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Friday, July 10, 2020

St. George Tucker: The American Founding’s ‘Preeminent’ Originalist

American Founding Father St. George Tucker searched for “the criterion that distinguishes laws from dictates, freedom from servitude, rightful government from usurpation.”

While many of America’s founders are justifiably famous, others have received too little attention. St. George Tucker is one.

Born July 10, 1752, in Bermuda, Tucker was a militia colonel in the American Revolution, who even wrote Liberty: a Poem, on the Independence of America that George Washington said “was equal to a reinforcement of 10,000 disciplined troops.” Afterward, his service included his appointment to the 1786 Annapolis Convention that led to the Constitutional Convention, and his opposition, with Patrick Henry and George Mason, to adopting the Constitution in the absence of a bill of rights.

Tucker’s greatest service to posterity, however, involved the law. Not only was he a law professor and judge on three different Virginia courts, historian Clyde Wilson noted that,

St. George Tucker’s View of the Constitution of the United States was the first extended, systematic commentary on the Constitution after it had been ratified by the people of the several states and amended by the Bill of Rights. Published in 1803 by a distinguished patriot and jurist, it was for much of the first half of the nineteenth century an important handbook for American law students, lawyers, judges, and statesmen.

David Kopel wrote, “St. George Tucker is perhaps the preeminent source of the original public meaning of the Constitution. His 5-volume American edition of Blackstone’s Commentaries was by far the leading legal treatise in the Early Republic.”

Tom DiLorenzo summarized it as laying out “the Jeffersonian interpretation of the Constitution, which was replaced by the centralizing, big government…interpretation after 1865.” The fact that the Supreme Court has cited Tucker 40 times illustrates the importance of his work.

Today, with St. George Tucker’s commitment to limited government, states’ rights, and the judiciary’s role of preventing government oppression a too-dim memory, his insights into liberty and the original understanding of government under our Constitution are worth revisiting.

  1. In this country…the blessings of liberty have been…dearly purchased.
  2. In a government founded on the basis of equal liberty among all its citizens, to be ignorant of the law and the constitution is to be ignorant of the rights of the citizen.
  3. What can be more absurd than that a person wholly ignorant of the constitution should presume to make laws pursuant thereto?
  4. A distinction…does exist between the indefinite and unlimited power of the people…and the definite powers of the congress and state legislatures, which are severally limited to certain and determinate objects.
  5. All men being by nature equal, in respect to their rights, no man nor set of men, can have any natural, or inherent right, to rule over the rest.
  6. Legitimate government can…be derived only from the voluntary grant of the people, and exercised for their benefit.
  7. Every extension of the administrative authority beyond its just constitutional limits is absolutely an act of usurpation in the government.
  8. Government originally founded upon consent, and compact, may by gradual usurpations on the part of the public functionaries…become a government of force. In this case, the people are as completely enslaved as if the original foundations of the government had been laid by conquest.
  9. No people can ever be free, whose government is founded upon the usurpation of their sovereign rights.
  10. If in a limited government the public functionaries exceed the limits which the constitution prescribes to their powers, every such act is…treason against the sovereignty of the people.
  11. A constitution is a thing antecedent to a government…Hence every attempt in any government to change the constitution (otherwise than in that mode which the constitution may prescribe) is in fact a subversion of the foundations of its own authority.
  12. A written constitution…[is] a beacon to apprise the people when their rights and liberties are invaded, or in danger.
  13. Abuse of power is despotism…the right of one man is at the mercy of another, and freedom in such a government, has no existence.
  14. It is indispensably necessary…that there be a perfect equality of rights among the citizens… Equality of rights necessarily produces inequality of possessions; because, by the laws of nature and of equality, every man has a right to use his faculties in an honest way, and the fruits of his labor, thus acquired, are his own.
  15. The rights of property must be sacred.
  16. A thousand…pretexts and arguments…form the ladder by which the agents of the people mount over the heads of their constituents…from whence they behold those who have raised them with contempt.
  17. The American states have reserved to themselves…the administration of justice…in all cases whatsoever, in which they have not specifically consented to the jurisdiction of the United States.
  18. [Federal] jurisdiction extends to certain enumerated objects, only, and leaves to the several states a residuary and inviolable sovereignty over all other objects.
  19. This original compact…is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question…it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute.
  20. The authority of the federal government…ought therefore to receive the strictest construction. Otherwise the gradual and sometimes imperceptible usurpations of power, will end in the total disregard of all its intended limitations.
  21. The federal government…Having no existence but under the constitution, nor any rights, but such as that instrument confers…can possess no legitimate power, but such as is absolutely necessary for the performance of a duty prescribed and enjoined by the constitution.
  22. Until, therefore, the people of the United States…shall think it necessary to alter, or revoke the present constitution of the United States, it must be received, respected, and obeyed among us, as the great and unequivocal declaration of the will of the people, and the supreme law of the land.
  23. The powers delegated to the federal government…have no relation to the domestic economy of the state. The right of property, with all its train of incidents…and the rights of persons appear to be no further subject to the control of the federal government, than may be necessary to support the dignity and faith of the nation in its federal or foreign engagements, and obligations.
  24. Since the citizen is on no other account obliged to pay taxes, or undergo any other public burden, but as they are necessary to defray the expenses of the state, it ought to be the singular care of the government to draw no further supplies than the exigencies of the public require.
  25. The first question is whether the power be expressed in the constitution.
  26. All governments have a natural tendency towards an increase and assumption of power; and the administration of the federal government, has too frequently demonstrated, that the people of America are not exempt from this vice…parchment chains are not sufficient.
  27. A representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents.
  28. The right of self-defense is the first law of nature.
  29. Every power which concerns the right of the citizen, must be construed strictly, where it may operate to infringe or impair his liberty.
  30. In the United States, the great and essential rights of the people are secured against legislative as well as executive ambition…by constitutions, paramount to all laws: defining and limiting the powers of the legislature itself, and opposing barriers against encroachments.
  31. The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state.
  32. Absolute independence of the judiciary…[is] necessary to the liberty and security of the citizen, and his property.
  33. The judiciary…is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority.
  34. A law limited to such objects as may be authorized by the constitution, would…be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void.
  35. The object of the several states…was not the establishment of a general consolidated government…but a federal government, with powers limited to certain determinate objects.
  36. Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws.
  37. As the subjects upon which congress have the power to legislate are all specially enumerated, so the judicial authority…is limited to the same subjects as congress have power to legislate upon.
  38. People of America have not thought proper to suffer the freedom of speech and of the press to rest upon such an uncertain foundation as the will and pleasure of the government.
  39. Whenever [civil] liberty is, by the laws of the state, further restrained than is necessary…a state of civil slavery commences…This species of slavery also exists whenever there is an inequality of rights, or privileges, between the subjects or citizens… for the pre-eminence of one class of men must be founded and erected upon the depression of another; and the measure of exaltation in the former, is that of the slavery of the latter.

St. George Tucker searched for “the criterion that distinguishes laws from dictates, freedom from servitude, rightful government from usurpation.”

And Clyde Wilson suggests that his answer is best summarized in his statement that, “It is the due [external] restraint and not the moderation of rulers that constitutes a state of liberty.”

Given that today, the federal power to oppress has clearly increased at the expense of Constitutional restraints, we should give Tucker’s understanding as much serious thought now as our forefathers did when our great experiment in liberty began.

  • Gary M. Galles is a Professor of Economics at Pepperdine University and a member of the Foundation for Economic Education faculty network.

    In addition to his new book, Pathways to Policy Failures (2020), his books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014), and Apostle of Peace (2013).