Aspects of American History

Volunteerism in American Politics vs. Humanist Elitism

Professor: Dr. R.J. Rushdoony

Subject: History

Genre: Lecture

Track: 08

Dictation Name: RR252A2

Location/Venue: __

...And politics or political order. We have been as you will recall analyzing the subject of voluntaristic church. This came from the idea of an established church created by the state, financed by the state, to one that is a product of voluntarism: where a people came together to create and establish the church by their faith, by their giving, So that it is not dependent on the financing or the support of the church, but upon the people. And we saw the political order in the united states and every kind of social order was a product to varying degrees to this principal of voluntarism.

Now as we look at the political order and voluntarism we must recognize that before the principal of voluntarism came in the problem of civil government was relatively simple under monarchy. Monarchy has always offered a great deal of appeal historically to various peoples. Under a monarchy authority is centralized, and the duty of the people is simply obedience. Moreover it must be recognized that through a great deal of the history of mankind man and nations have preferred monarchism.

The idea of monarchism is still not gone. It survives in some areas, for example in Austria there is still a very sizable- a highly intelligent group of Austrian Catholics who are monarchists. Their strength is so feared that there are certain restriction upon the presence of the Habsburg’s in Austria. Monarchy thus has always had a very obvious appeal- it simplifies the problem of government. It also makes it easier to ascribe guilt and credit... if you don’t like the way things are going there’s one man to blame: it’s King John, or King George, whatever the case may be. It does simplify the issue as far as people are concerned too. But when you have a shipped [?] from some such form of government as monarchism to a republic in the American tradition certain problems immediately arise, You are shifting then from a given structure to a gathered structure.

Now these terms were originally used with regard to churches, the given church was the one that was already there, it was established by the church, it was a church that you owed authority to, you were in the parish, you paid the tithes automatically, you belonged to that parish because you resided within that parish. And everyone within that parish belonged to that particular church. But a gathered church was something different. In a gathered church a group of people would gather themselves together in terms of a specific faith, and instead of coming from a parish and all being in the church because they were in that parish, they might come from a good many miles.

No doubt some of you here have traveled 15, 20, 25 miles tonight to be here at this meeting. And no doubt some of you do the same to go to this church or whatever church you may attend, because you’re concept of the church is of a gathered church. A people who come together in terms of a specific faith, a particular doctrine. And it is because this is the rallying point that you come together in terms of it. Now historically the given type of churches prevailed in Europe, all your European churches, Protestant and Catholic, were given. You went to a particular parish of a Catholic church because you were in that jurisdiction, or to a Dutch Reformed church because you were in that parish, or a Presbyterian church in Scotland because you were in that parish.

But in a gathered church, you go in terms of your faith. This is why you are going to a particular church because while there may be another church closer to you you feel “I belong to that one in terms of my faith” and today even with regard to Catholic churches which long before than any other were given, they are increasingly gathered churches, because in recent years with Vatican II there has been an increasing line of division between those who stand merely in terms of loyalty to the institution and those who stand in terms of loyalty to the Catholic faith and will have special worship in terms of a Latin mass or in some cases they’ve gone to the Byzantine rites but it is a gathered group!

Now when you transfer this same thing to the area of the state, what happens? The state instead of something which is established and it’s always been there and by tradition by authority it is there, authority comes from the top down, the state suddenly becomes something too established.

 

You have to start out and establish a state, and of course when men came to America, even though the crown gave them charters and there were guidance's from London and from Spain and Latin America, still, man had to set out to establish certain guidelines in terms of a New World in terms of a new situation. And so it created a radically different kind of situation especially in America, in the United States, where more than anywhere else, men had to establish a pattern of government.

Now an established government solves a lot of problems precisely because it is established. Consider great Britain. They talk about the British constitution. Where is it? Well there is no written constitution in Britain. When they speak of the British they mean the way of doing things, as over the century it has been given them so that there is an established pattern, an established tradition, in terms of which everything is done. Now, when you have an established pattern it makes everything simple. You have no problems. Things are done today in Britain the way they have been done in various areas generation after generations and certain traditions are carried on, the changing of the guards appeals to Americans when they go there, why because the guards represent so established and entrenched a tradition they don’t change their dress generation after generation. Things are done because that’s the way they were always done.

