The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861 by Peter
Zavodnyik. (Washington, D.C.: Catholic University of America Press, 2007).

KEVIN GUTZMAN is a professor of history at Western Connecticut State University and the author, most recently of Who Kills the Constitution?: the Fate of American Liberty from World War I to George W. Bush.

Peter Zavodnyik’s new history of the
early Republic and antebellum America
tells the tale from a distinctive point
of view. While the standard account has
the federal government as highly limited
in the days before Fort Sumter, Zavodnyik
takes a different tack: the government’s
powers were generally understood as limited
to those enumerated in Article I, Section
8 of the Constitution, he says, but new
de facto powers were being added to the list
all the time.

Zavodnyik’s thesis is that the Union
failed in 1861 because of the failure of the
constitutional system.1 While Federalists
of the ratification campaign had promised
limited government and forecast that
the Constitution would prevent the rise
of faction, he says, a Southern minority
faction came to dominate the government.
Southerners feared that the North might,
if mobilized, exploit them through the
federal government, and when that contingency
materialized with the election of
Abraham Lincoln to the presidency, they
led their states out of the Union in defense
of slavery. His intention is to explain how
this happened.2

As Zavodnyik summarizes the matter
in his introduction, Congress early (he
says after 1815) slipped the reins of the
enumerated powers, and its expenditures,
in particular, soon took in an innumerable
variety of subjects. The presidency
exploited its control of federal patronage
to establish a “court” party in each state,
every little hamlet where there was a post
office of the United States, which gave it
an influence in American politics unimagined
by even the most executive-minded
founders. The Supreme Court, finally,
used what we might call “aggressive interpretation
techniques” to make itself a sort
of American Privy Council, an institution
much like the royal board charged
with exercising the Crown prerogative
of vetoing any and all colonial statutes.
(Zavodnyik seems unaware that in regard
to colonial Virginia, at least, the requirement
of a suspending clause meant that
the Privy Council exercised not merely
an absolute veto power, but the presumption
of a pocket veto unless the Council
took the affirmative step of allowing the
legislation to take effect. In some regards,
unelected federal officials today exercise
this kind of power over state legislation.)3

Zavodnyik’s first chapter starts where
it ought to, but where few such studies
do: with the antecedents to, and then the
drafting and ratification of, the Constitution.
His account of what occurred at Philadelphia
in the summer of 1787 is essentially
correct: he has the delegates disputing
the extent of new powers to be granted to
the general government, its structure, and
so on. Yet, although he shows some dele-
gates simply departing from Philadelphia
instead of helping to create so centralizing
a document as Alexander Hamilton, James
Wilson, James Madison, and their nationalist
friends wanted, our author does not
draw the right conclusion, which is that
the nationalists actually lost the debate
in Philadelphia. Their favorite reforms—
a congress with unlimited legislative
authority, an end to state legislatures’ role
in electing congressmen, unlimited judicial
jurisdiction, a congressional veto over
state laws, apportionment of both houses
by population, etc.—were repeatedly and
decisively rejected, despite their pleas.4

The ratification dispute has been misapprehended
since the days of John Marshall.
In fact, one might say that the case method
of instruction has resulted in the substitution
of John Marshall’s version of the
ratification dispute for reality.5 So, for
example, Marshall’s recurrent citations
of The Federalist as chief justice have led
to the nearly universal conceit that that
collection played a pivotal role in securing
ratification, which in fact it did not, and
to the habit of ignoring other arguments
in favor of ratification that had far more
influence on the outcome.6 The Age of Strict
Construction shows that Federalists sold the
Constitution in part on the basis of strict
construction. In state after state, Federalists
said that the new government would have
only the powers it was “expressly delegated”
(as Governor Edmund Randolph,
ratification’s chief proponent in the Richmond
Ratification Convention of 1788,
put it). This truth cannot be restated too
often.7

Even with this concession, Federalist
victory in 1788 was a near-run thing.8
Not only did New York, Virginia, and
finally Rhode Island ratify only with the
explicit understanding that they could
secede if need be, but the Tenth Amendment
would soon make explicit the principle
that Governor Randolph and other
leading Federalists had called implicit: that
Congress would have only a few powers.

Experts in the field will note the omission
of particular details that might have
buttressed Zavodnyik’s account. This is
to be expected, in light of the fact that he
is a practicing attorney and not a scholar
of the subject. Still, again, he is to be
commended for the very unusual achievement
of casting the ratification campaign
in precisely the right way.

