferson, having tried in the late 1780’s to soothe all fears of excessive federal dominance, decided they didn’t like what Washington, Hamilton, Adams, et al, had been doing, and started claiming in the 1790’s that the states could constitutionally nullify federal law. No, Henry reminded them: states can’t do that. That’s the whole problem, fools. That’s why I told you not to promote and ratify this thing. You can’t get out of it now. Suck it up.
With more or less his dying breath, the old antifederalist Patrick Henry (at Washington’s behest) rose from his bed to condemn Madison’s novel states-rights theory. His final speech is far better documented than the “or death” speech of the 1770’s. You blew it, Henry told Madison and others. Now that the Constitution he’d warned them against was ratified, it was law.
Or: Unlike “constitutional conservatives” today, Henry a) knew what the Constitution said, b) hated it openly, c) supported it as law. Henry is one of my favorite founders, not because I agree with him about the lost sanctity of Virginia sovereignty, etc. — he was another slave-driving, high-Whig squire, with no use for democracy — but because as such, he was almost alone among the famous founders in being intellectually honest. He stood on his principle even to the point of honoring a Constitution he hated. With the exception of John Dickinson — also on “the wrong side of history” — Henry is literally, I think, the only founder who shows that kind of consistency.
I don’t think that’s what Cruz is saying about him, though.
William Hogeland 
This post is the reason I check this blog day after day during long stretches of inactivity.
Great post again.
Bill,
The private college-prep school where I have taught American History for two decades hosted a luncheon for Ted Cruz last year. The student body and the faculty were required to attend. I was “bemused” at this, since the school has never in my knowledge hosted a blatantly political event, which this obviously was.
Some of my students asked me what I thought he would say to us all. I replied that he would say what one might expect him to say, given his obvious predilections. He did just that and ended with a benediction to American Exceptionalism. This was sufficiently heavy-handed that even a few of my students choked on it, affluent and spoiled as they generally are.
But more to the point of your post, it should be obvious (to those of us who are not obvious-challenged) that the Constitution was not intended to do whatever the hell Cruz blathers about. I’m not sure whether this is disingenuousness on his part or whether he merely is a True Believer of nonsense. His ambition is a given.
What we do know is that his brand of “limited government” boilerplate has been getting so much press since Reagan that a lot of folks have never heard anything else. I have discovered (as I am certain you have) that a lot of folks out there do not appreciate it when one points out what the Constitution actually says, as opposed to what they believe it ought to say, regardless whether or not they have ever read it.
I published the following piece a couple of years ago and was surprised at the amount of abuse heaped upon the messenger. I’m sure you’ve had your share.
https://consortiumnews.com/2013/07/06/the-rights-made-up-constitution/
Best,
Jada
Its always entertaining to see how partisans twist themselves into knots to score cheap points, and distract their own base from the obvious, and repeated failures of their ideology.
My understanding of your argument is that American “conservatives” who argue for limiting the power of the Federal Govt are being dishonest if they lionize Patrick Henry because they also argue for a return to our system of Constitutional restraints on the Federal Govt (and especially Executive Branch). So, “conservatives” must either call out for revolution (and tear up of the Constitution) in order to remain true to Patrick Henry’s legacy, or must disavow and reject him and subsequently surrender to the “Left’s” hunger for ever-expanding bureaucracy, because, as you say, parts of the Constitution “give the federal government virtually unlimited power over the states.”
Is there really no place in between those two extremes? Is it possible that we first begin by returning to Constitutionally restrained government like the one we had, say, a ten years ago? (Just for starters? Which might go a long way to fixing many problems.) And then, later, we can follow up with your idea, and discuss amending the Constitution to change things like the Commerce Clause? (Which side of that discussion would you would be?)
Rather than seeing Mr. Cruz’s calls for limiting Federal Power as wise or prudent, he is called out for being dishonest, racist, hateful of this group or that,
and called out for being ignorant of history (which is your expertise). Perhaps the problem is simpler: There are a number of Americans who want NO limits placed on executive power, want to impose their world view on others, and an industry of “pundits” who provide flack to distract them from the failures of that ideology.
After reading Jada Thacker’s article and its comments, I am shocked. The giddy jubilation expressed by his readers, at the argument that the Constitution doesn’t really limit federal power, coupled with their complete hatred and disdain for half of their countrymen, is terrifying and saddening.
For my child’s sake, I hope that such views are held by only a small majority of Americans.
Michael –
I find your wish to return to a “Constitutionally restrained government like the one we had…ten years ago” curious. That year was 2005.