But when you set out to establish a government in a colony, in a new country, and then to establish a federal union you immediately have problems! An uncertain power times a very shifting ideal, “what is the right way to do this?” as a result very definitely. I the American tradition there have been major problems that would not have existed in say European traditions where say things are traditional. But in this country tradition doesn’t have the influence, established ways are not that old. An old house here is a couple hundred maybe, in some rare cases in one of two places in the America’s, more than two hundred years old is very, very old! Extremely old. But in Europe the houses and the buildings can be hundreds of years old -a thousand years old! And no older. The guidelines in other words, are more difficult in a gathered power.

Now the federalist papers constructed first of all a federal government, and second, they were as much concerned with property rights as with political liberties. Freedom for the federal Constitution was not only for persons but also for property. The Marxists are right. The U.S. Constitution is very much concerned with property. There’s no point in us denying that charge we need to affirm it. A Constitution very definitely has a concept of man whereby man is more than his bare person.

The individual in terms of the constitution is not only his person but his family, his possessions, his contracts. It is the sum total of all these associations, obligations, responsibility, possessions, that constitute his life.

However, the men who shaped the constitution recognized that property interests will create factions. As the federalist paper number 10 declared- written by Madison- “Those who hold, and those who are without property of every form distinct interests in society. Those who are predators and those who are debtors fall under a light discrimination, a landed interest of manufacturing interest, a mercantile interest, a monied interest, with many lesser interests grow up of necessity in civilized nations and divide them into different class actuated by different sentiments and views.  

The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operation of the government. That statement by Madison showed awareness of the problem. Because you see the people of the state and their liberties in terms of persons and properties you’re immediately creating divisions or fractions in people the have’s against the have-not’s, the town people against the country people, the manufacturing interests of one kind as against the manufacturing interest of another kind. All kinds of factions are possible as the constitution requires we recognize.

And so the purpose of the constitution was to try to provide a solution, to try to offer checks and balances to prevent the working of these conflicts. But of course conflicts arose from the very beginning. In a world of sinful man and imperfect man, one of the surest things we can expect are problems- conflicts. One of the most dangerous things is to feel that we won’t get them, because when we feel that way we are bound to have trouble.

One of the problems with youth today is precisely this; I was told once by someone (who should know because it’s his business) that his big problem with college graduates is that they are looking for a job with all kinds of good pension benefits, good vacation privileges, where they won’t have to work hard and where there are no problems! And of course, there are no such jobs, and when you take a job in the assurance or the belief that it has no problems- you are in for trouble. Because this is built in! Now the whole purpose of the federalist papers was to point out that problems are a certain thing.

The United States when it is established is going to have problems. They’re going to try to put in certain instruments into the documents to handle those problems, we expect them. But we want them to do the least damage to the country. Well shortly thereafter within a generation there rose in this country a number of deists, Unitarians, transcendentalists, and other groups, all of whom were characterized by a denial of total depravity. The old Calvinistic belief that man is depraved, the old Christian doctrine which while sharing the Calvinistic belief in total depravity believed that man is a sinner was in process of being replaced in a sizable segment of the population with a belief that man is good, man can be trusted.

This was a part of the rise of humanism. With this view also, was an idea that law is a human product only. Now from a Christian perspective we believe that true law comes from God, it is expressed in the Bible. Man’s laws must seek to approximate the law of God. But in humanism law is a human product. As a result when you view human law and human social arrangements as purely human, this is going to change your attitude towards obedience. If I believe that the laws of the state reflect in some form the law of God, and to a degree the will of God, so that the laws with respect to human life reflect God’s law “Thou shalt not Kill” and the laws with respect to property reflect God’s law “Thou shalt not Steal” and traffic laws reflect God’s law because they forbid us to kill somebody or to rob him of his property by damaging it... it’s going to give me a different view of that law.

And if I believe all of this is purely a humanist invention and there is no absolute moral law requiring me not to kill anybody nor to steal from anybody that this simply is a law for the convenience of society to make it easier for men to get the law. And certainly if I have that attitude I will treat traffic laws with contempt. Because there is no necessity then for me to respect your property! And the only thing wrong is then what I cannot get away with. If other words an idea comes in which we can call using the term from American politics “nullification”. Nullification. When you have an idea of law as a human product you can say that we can nullify the laws of the federal union. There is no necessity to obey them, so when they conflict with our interests, or with our state rights, or with what we believe. And so you have doctrine of mollification of federal laws by states. But it doesn’t stop there! We don’t hear very often in the text books about the other side of nullification, because it developed into a very powerful movements in the hands of man like Foro [?] and Lysander Spooner and can anyone tell me what their doctrine was?