The next chapter of The Age of Strict
Construction is concerned with the constitution
in the formative Federalist years,
1789–1801. At the beginning of that time,
the people continued to insist on amendments.
All nine of the states that proposed
particular amendment language included
provisions echoing Randolph’s vow that
Congress would have only the powers it
was “expressly delegated.”9 While this
eventuated in the Tenth Amendment,
James Madison, true to form, endeavored
to use the amendment campaign as a
cover for actually securing more power for
the central government—this time via a
provision making the freedoms of speech,
press, and religion, as well as trial by
jury, enforceable by federal courts against
state governments.10 As in Philadelphia,
however, he was rebuffed.

Madison’s amendment-related efforts
were typical of those of nationalists in
this period. They immediately undertook
a concerted effort to remake the federal
government they had promised in the ratifi-
cation debate into the national one they had
tried to create in the Philadelphia Convention.
11

Zavodnyik’s narrative is here as elsewhere
peppered with obvious factual
errors. So, for example, he has Alexander
Hamilton writing “almost half” of the
essays in The Federalist,12 when he really
wrote 60 percent of them; he has the first
Congress creating a justice department,13
when in fact there was no such department
until Reconstruction; he speculates
that Hamilton’s appointment as secretary
of the Treasury may have been due
to the country’s financial difficulties
and the New Yorker’s banking experience,
when in fact the train of events that
culminated in Hamilton’s appointment is
well-documented;14 and he has Hamilton
persuade Madison to convince Virginia
congressmen to support assumption in a
House vote, when in fact Madison merely
got them to abstain.15 In the earliest days
of the new government, James Madison
and others insisted that their fellow federal
officeholders comply with the people’s
demand that they exercise only the powers
“expressly delegated.” Yet, a large contingent
of those officials—under Hamilton’s
leadership, a passing majority—behaved
as if they led a national rather than a
federal government. Here we see the acute
centripetal pressure on the system.

In general, this is a standard account
of the Federalist era, with the addition
of an emphasis on the original understanding
of the limits of federal power.
Again, this is exactly as matters ought to
be understood: perhaps Hamilton’s arguments
about national governments make
sense in the abstract, but they were at odds
with what the people had been promised,
and thus ratified. The legitimate position,
that is, was the reigning one. Interestingly,
Zavodnyik considers matters in this
chapter from each branch’s point of view.
The Congress’s usurpations in regard to
appropriations were limited in the 1790s
to assumption of state debts, he says, while
the executive branch’s use of the federal
patronage began almost from the beginning
to give the president more influence
than he had been supposed to have. This
latter is a theme that runs through the rest
of the book. Another repeated issue is the
willingness of federal judges to invalidate
state laws merely because they judged them
undesirable.16 In fact, by the end of his
Federalism chapter, Zavodnyik has established
the pattern of federal governance
not only down to 1861, but all the way to
the present: judges feel free to invalidate
laws they dislike simply on that basis, presidents’
appointment and other powers give
them outsized influence not only within
the federal system but in state-level politics
as well, and Congress feels free to appropriate
for any purpose it pleases.17

Analysis of a section of the Federalism
chapter may serve to highlight the problem
inherent in a work by a non-specialist. In
his discussion of the Virginia and Kentucky
Resolutions of 1798, Zavodnyik maintains
that it was unclear in “James Madison’s”
Virginia Resolutions exactly what they
meant when they noted that in case of
unconstitutional and dangerous federal
policy, the states “have the right, and are
in duty bound, to interpose.” Zavodnyik
asks, “‘Interpose?’ Did that mean nullify
or void offensive laws? Madison did not
say.”18 Were Zavodnyik familiar with the
journal literature, he would know that the
Virginia House of Delegates in debating
the Resolution of 1798 had come to a firm
conclusion that unconstitutional laws were
void ab initio.19 It is a common mistake to
rely solely on Madison’s published papers
for information on the Resolution’s
meaning, but it was not Madison’s understanding,
but the General Assembly’s, that
was Virginia’s public policy.

The account of the Republican Dynasty
here is similar to that offered by Henry
Adams in the late nineteenth century.
The fortress of limited federal government
was, in Jefferson’s apt metaphor, consis
tently sapped and mined by the Federalist-
dominated judiciary. In addition,
stray policy initiatives such as the Embargo
and those of Congress’s appropriations for
road construction to which the Virginian
triumvirs ( Jefferson, Madison, and James
Monroe) agreed, provided precedents
to which later, more systematic usurpers
could point.

