The Founders

Abel Upshur Knew The Constitution Was Imperfect And Would Lead To Consolidation

todayJanuary 21, 2014

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Get your republican coffee mug & travel mug at Mike's Founders Tradin' PostMandeville, LA – Exclusive Transcript – If you’re going to be a republican and you’re going to espouse and profess to promote and to pledge your life, your fortune and your sacred honor in protecting republican principles, then you are going to have to do it — there’s no option here, to be honest and to be successful in this and truthful, all at the same time — you’re going to have to do that with the admission that the U.S. Constitution is not a perfect document.  Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

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Mike:  If you’re going to be a republican and you’re going to espouse and profess to promote and to pledge your life, your fortune and your sacred honor in protecting republican principles, then you are going to have to do it — there’s no option here, to be honest and to be successful in this and truthful, all at the same time — you’re going to have to do that with the admission that the U.S. Constitution is not a perfect document.  In 1840, after Supreme Court Justice Joseph Story had written this awful series of books called Commentaries on the Constitution of the United States — this is just like reading mythology.  It’s like reading fiction, Story’s work.  By the way, Lincoln and others would…

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By the way, Lincoln and others would use Story’s work as definitive.  Men like Upshur saw Story’s work and were just aghast.  Upshur read it and didn’t have words to describe his irritation because what he was reading was fiction.

So, being a patriot and being a republican and being a man of letters who always pursued the truth, Judge Upshur wrote a response.  I’m going to read you two paragraphs from one of the responses.  This is posted in today’s Pile of Prep, by the way.  If you’re a Founders Pass member and you support our work on the website at, you get all kinds of goodies.  In the Prep Better section today is the link to this essay, and there are more where this came from.  I just want to share this with you, then we’ll get to the Free Phone Friday telephones.


The principle that ours is a consolidated government of all the people of the United States, and not a confederation of sovereign states, must necessarily render it little less than omnipotent. That principle, carried out to its legitimate results, will assuredly render the federal government the strongest in the world.

[end reading]

Mike:  This was written in 1840.  Upshur predicted everything that we talked about in the first hour of the program, and all this week and this year and last year and the year before.  It was all predicted by men far wiser, far more humble, and far more focused than we are.  You just heard him predict that if this consolidated government with this landmass ever becomes a reality, it will become the most powerful government on Earth. Okay, mission accomplished, Judge.  Take one quarter turn in your grave.  I continue:


The powers of such a government are supposed to reside in a majority of the people; and, as its responsibility is only to the people, that majority may make it whatever they please. To whom is that majority itself responsible? Upon the theory that it possesses all the powers of the government, there is nothing to check, nothing to control it. In a population strictly homogeneous in interests, character and pursuits, there is no danger in this principle. We adopt it in all our state governments, and in them it is the true principle; because the majority can pass no law which will not affect themselves, in mode and degree, precisely as it affects others. But in a country so extensive as the United States, with great differences of character, interests and pursuits, and with these differences, too, marked by geographical lines, a fair opportunity is afforded for the exercise of an oppressive tyranny, by the majority over the minority. Large masses of mankind are not apt to be swayed, except by interest alone; and wherever that interest is distinct and clear, it presents a motive of action too strong to be controlled. Let it be supposed that a certain number of states, containing a majority of the people of all the states, should find it in their interest to pass laws oppressive to the minority, and violating their rights as secured by the Constitution. What redress is there, upon the principles of Judge Story? Is it to be found in the federal tribunals? They are themselves a part of the oppressing government, and are, therefore, not impartial judges of the powers of that government.

[end reading]

Mike:  My goodness!  This is in 1840!  The man is predicting the judicial tyranny that we live under and the reason why the Supreme Court cannot have the final say.  They can’t because they cannot be the sole arbiter of the extent of the monster’s powers.  That is the lesson.  Because they are, we are beset to the tyranny that we live under, and it’s not going to change until you wipe from your consciousness the idea of the perfect constitution.  That document has allowed this to happen.  [mocking] “Yeah, Mike, but people didn’t . . .,” oh, stuff it!  Save it for someone that wants to listen to it.  Let’s listen to some more Judge Upshur.  I think he’s a lot smarter than I am and a lot smarter than the other self-appointed experts out there these days.


Is it to be found in the virtue and intelligence of the people? This is the author’s great reliance. He acknowledges that the system, as he understands it, is liable to great abuses; but he supposes that the virtue and intelligence of the people will, under all circumstances, prove a sufficient corrective. Of what people? Of that very majority who have committed the injustice complained of, and who, according to the author’s theory, are the sole judges whether they have power to do it or not, and whether it be injustice or not. Under such a system as this, it is a cruel mockery to talk of the rights of the minority.  If they possess rights, they have no means to vindicate them. The majority alone possess the government; they alone measure its powers, and wield them without control or responsibility. This is despotism of the worst sort, in a system like ours. More tolerable, by far, is the despotism of one man, than that of a party, ruling without control, consulting its own interests, and justifying its excesses under the name of republican liberty. Free government, so far as its protecting power is concerned, is made for minorities alone. [Mike: Folks, read this for your own eyes and weep at what has transpired and what was predicted.]

But the system of Judge Story, while it invites the majority to tyrannize over the minority, and gives the minority no redress, is not safe even or that majority itself. It is a system unbalanced, unchecked, without any definite rules to prevent it from running into abuse, and becoming a victim to its own excesses. The separation and complete independence of the several departments of the government is usually supposed to afford a sufficient security against an undue enlargement of the powers of any one of them. This is said to be the only real discovery in politics, which can be claimed by modern times; and it is generally considered a very great discovery, and, perhaps, the only contrivance by which public liberty can be preserved. The idea is wholly illusory. It is true, that public liberty could scarcely exist without such separation, and, for that reason, it was wisely adopted in our systems.  But we should not rely on it, with too implicit a confidence, as affording, in itself, any adequate barrier against the encroachments of power, or any adequate security for the rights and liberties of the people.

I have little faith in these balances of government; because there is neither knowledge nor wisdom enough in man to render them accurate and permanent. In spite of every precaution against it, some one department will acquire an undue preponderance over the rest. The first excesses are apt to be committed by the legislature; and, in a consolidated government, such as the author supposes ours to be, there is a peculiar proneness to this.  In all free governments, the democratic principle is continually extending itself. The people being possessed of all power, and feeling that they are subject to no authority except their own, learn, in the end, to consider the very restraints which they have voluntarily imposed upon themselves, in their constitution of government, as the mere creatures of their own will, which their own will may at any time destroy. Hence the legislature, the immediate representatives of the popular will, naturally assume upon themselves every power which is necessary to carry that will into effect.[/private]

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This is not liberty. True political liberty demands many and severe restraints; it requires protection against itself, and is no longer safe, when it refuses to submit to its own self-imposed discipline. But whatever power the legislature may assume, they seldom retain it long. They win it, not for themselves, but for the executive. All experience proves that this is a usual result, in every form of free government. In every age of the world, the few have found means to steal power from the many. But in our government, if it be indeed a consolidated one, such a result is absolutely inevitable.

The powers which are expressly lodged in the executive, and the still greater powers which are assumed, because the Constitution does not expressly deny them, a patronage which has no limit, and acknowledges no responsibility, all these are quite enough to bring the legislature to the feet of the executive.

[end reading]

Mike:  That’s from Abel Upshur in 1840. You can read the entire essay here and keep you eyers open for the Founding Father Films Publishing edition of Upshur’s 3 pamphlets written in response to Story.

End Mike Church Show Transcript

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