Principalities & Powersrnby Samuel FrancisrnThe Constitution, R.I.P.rnOn July 22 of this year, the Washingtonrn’limes pubhshed, as the weekly installmentrnof its “Civil War” section, a long articlernby a gentleman named MackubinrnThomas Owens, described as “professorrnof strategy and force planning” at thernNaval War College in Newport, RhodernIsland, under the headline, “Secession’srnapologists gut Constitution, history.”rnThe burden of the article was to arguernthat both the Confederate defenders ofrnsecession in 1861 and their intellectualrndescendants today (in what is sometimesrndubbed the “neoconfederaternmovement”) were and are full of beans.rnProfessor Owens, a disciple of Lincolnrnapologist Harry Jaffa, expressed thernview —shared by Alexander Hamilton,rnJohn Marshall, Daniel Webster, andrnAbraham Lincoln, among others—thatrnthe U.S. Constituhon, far from being arn”compact among the states” as the Confederatesrnclaimed, is really an act of a singlernunited people. It follows from thatrnview, of course, that neither “states’rnrights” in any significant sense nor secession,rnlet alone such doctrines as “nullification,”rnare constitutionally valid; thatrndie seceding states of 1861 were engagedrnin acts of treason and rebellion; and thatrnthose who support their doctrine todayrnarc not only in error but also probably ofrndubious loyalty themselves.rnIt was not the first time that the Times,rnwhose editor likes to describe it as the “officialrnvoice of the conservative movement,”rngave prominence to what is generallyrn(but not very usefully) known as thern”nationalist” theory of the Constituhon.rnIn 1998, the editorial page published arnlong letter from a reader articulating thernsame view of the Constitution, which wasrnchallenged in a subsequent letter, publishedrnsome days later. In the case of thernOwens article this year, however, no onernseems to have bothered to question thernaccuracy of his interpretation.rnYet the truth is that Professor Owens —rnas well as Hamilton, Marshall, Webster,rnand Lincoln, not to mention ProfessorrnJaffa —is the one who is full of beans.rnThe “nationalist” (let us, for the sake ofrnclarit}’, call it the “unitary”) interpretationrnis wrong; indeed, it is so obviouslyrnwrong that its partisans have to rely almostrnentirely on unsubstantiated assertionsrnto make the case for it.rnMy purpose, however, is not to rehearsernthe argument for the compact theoryrnor to refute the imitary interpretation.rnThe simplest way to substantiate therncompact theory is to point to both therncontent and the grammar of the Declarationrnof Independence, in which the “representativesrnof the United States” declarernthat “these united colonies” are “free andrnindependent states” and assert that “they”rn(the “states”) possess “full power . . . to dornall other acts and things which independentrnstates may of right do.” The point isrnthat the Declaration does not establish arnunitary state but recognizes 13 states,rnwhich are consistently spoken of in thernplural throughout the document (as theyrnare in the Constitution). The other obviousrnpoint is that at no time did the Americanrnpeople as a whole vote on nationalrnindependence, adoption of the Declaration,rnor ratification of the Constitution,rnnor indeed do they so vote today. Theyrnassented to independence, the Declaration,rnand the Constitution as and by thernstates, and even today there is no singlernelected federal officeholder who is chosenrnby the vote of all the American peoplernapart from the states. This is clearlyrntrue of senators and congressmen, but itrnis also true of the president, who remainsrnchosen by the votes of the Electoral College,rnwhich is appointed by the states.rnMoreover, it is three fourths of the statesrnthat are able to amend the Constitution,rnnot a majority or super-majority of thernAmerican people as a whole. The primacyrnof the states is and always has been obvious,rnand there is little more to be saidrnabout it.rnNevertheless, as Professor Owens’ articlernand similar expressions make clear,rnthe compact theory of the Constitution,rnregardless of its historical and legalisticrncorrectness, is virtually defunct as an operativerndoctrine of constitutional interpretation;rnand with its consignment tornoblivion, the rest of the Constitution hasrnvanished as well. Although there seemsrnto be some revival of interest in the TenthrnAmendment, states’ rights—the heart ofrnreal federalism —died with the compactrntheory. States’ rights make no sense if therncompact theory is false, the union wasrnreally formed by a single act of the wholernpeople, and states are mere administrativernunits of the central government.rnAlong with states’ rights vanishes much ofrnthe rest of the Bill of Rights, at least in itsrnoriginal and correct function as a restiaintrnon the federal government, as wellrnas any other restraint on big government.rnIf the federal government is the directrnrepresentative of the “people” as a whole,rnthen it can do pretty much whatever itrnwishes to do, and we are delivered intornterritory perilously close to Rousseau’srnCeneral Will. The use of the CommercernClause and the “IncorporationrnDoctrine” to overturn state and local lawsrnhas largely completed the process. Today,rnthe United States simply no longerrnhas a constitution at all, apart from whatrnthe ruling class and its running dogs onrnthe Supreme Court say is the constitution.rnMoreover, so defunct is the realrnConstitution that neither most academies,rnlike the learned ProfessorrnOwens, nor most self-described conservatives,rnsuch as a good many of my formerrncolleagues at the Washington Times, anyrnlonger know what the real Constitutionrnwas or even that there used to be a Constitutionrnquite different from the one thatrnnow is purported to prevail.rnThere is, of course, sort of a constitution,rnand you may discover somethingrnabout what it says by listening to the collegernstudents surveyed several years agornwho believed that the statement “Fromrneach according to his ability, to each accordingrnto his need” came from it. Thisrnpassage from the Communist Manifesto,rnwhich served as the official motto of thernSoviet Union, is in fact a fairly accuraterndescription of what the current constitutionrnholds. How the new constitutionrncame to be adopted has been the subjectrnof several expositions in recent years by,rnamong others, Garry Wills, JamesrnMacPherson, and Columbia Universityrnlaw professor Ceorge Fletcher.rnLast year, in this space, I quoted ProfessorrnFletcher’s view, published in thernNew Repubhc in 1997, that the originalrnConstitution was abolished by the AmericanrnCivil War and that Lincoln’s CettysburgrnAddress “signals the beginning of arnnew Constitution” in which “equality,rnabsent from the original document,rncomes front and center. . . . the UnitedrnDECEMBER 2000/35rnrnrn