Before that year had fairly begun, it had been revealed that the president had previously authorized the NSA to spy on the American citizens in contravention of the FISA Act of 1978. In response to the revelation, he said the NSA would continue to do so, regardless of the law or public outrage. Just months before, it had also been revealed that US armed forces (having invaded a nation with no Constitutionally-authorized declaration of war) had methodically tortured Iraqis at the Abu Ghraib prison in plain contravention of Geneva Conventions (treaties) to which we are a party, and which are thus mandated to be “the supreme law of the land” under Article VI of the US Constitution. These acts were blatantly unconstitutional. Thus they were not acts of a “Constitutionally restrained government,” as you claim.
Doesn’t it seem inconsistent to take me to task for pointing out that the US Constitution was not intended to provide for “limited government” of the type espoused by politicians such as Ted Cruz, while you want to “return” to a point in time where what few Constitutional provisions do exist were trashed by government?
Let me be explicit. The Constitution, as Mr. Hogeland has taken great pains and much effort to explain, was not written in order to limit federal government power, but to conserve and extend that power in the hands of those who penned it. No doubt, had Senator Cruz been alive in 1787, he would have crashed the Philadelphia convention with bells on. And the result most likely would have been the same, except perhaps for the inclusion of an Article that mandated God-given American Exceptionalism.
Since it appears you have badly misread my article, let me say clearly again that I do not think unlimited, undemocratic power is a good, or even sane, idea at any level of government. Unfortunately, the document we got in 1787 did not preclude such an outcome. Even more unfortunately, after many happy modifications to that originally undemocratic script, folks like Cruz and you want to go back to re-commit the original sin, as it were. The good news for you and Cruz is that you are winning the argument. So you may take heart.
I am perplexed that you were “shocked” by what I wrote. Please let me know what shocked you.
Jada
Jada,
Thanks for your response. And thanks Mr Hogeland for providing this forum.
I will try to be brief, although I think this is the preeminent issue of our time. As for what shocked me about your article, I stated: “The giddy jubilation expressed by his readers, at the argument that the Constitution doesn’t really limit federal power, coupled with their complete hatred and disdain for half of their countrymen, is terrifying and saddening.”
I do apologize for having used a “ten-year” comparison for my comment. It was made tongue in cheek, in that I did not mean that 10 years ago was the ideal state of our constitutionally constrained US Govt. But only that returning to that (albeit, sorry) time would mark a movement towards a government *more* limited than the one we have today. I hope you, at least, acknowledge that things are getting worse in that respect. The current president has continued and expanded most (if not all of the activities) you sited, including several new undeclared wars, and so if anything, we have taken several more steps in the wrong direction. So, yes, my point was that even going back 10 years would be an improvement.
However, my sadness really grows from another change I perceived during this last ten years. Namely, that Americans no longer celebrate the idea of limited government at all. During my formative years (at an outrageously left-wing school, mind you) there was still some call for limited government (perhaps only because those teachers and their activist colleagues were not yet in positions of power, who knows?). But from your work and Mr Hogeland’s, it appears that either those teachers were unaware that the Constitution did not limit government, or believed that instilling in their students a respect or love for the ideal of limited government had value none-the-less, because the phrase limited government was often used. You must admit that that phrase is still thrown about even today. But, recently, with a progressive Democrat occupying the White House many Americans openly embrace the idea that there is no implication of limit-government, and never was really, and have tossed out that cautious approach to government with “giddy jubilation … that the Constitution doesn’t really limit federal power.” They now advocate that Government should make you a better person. Immanentize the eschaton, I suppose.
I fear that the current political polarization in the US may be related to the fact that more and more people are celebrating and openly advocating for limitless government (which you and Hogeland say was always there) while there are still many of us who believe (foolishly perhaps) in the ideal of limited government. If so, then there may be no common ground to be found between the two groups, and violence will be the ultimate result. I for one, will actively work to undermine limitless government for the remainder of my life.
But final observation. You wrote: “… let me say clearly again that I do not think unlimited, undemocratic power is a good”. As you may have guessed, I would argue that “unlimited, democratic power” is also not good. I refuse to be governed by the mob. Regardless of how righteous they believe themselves to be.
But nobody is talking here about “limitless government” — at least I’m not, contrary to your characterization of my post. I was writing about Patrick Henry’s view that thanks to the commerce and necessary-and-proper clauses, the Constitution as ratified gave the national government powers that overwhelmed those of the states. I think it should be obvious that my pointing that out has nothing to do with any cockamamie claims that the federal government has unlimited power. For all I know, you think Henry was wrong in his view of the Constitution, but I see a historical conflict in Cruz’s (and others’) making claims at once on Henry and on the Constitution that Henry objected to for those reasons. The idea that any critique of Cruzesque rhetorical claims on U.S. history must equate ineluctably with some clarion call for “limitless government” — along with a call for government to make everybody better people — seems to precede your reading of my post and overdetermine your interpretation and response.