It was not until the age of Andrew
Jackson, however, that political parties’
potential to centralize American politics
wrought a permanent constitutional
revolution. Zavodnyik sounds much like
William W. Freehling’s version of John
C. Calhoun20 in thinking that the spoils
system almost necessarily would bring the
end of republican government in its train.
From Jackson’s time to the apotheosis (or,
if one likes his statesmen disinterested, the
nadir) of patronage/spoils/wire-pulling in
the days of James Buchanan, the picture
is a very ugly one. Ultimately, state and
lower-level Democratic Party conventions
of antebellum days were persistently
packed with federal employees whose livelihoods
depended on their doing the president’s
bidding. Among other results were
the disastrous successes of the Buchanan
Administration in getting its way in regard
to slavery in Kansas Territory.

If Zavodnyik is to be believed, little
in state-level politics of the 1840s and
1850s passed without some direction from
Washington. While Congress’s role in the
economy never reached the level advocates
of central planning such as Henry
Clay hoped it would, the potential was
there from the beginning. Ultimately, the
Union foundered on Southerners’ realization
that not only was the federal government
powerful beyond the founders’ imagination,
but its influence would be used
against slavery once Abraham Lincoln was
inaugurated. “The Age of Strict Construction,”
then, was really the epoch of constitutionalism’s
gradual disappearance. For
all its flaws, Zavodnyik’s account of this
crucial development is worth reading.

NOTES

  1. That idea is not new, of course. See K[evin] R. Constantine
    Gutzman, “Review of Mark E. Brandon, Free in
    the World: American Slavery and Constitutional Failure,” in
    Modern Age 42 (2000), 398–403.

  2. p. 5.
  3. p. 6.
  4. The
    first account of the Philadelphia Convention to be based
    on some of the secret accounts kept by delegates at the
    time was John Taylor of Caroline’s New Views of the Constitution
    of the United States (1823). For an account along
    similar lines that brings the story down to the present,
    see Kevin R. C. Gutzman, The Politically Incorrect Guide
    to the Constitution (Washington, D.C.: Regnery Publishing,
    2007).

  5. See Gutzman, The Politically Incorrect Guide
    to the Constitution, and Kevin R. C. Gutzman, Virginia’s
    American Revolution: From Dominion to Republic, 1776–
    1840 (Lanham, MD: Lexington Books, 2007), particularly
    chapters 3 (on ratification in Virginia), 4 (on 1798),
    and 6 (on the Virginian Republicans and the Marshall
    Court).

  6. See K[evin] R. Constantine Gutzman, “Review
    of Colleen A. Sheehan and Gary L. McDowell,
    eds., Friends of the Constitution: Writings of the “Other”
    Federalists, 1787–1788,” in Modern Age 41 (1999), 364–7.

  7. Gutzman, Virginia’s American Revolution, chapter 3,
    demonstrates that in the pivotal state of Virginia, this
    argument—which was at odds with the hopes of such as
    Hamilton, Madison, Gouverneur Morris, and Wilson in
    the days before and throughout the Philadelphia Convention—
    was the basis of Federalist success in the ratifi
    cation campaign.

  8. Though not so close as our author
    would have it. (P. 34.) New York’s convention ratified
    by 30–27, not 30–29.

  9. Zavodnyik, p. 36.
  10. p. 37.
  11. See Gutzman, The Politically Incorrect Guide to the Constitution.

  12. p. 37.
  13. p. 38.
  14. Stuart Leibiger, Founding
    Friendship: George Washington, James Madison, and the
    Creation of the American Republic (Charlottesville, VA:
    University Press of Virginia, 1999).

  15. p. 41.
  16. p. 65.
  17. For full development of this argument, see Thomas
    E. Woods, Jr. & Kevin R. C. Gutzman, Who Killed the
    Constitution? The Fate of American Liberty from World War
    I to George W. Bush (New York: Crown Forum, 2008).

  18. p. 76.
  19. Kevin R. C. Gutzman, Virginia’s American
    Revolution: From Dominion to Republic, 1776–1840, chapter
    4, which is an amended version of K[evin] R. Constantine
    Gutzman, “The Virginia and Kentucky Resolutions
    Reconsidered: ‘An Appeal to the Real Laws of
    Our Country,'” The Journal of Southern History 66 (2000),
    473–96.

  20. William W. Freehling, “Spoilsmen and Interests
    in the Thought and Career of John C. Calhoun,”
    Journal of American History 52 ( July 1965): 25–42.