[pause]

Lysander Spooner who again is becoming an extremely popular thinker with the radical new left on the campuses and the row. What was their philosophy?

[another pause]

Did someone say something? Anarchism! Alright, so you have nullification of state laws by individuals. Man now takes primacy, man is sovereign. So that you have a conflict of sovereignty. The sovereignty of the federal union, the sovereignty of the states, or the sovereignty of the anarchistic individual. Three separate sovereignty's! And the result when you have three sovereignty's is conflict! You have a multiplicity of gods each of which says “I am independent and I can do as I please”.

Now of course we as Christians must regard these positions as false alternatives to the sovereign God. All of them are humanistic, they represent whether you have this kind or this kind of nullification the sovereignty of man in some form- either as in individual or as a group. And this leads the totalitarianism of man, of the state, or individual. Now John Witherspoon during the continental period had been emphatic in his need for checks and balances and over and over again had emphasized this so that this indeed became a part of our structure because of the kind of teaching you represented.

You will recall when we studied the Constitutional convention we saw how many of the men had been trained by Witherspoon- well this was Witherspoon’s thesis. “Pure democracy cannot subsist law, nor be carried far into the departments of state. It is very subject to caprice and the madness of popular rage. And it appears that every good form of government must be conflicts, so that the one principal may check the other. It is of consequence to have as much virtue among the particular members of a community as possible but it is folly to expect that a state should be upheld by integrity in all who have a share in managing it. They must be so balanced that when everyone draws to his own interest or inclination there may be an overflow on the polls.

In other words John Witherspoon was saying “Don’t expect anyone you expect to be fair and impartial and always just. He’s going to represent himself and whomever he thinks is strongest.” And politicians have had a habit of saying one thing and doing another, and trying to keep a foot in both camps. When Andrew Jackson ran for the presidency the pro-{?} people were sure in view of some statements he made to them that he was on their side in the anti-terror people were sure that he was an anti-terror man and so they both got to work and elected him! As a matter of fact a few years after that, not too long before the Civil War, a man became mayor of Boston as a member of the Know Nothing party, the candidate of the Know Nothing party. Now the Know Nothing party, a very stupid group that for a few years became very powerful in this country and then just as quickly faded, became very strong in Boston because Boston was being flooded with Irish Catholic immigrants.

The Know Nothings were against all these foreigners. They didn’t like the Irish and they didn’t like the Catholics. And so this man ran as the candidate of the Know Nothing party as the enemy of Catholicism and the pope and the enemy of the Irishman. And who was his best friend with whom he would sit down and have a good chat with from time to time? Why, the Irish Catholic bishop of Boston! He made it his business to be friendly with all sides without being in favor of anybody. So know this was over a hundred years ago, considerably over. So this sort of thing is nothing new in American politics, you see. As a matter of fact, on one occasion, a man ran for office and became a leader of the anti-masonic party in this country and secretly joined the Mason’s because he figured when he was in politics it was a good thing to have a hand in both sides.

Now, Witherspoon says “In view of the fact that men are sinners, we must recognize that checks and balances are necessary and even then they are limited in what they can do because men are sinners, and you sinfully hope that the sins of the one will cancel or act as a check to the sins of the others.” Along those lines it’s interesting to note that the public hearings of Watergate, that is the televised hearings, ended when one of the-when the last speaker I believe was Patrick Cannon- and when they asked him flatly if he didn’t know that what they were doing was illegal he answered the good democratic senator who asked him that question and he said: “Senator, we were told that we should not break any law of the country unless there was a precedent and the democrats having done it already and we had it” they didn’t want to hear any more from him you see, and of course what is the kind of thing that Watergate represents? Precisely the kind of thing that Witherspoon was talking about. They’re both sinners up there, they’re both doing it. And they use each other as the villain. They’re ready to see the sins of the others and this is he said “a safeguard”.

