And yet, in the same opinion—only two and three pages preceding this extract—he declares emphatically that “the right” of government—or of what he calls “society”—“to prohibit such contracts as may be deemed mischievous, is unquestionable.”—p. 347.
And as an illustration of the exercise of this right of “society” to prohibit such contracts “as may be deemed mischievous,” he cites the usury laws, thus:
The acts against usury declare the contract to be void in the beginning. They deny that the instrument ever became a contract. They deny it all original obligation; and cannot impair that which never came into existence.—p. 348.
All this is as much as to say that, when a man has voluntarily “come into society,” and has “surrendered” to society “his original and natural right of coercing” the fulfilment of his contracts, and when he has done this in the confidence that society will fulfil its pledge to “give him a more safe and more certain coercion” than he was capable of himself, “society” may then turn around to him, and say:
We acknowledge that you have a natural right to make your own contracts. We acknowledge that your contracts have “an intrinsic obligation.” We acknowledge that you had “an original and natural right” to coerce the fulfilment of them. We acknowledge that it was solely in consideration of our pledge to you, that we would give you a more safe and more certain coercion than you were capable of yourself, that you “surrendered” to us your right to coerce a fulfilment of them. And we acknowledge that, according to our pledge, you have now a right to require of us that we coerce a fulfilment of them. But after you had “surrendered” to us your own right of coercion, we took a different view of the pledge we had given you; and concluded that it would be “mischievous” to allow you to make such contracts. We therefore “prohibited” your making them. And having prohibited the making of them, we cannot now admit that they have any “obligation.” We must therefore decline to enforce the fulfilment of them. And we warn you that, if you attempt to enforce them, by virtue of your own “original and natural right of coercion,” we shall be obliged to consider your act a breach of “the general peace,” and punish you accordingly. We are sorry that you have lost your property, but “society” must judge as to what contracts are, and what are not, “mischievous.” We can therefore give you no redress. Nor can we suffer you to enforce your own rights, or redress your own wrongs.
Such is Marshall’s theory of the way in which “society” got possession of all men’s “original and natural right” to make their own contracts, and enforce the fulfilment of them; and of the way in which “society” now justifies itself in prohibiting all contracts, though “intrinsically obligatory,” which it may choose to consider “mischievous.” And he asserts that, in this way, “society” has acquired “an unquestionable right” to cheat men out of all their “original and natural right” to make their own contracts, and enforce the fulfilment of them.
A man’s “original and natural right” to make all contracts that are “intrinsically obligatory,” and to coerce the fulfilment of them, is one of the most valuable and indispensable of all human possessions. But Marshall assumes that a man may “surrender” this right to “society,” under a pledge from “society,” that it will secure to him “a more safe and certain” fulfilment of his contracts, than he is capable of himself; and that “society,” having thus obtained from him this “surrender,” may then turn around to him, and not only refuse to fulfil its pledge to him, but may also prohibit his own exercise of his own “original and natural right,” which he has “surrendered” to “society!”
This is as much as to say that, if A can but induce B to intrust his (B’s) property with him (A), for safekeeping, under a pledge that he (A) will keep it more safely and certainly than B can do it himself, A thereby acquires an “unquestionable right” to keep the property forever, and let B whistle for it!
This is the kind of assumption on which Marshall based all his ideas of the constitutional law of this country; that constitutional law, which he was so famous for expounding. It is the kind of assumption, by which he expounded the people out of all their “original and natural rights.”
He had just as much right to assume, and practically did assume, that the people had voluntarily “come into society,” and had voluntarily “surrendered” to their governments all their other natural rights, as well as their “original and natural right” to make and enforce their own contracts.
He virtually said to all the people of this country:
You have voluntarily “come into society,” and have voluntarily “surrendered” to your governments all your natural rights, of every name and nature whatsoever, for safe keeping; and now that these governments have, by your own consent, got possession of all your natural rights, they have an “unquestionable right” to withhold them from you forever.
If it were not melancholy to see mankind thus cheated, robbed, enslaved, and murdered, on the authority of such naked impostures as these, it would be, to the last degree, ludicrous, to see a man like Marshall—reputed to be one of the first intellects the country has ever had—solemnly expounding the “constitutional powers,” as he called them, by which the general and State governments were authorized to rob the people of all their natural rights as human beings.
And yet this same Marshall has done more than any other one man—certainly more than any other man within the last eighty-five years—to make our governments, State and national, what they are. He has, for more than sixty years, been esteemed an oracle, not only by his associates and successors on the bench of the Supreme Court of the United States, but by all the other judges, State and national, by all the ignorant, as well as knavish, lawmakers in the country, and by all the sixty to a hundred thousand lawyers, upon whom the people have been, and are, obliged to depend for the security of their rights.
This system of false definitions, false assumptions, and fraud and usurpation generally, runs through all the operations of our governments, State and national. There is nothing genuine, nothing real, nothing true, nothing honest, to be found in any of them. They all proceed upon the principle, that governments have all power, and the people no rights.
Section XXV.
But perhaps the most absolute proof that our national lawmakers and judges are as regardless of all constitutional, as they are of all natural, law, and that their statutes and decisions are as destitute of all constitutional, as they are of all natural, authority, is to be found in the fact that these lawmakers and judges have trampled upon, and utterly ignored, certain amendments to the constitution, which had been adopted, and (constitutionally speaking) become authoritative, as early as 1791; only two years after the government went into operation.
If these amendments had been obeyed, they would have compelled all congresses and courts to understand that, if the government had any constitutional powers at all, they were simply powers to protect men’s natural rights, and not to destroy any of them.
These amendments have actually forbidden any lawmaking whatever in violation of men’s natural rights. And this is equivalent to a prohibition of any lawmaking at all. And if lawmakers and courts had been as desirous of preserving men’s natural rights, as they have been of violating them, they would long ago have found out that, since these amendments, the constitution authorized no lawmaking at all.
These amendments were ten in number. They were recommended by the first congress, at its first session, in 1789; two-thirds of both houses concurring. And in 1791, they had been ratified by all the States: and from that time they imposed the restrictions mentioned upon all the powers of congress.
These amendments were proposed, by the first congress, for the reason that, although the constitution, as originally framed, had been adopted, its adoption had been procured only with great difficulty, and in spite of great objections.