Witherspoon says “we need checks and balances because of sin and second we need as much virtue as possible in the people because without the virtue of the people, certainly there would be a drastic decline in the character of the people at large.

This still however leaves problems. Our problems today are precisely because while we have started an answer we haven’t worked out all the problems concerned with that answer. Volunteerism in politics. Now let us turn to another answer in Europe that has become a problem progressively all over the world and is problem to us today. In Europe the tradition has been for a long time since the end of the reformation and the counter reformation and the collapse in Europe as far as any practical influence on the political life of the people in concerned of both Protestantism and Catholicism. Now this collapse took place about the end of the 1 hundreds. By the end of the 16 hundreds, Europe while still nominally Protestant and nominally Catholic no longer was concerned with Godly rule.

It was no longer geared to the fact that we are interested in creating a Protestant state or a Catholic state. We want our version of a Christian state. Now this they had abandoned, they more and more were influenced by the environments and their ideas were reflecting the basic premises of the environment. In my “Institutes of Biblical Law” I call attention to the difference within the Catholic sphere where it came out very dramatically between Philip the 2’nd of Spain and Louis the 14’th of France, a generation apart. When Philip the 2’nd of Spain what was at the center of it? Does anyone recall or know?

[pause]

What was at the center of the palace?

[audience member speaks]

No, that was Louis the 14’th. Yes? That was Louis the 14’th.

[audience member speaks] The chapel?

[Rushdoony] Yes! The chapel. At the heart of Philip’s palace was the chapel. That was the center. The palace was in part a monastery. Why? Because Philip’s idea of sovereignty was Christian, and his idea of government was thoroughly religious! And he felt that he needed the council of men of the cloth and he needed the chapel at the center of his palace so that through worship he could find the kind of guidance he needed to rule.

Now we can disagree with much of what Philip did, and I disagree with nine-tenths of it- I think Philip the 2’nd was very often a very foolish monarch, but the point is that in spite of his blunders and errors in spite of wisdom, his basic principal of rule was Christian. His basic purpose was sound! Whereas Louis the 14’th who was a far more brilliant king and compared to Philip was inept, while not an elite Catholic, actually made his bedroom the center of the palace! This was a real revolution you see in outlook. From the sanctuary, the chapel, at the center to the bedroom at the center. The sovereignty of man. But monarchy disappeared before too long- did that change the picture? Did it make Europe any the less humanistic? No.

The great philosopher, great only because of his influence not because I think he was a great man, because he was very much a scoundrel, who influenced all subsequent thought. Very powerful philosopher of democracy, Jean-Jacques Rousseau. Now Rousseau, incidentally, was an authority on child training and the education of children. And it’s interesting that the modern world regards Rousseau with such an authority as did his day. When I was at the university I had to read Rousseau’s books on education because they were regarded as basic. Rousseau had any number children, he lived with his women without marriage, he couldn’t be bothered with his children, he ordered his mistress to cut them off the founded home... leave them there for the sisters to take care of. It is ironic that he has been regarded as an authority on child education when he couldn’t be bothered even with his own children.

But Rousseau favored democracy, but the kind of democracy he favored is a very unusual kind and we need to understand it because it is basic to the modern doctrine of democracy. There is first of all the people. Then the will of the people is elected, is expressed in the popular will. Now the popular will in manifested as people vote or in one way or another express themselves. But the popular will is not necessarily the true will of the people! The true will of the people is expressed in the general will.

Now what does that mean? Well, supposing we were to ascertain what the popular will of this group is, and you all decided in favor of something of which I disapproved; the I would say “True, this may be the popular will in that this is what you all favor, but I as an elitist person - as a wiser person than any of you- know what you truly need. And if you really knew what was in your heart you would know that I know what is best for you. And therefore really the general will of the people if it were properly expressed is what I say it is.

Now in terms therefore Marxism which has carried this to its logical conclusion, you don’t even ascertain what the popular will is! First of all as the elite group the scientific socialist planners, in the name of the people you declare what the general will is. And then you offer it to the people on a ballot on which they can only vote yes or no and God help them if they vote no when you say this is the general will! And you give them a slate with only one candidate for each office, and if they want to vote no on a measure they have to ask for a special ballot in some cases so that it’s obvious they are counter revolutionary people.

So, while the general will is very obviously the popular will then, if you knew that I was demanding that you confirm me on something when I say it’s the general will and if you didn’t agree you were all going to be carted out to a prison camp, you would certainly agree with things. You would be very hearty in your agreement would you not? Now in terms of this pattern to give back to our original pattern, this is a given kind of democracy. It is a democracy which while it is supposedly in the name of the people is handed down from above.

It does simplify matters, it also represents something which modern education is working for. I think many of you have read my book “The Messianic Character of American Education” and this has been the philosophy of the public schools. They give another name to this idea off the general will... does anyone know what it is? The Democratic consensus. The Democratic consensus, it’s not the democratic majority it’s the Democratic consensus which the elitist in Washington determine is what the people really want and what the educators determine is what is really desired and so on the name of the Democratic consensus you try to eliminate the popular will as much as possible. You try to get rid of the local school corps; in only state I know of, West, the local school board has been abolished because the local school board was, they felt, a dangerous institution in that it not truly appreciate the Democratic consensus.

The people of the state capital knew better than the people locally what was going on. Now, to carry this further, this immediately presented some very serious problems in that with the Democratic consensus the general will and so on seeping into America after the French Revolution, in this country we have had therefore attempts to transform this kind of society into this kind! Or to confuse the two. And the result has been a progressive problem in terms of the inability of Americana's to distinguish between the American system and the European system the confusion of the volunteeristic with the given, the gathered with the given. And the consequence has been that today we have a major problem which developed very early in American history. A confusion as the fundamental character of the American system. There were a number of men who dealt with this problem- we shall on another occasion perhaps tomorrow morning or night see just when it will fit in best. John C. Calhoun who’s thinking in this area was very important and in some respects very much of a problem.

Now obviously we have some serious problems in this country because of this confusion. And it also has deflected from the ability to solve the problems that are inherent in a system that begins with the faith of the people with the volunteeristic principal. Because it is one in which conflict is built in.

Now this is an important point, conflict is recognized and built in to the constitution of the United States. Because realistically it was something they recognized as inescapable. Thus the Constitution never envisions a smooth peaceful, easy situation. It recognized at all times the inevitability of conflict. It tries to deal with that conflict. The only way you can end conflict is to abandon this kind of system and to come to this kind of system, or the Soviet system where you say the conflict doesn’t exist. We have the general will, here. If you do not recognize the general will you go to a labor camp- we cannot have conflict in our society.

But we’ll stop here to deal with any question’s that may be in your mind before we resume our study.

[pause]

Are there any questions?

[audience member speaks] You mentioned there regarding the having a foot in both camps, can a Christian really run for office and ever win an election without a foot in both camps? And if he has a foot in both camps can he be a Christian?

[Rushdoony] Yes, he can run for office on honest, straightforward platform. He’s not going to get very far today! In a few cases in a few districts he will, we certainly do have a handful of very superior men in Washington. But of course the kind of men we have in Washington are a reflection of our character as a people. To a great extent they are better than we deserve because we have become radically humanistic by and large and as a result the character of politics reflects that to varying degrees.

But politics tend to be conservative even when radicals fair, because politics aims at satisfying everybody so that it can never move as quickly as the people do, the politician is usually step behind the people in any direction. A classic story about that is an instant during the French Revolution: this man was sitting in a bar, relaxing, a politician. He jumped up and said: “There goes the mob! I am their leader, I must catch up with them!”. You see, that is politics. You don’t get ahead of the mob because if you’re way out in front you lose them. If you try to find what direction they’re going in and then run and get in front of them when they’ve already made up their mind which way they’re going.

So the restoration of the political order has to be restoration of character, and it also has to be past the restoration of the nature of it. Now I’m glad you raised that question because it once again brings up something we dealt with earlier. Manichaeism. You’ll recall when we dealt with Manichaeism we saw that Manicheans felt that the material world is the evil world it is the world of the Bad God and the spiritual world is the world of the Good God.. and Manichaeism, a pagan religion, infected the Western world and has been an undercurrent often affecting the outlook of Christian.

For many people, politics is a dirty business you see. Period. That’s it- it’s a dirty business! They don’t want to be involved in it. And occasionally you’ll find some who feel that it’s such a dirty business they don’t want to vote! Individuals feel that way, and some church groups such as the Amish. It’s the evil world out there we will have no contact with it. But we are not allowed that luxury by the Bible in that we have an obligation under God to bring every area of life into captivity for Jesus Christ.

Any other questions? Well then we’ll take our five minute break.

[audio cut and then resumed]

We have been analyzing some of the problems that face civil government. As it tries to represent the kind of principal embodied in the American structure. One of the ways to cease some of these problems is to examine the supreme court decisions as they were rendered by John Marshall; one of the greatest chief justices of the United States, some would say very definitely the greatest. John Marshall was a very brilliant man, a man of a superior intellect, and deep conviction. Moreover John Marshall was a very realistic man. He also knew the limitations of the court and of the practical political considerations. We are going to look at a few of the decisions that he gave in order to see something of the problem of the young republic as it wrestled with the power, the authority, the functions, and the limitations of civil government. During his era as chief justice John Marshall wrote five hundred and nineteen of the courts eleven hundred and six decisions.

Let us look first at John Marshall’s opinion in the Marbury verses Madison case.

Now the Marbury v. Madison case was a difficult one, because Marshall knew he was walking a tight rope. Marbury was one of the midnight judges appointed by federalist president John Adams just before his term expired on March 4, 1801. The new president Thomas Jefferson refused to give Marbury his commission. Marbury and three other appointees who had been denied their commissions by Jefferson after having been appointed just before Adams term of office had expired petitioned the Supreme Court for a court order requiring a public official to perform his duties, a writ of mandamus. Now Marshall knew that if he granted the writ the Republicans would disregard it, so it would be useless for him to grant it. It was a forgone conclusion that the republicans had no desire to do it and especially his cousin Thomas Jefferson detested him and would certainly never go along such a writ.

But if he did not grant the writ people would feel that the supreme court was evading its responsibilities, ducking out on an issue avoiding a head on collision. Marshall was really in a bind! Should he make a grand stand play and issue the writ, and render the court into a position of impotence just to make a grand stand play, because he could establish a precedent where presidents could say well so much for the court! And the court would quickly disappear into nothingness, into impotence. On the other hand he could not disregard the plea as presented by Marjory and his associates. Now, how did Marshall handle this?

He declared that it was the secretary of state, Madison’s, duty to deliver the commission to Marjory but that the supreme court had no power to order Madison to do so. Which was the case! He very frankly faced up to the situation. But in the course of it he stated certain principles which now being embodied in a decision underscored certain things with regard to the American system that became progressively important. Now I’d like to read a few of these things: “The government of the united States has been emphatically termed a government of laws and not of man. The powers of the legislature are defined and limited, and those limits may not be mistaken, and that those may not be mistaken or forgotten the constitution is written.

To what purpose are powers limited? And to what purpose is that limit committed to writing? If these limits may at any time be passed by those intended to be restrained? It is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it or that the legislature may alter the constitution by an ordinary act. A legislative act contrary to the constitution is not law. It is emphatically the province and duty of the judicial department to say what the law is. If two laws conflict with each other the court must decide on the operation of each. The judicial power of the United States is extended to cases arising under the constitution.

Now, Marshall was impotent in this case. Practically speaking, what he did was to insist that the Government is a government of laws not of man so whether you’re a federalist or a democratic republican it is the supremacy of law that stands, and the Supreme Court is the interpreter of what the laws mean. So he very definitely made a point here, but even more significantly in one of the most important cases in American history the trustees of Dartmouth vs. Woodward in February 2, 1819. John Marshall issued a decision which is one of the most important for you to know and to understand. Dartmouth College was established during the colonial period, however the college became offensive in 1816 to the New Hampshire republicans because now they had won power in the state and they resented this college right in the midst of their state training up people who had a very contrary view, a very conservative view.

It would be comfortable for example for the state of Virginia, we resent the existence of Fairfax Christian school, Leithburg Christian school, and every other Christian school and therefore we are going to insist that the boards of these schools, and we’ll create a board if there isn’t one, shall have so many people added to them as we name so that we can control these schools. The new law passed by New Hampshire took the control out of the old private board trustees, who were federalists. And it placed the board under the control of the state which was now dominated by the republicans. The old College Board immediately went to court and declared that this violation there chartered was unconstitutional and they sued to have the original charter restored. The charter that had been granted to them by the crown years before.

When the case reached the Supreme Court, John Marshall ruled that the New Hampshire law was unconstitutional, because he ruled that a charter granted to a private corporation whereby it is incorporated is protected by the contract clause of the constitution of the United States. Now not only did he save Dartmouth College by this decision but in a sense this was a Magna Charta for all corporations: business, nonprofit, religious of any kind. It meant now when you secure incorporation from the state that incorporation is a contract and the state has no right to violate that contract. It cannot pass an ex post facto law and wipe you out and violate that charter. This is why businesses immediately had religious groups and every kind of body that had any kind of extended operations to conduct immediately sought incorporation. They recognized that validity of this decision as a charter of freedom.

To be a corporate body today is still an important thing now they’re all kinds of limitations that are regularly passed on corporations. The federal governments and the state governments are afraid of corporation; they realize that there are certain freedoms that constitutionally and in terms of John Marshall’s decision have been granted to corporations.

He said, and it’s a long decision but just a few passages because it is so important: “The American people said in the Constitution of the United States that no state shall pass any bill of attainder, ex post facto laws, or law incurring the obligation of contracts. In the same instrument they have also said that the judicial power shall extend to all cases in law and equity arising under the constitution. On the judges of this court then is imposed, the high and solemn duty of protecting from even legislative violation, those contracts which the constitution of our country has placed beyond legislative control, and however irksome the task may be, this is a duty from which we dare not shirk.” Then commenting on what New Hampshire did, “The will of the state is substituted for the will of the donors in every essential operation of the college.

This is not an immaterial change- the charter of 1769 exists no longer. It is reorganized in such a manner as to convert a literary institution, mold it according to the will of its founders and place under the control of private literary men into a machine entirely subservient of the will of government.

This maybe for the advantage of this college in particular and may be for the advantage of literature in general but it is not according to the will of the donors and is subservient of that contract on the faith of which their property was given. Now with this decision an important fact was established in American history, a constitutional fact. Remember we said the constitution was designed to protect persons and property. Now property was given, when corporate, an additional safeguard in that it has the status of a person. Because a corporation is a legal fiction whereby an organization is created into a legal person.

Now the word corporation, to corporate, comes from corpus. We have that word as corpse also in English. A corpse is a body. Now a corporation therefore is a body which is like a person in the eyes of the law, only it’s a person that does not die unless it voluntarily chooses to vote itself out of existence.

Thus, if we the illustration of a Christian school from a little earlier, what happens? It does not die with the death of the founder, to be then by law broken up in terms of inheritance taxes and heirs. It cannot die, it has a perpetual legal existence as long as it chooses to exist and therefore it is not subject to the inheritance tax. It may be subject to other taxes like a person; a person pays income tax and so corporations pay corporate taxes. But it now had the legal status of a person who does not die. The ancient monarchistic governments represented a kind of corporation. So that when a king died the declaration was, does anyone know how the death of a king was announced? You’ll know it the minute I say it: “the king is dead, long live the king!”

Why? Because technically the monarch was always alive. One figure occupying the office had died, but the prince or successor was to take office as soon and the king was always alive in some sense. Therefore “The king is dead, long live the king.” The monarchy represented a kind of corporation. As a result the sanctity of contracts was affirmed and freedoms for corporations of all kinds- business, educational, and otherwise. This decision is an important one for us to recognize and never to underestimate the importance of corporation in American life. The day may come when corporations will be under severe attack legislatively to try to make it difficult for them to come into existence.

But if it had not been for Marshall’s decision, establishing the security of the corporations we would never have had the tremendous growth of business corporations, educational institutions and the like because now they were protected from the arbitrary seizure of politicians. You would have otherwise had the kind of thing you have in New Hampshire in the Dartmouth case any administration coming into office would immediately take over control by an act of legislature every private institution every business corporation within the state. This was prevented by John Marshall.

Then in 1819 a very, very important decision in Macallan vs. Maryland, March 6’th, 1819. In this case the bank of Maryland or out of the state of Maryland attempted to tax the bank of the United States within its boundaries. Now we shall deal tomorrow with the very important issue in the morning of the bank of the United States and Andrew Jackson. It was an early forerunner of the Federal Reserve it is not something that we as Christian conservatives could have favored, but the fact is, it was federal institution and a federal agency and a branch bank in Maryland was immediately taxed by the state of Maryland. So this went to court immediately because Macalla, the cashier of the Baltimore branch of the United States refused to pay the tax.

Now in the course of his decision in which John Marshall emphatically denied the right of the states to tax anything in the way of federal property or installations in the boundaries of any state he also made a statement of incalculable importance which is something that we still have to reckon with, because in other areas we have still not come up with an answer to it.

John Marshall refused to allow the states to tax something of the federal government that if they could they could wipe out the federal government anytime they saw fit. If you do not like the IRS for example, and you have an IRS office in your state and there are offices in every state to collect taxes, what do you do? Well if you have the right to tax the federal government you take that particular institution and tax it so heavily that it becomes impossible to maintain the office or any office! You could kick every federal office out of the state of Virginia. Might not be a good thing but you could do illegitimately if that power to tax had not been overthrown by John Marshall.

And John Marshall recognized the consequence. “Well Virginia may not like something, here it’s Maryland- they don’t like something, another state doesn’t like something, and all of them are given a veto power on the United States. Whatever they do not like about the federal government they can tax when it comes into their state and wipe it out.” And so he summed up this fact in a very important sentence: “The power to tax involves the power to destroy.” The power to tax involves the power to destroy. Now again you see this is a tremendous insight but it leaves immediately some questions in your mind.

Is it then a legitimate power of the federal government and of the state government to destroy me, and MY property? They have the right to tax my property and yours. They have the right in terms of the existing order of things to tax this school! The power to tax involves the power to destroy and as I said earlier, well, last week: in Britain this power was used to wipe out all great mistakes after World War II. Just pass a tax which will be about an 120 or up to 140-45% of a man’s income and what happens? Well he cannot pay you all of his income he has nothing to eat on. But if he has to pay that much of his income, that high a percentage, he’s not only going to take let us say 40% to 80% of his income but he’s going to have to take many of his assets, his lands, his properties, to pay you off!

The power to tax definitely involves the power to destroy and in one country after another it has been used that way, to destroy! So now as we’re dealing with the problems of government, here was a tremendous fact which Marshall very early saw. But which the constitution and the state government have not dealt with. So we can well recognize and readily recognize that one of the great problems that faces us and the generation or so ahead is: how shall we deal with the problem of taxation? Because taxes tend to grow in one form or another.

And today we have taxes in various forms, because first of all there is the tax which we pay directly, second, the federal government raises money through bonds and debts and funds the government that way and we pay for that not in a direct tax but indirect taxes we pay, and then the third tax is by paper money which is inflation. So that you’re being taxed continually!

Now with this kind of tax you probably have lost about 10% of your income this year as against last year. So if you’ve made just as much this year as last year as you’re, you can tell anytime you go the grocery store or any kind of market or buy gas, you’ve lost 10% of your purchasing power.

And whatever you have in the savings bank is 10% less approximately, you’ve lost that too in purchasing power. That’s the power to destroy. And various governments all over the world their taxes only go up! In one of my books I’ve cited Italy where if they ever collected all the taxes, and good thing for the Italians they’re very inefficient, the taxes now equal 110% of everybody’s income! It’s only because the government is too ineffectual to collect all the taxes that they can go on and put money in the bank and save it.

But you’re property taxes are not going down, I’m sure, nor are your income taxes; your social security taxes have taken a big jump. It does involve the power to destroy. And this is a problem that no government in the world yet has been able to deal with it is a problem that the American system has not faced up to, but it’s going to because the day of reckoning is not too far ahead. Of course in my biblical law I deal with the answer that God has provided the answer to the problem of taxation so that it does not become the power to destroy.

But at least Marshall recognized this, and did a great deal to state the issue, at least, that we face. Perhaps before we go on since this issue of taxation is so important does anyone have a question about it because it is one of the most important aspects of the constitution and American history and yet it is the unanswered one today, only dealt with it in one area. Yes?

[audience member speaks] What would the answer have to do with a percentage of your pay--- {unintelligible} tax --- {unintelligible}...

[Rushdoony] Yes. Well, in biblical law I deal with that.

[audio is abruptly cut off]