Your Monthly Constitutional

YOUR MONTHLY CONSTITUTIONAL By: Stewart Harris

Lincoln Memorial University Duncan School of Law

WHAT WOULD GEORGE DO?

Presidents often look to their predecessors for inspiration. Well, some of their predecessors. I imagine that few modern presidents have modeled themselves after James Buchanan or Franklin Pierce. But Lincoln? Sure. One of the Roosevelts? Absolutely. And George Washington? Well, duh.

So let’s look to George as we consider a current issue: increasingly militant resistance to federal COVID mandates. George faced a similar situation in the early 1790s. It eventually turned into something called the Whiskey Rebellion—you know, that thing that you studied for five minutes or so in high school? It involved . . . whiskey, right? Indeed it did. But the constitutional issues it presented, and resolved, were quite sobering.1

Quick recap. When George Washington took his first presidential oath, our young nation was broke. No, worse than that. We were bankrupt. We had borrowed heavily to finance our experiment in selfgovernment, and we had neither the means nor the political will to pay our debts.

Enter today’s favorite Founder, Alexander Hamilton.2 He was both a brilliant lawyer and a financial wizard. Appointed by Washington to be our first Treasury Secretary, Hamilton convinced Congress to take the extraordinary and counterintuitive step of assuming responsibility for all war debts that had been incurred by the states. He then convinced that august body to enact an excise tax to retire those debts. He thus accomplished two of his most cherished goals: 1) restoring American credit; and 2) centralizing power in the national government. Money is, after all, another word for power.

The new national excise tax covered all distilled spirits, but it was commonly called the “whiskey tax.” It was controversial for several reasons. First, all new taxes are controversial.

Second, it was a so-called “internal” tax, that is, a tax on domestic economic activity, as opposed to long-established “external” taxes such as duties paid on imported goods. While duties were easily collected at seaports, the whiskey tax required an army of tax collectors who, in the opinion of opponents, oppressed American citizens in their own homes with incessant demands for payment.

Third, the tax placed a disproportionate burden on small producers, such as farmers who used their own crops to distill spirits. Farmers lacked both economies of scale and the ability to keep accurate production records.

Finally, the hardest-hit farmers were mostly from the western frontier, which, at that time, was Appalachia. Frontier folk had almost no “hard” money, such as negotiable bank notes or gold coins, so whiskey was a common medium of exchange. It was also an export product that was much easier to ship to eastern markets than grain and other agricultural produce. To make matters worse, alleged tax cheats had to travel all the way to Philadelphia to stand trial, an arduous and expensive journey that Appalachian subsistence farmers could ill afford.

Whiskey tax resistance was common throughout Appalachia. But it became particularly violent in western Pennsylvania, where tax collectors, and even local distillers who did nothing more than comply with the law, were attacked, tarred-and-feathered, and occasionally had their barns burned. At a place called Bower Hill, more than 500 militiamen fired on a tax collector and federal troops, causing several deaths. Resisters fancied themselves the inheritors of the spirit of the American Revolution. They erected liberty poles and decried what they considered taxation without representation.

But, of course, it wasn’t. Western Pennsylvanians had a representative in Congress, William Findlay, who argued their positions, with some success. They also had two U.S. Senators from Pennsylvania to represent them.

Opponents also argued that Congress had no power to lay “internal” taxes; such a power resided exclusively in the state governments. That was also incorrect. Article I, Section 8 of the United States Constitution is clear:

[t]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.3

Into this morass stepped George Washington, the first president to swear that he would “take Care that the Laws be faithfully executed.”4 George took his oath seriously. In August of 1792, as lawlessness spread throughout western Pennsylvania, he issued a proclamation: [I]t is in my judgment necessary under the circumstances of the case to take measures for calling forth the militia in order to suppress the combinations aforesaid, and to cause the laws to be duly executed; and I have accordingly determined so to do, feeling the deepest regret for the occasion, but withal the most solemn conviction that the essential interests of the Union demand it, that the very existence of government and the fundamental principles of social order are materially involved in the issue . . .5

George then assembled an army of close to 13,000 men. He mounted his horse and marched westward. The insurrectionist leaders fled. Ultimately, only a few low-level offenders were tried for treason, and only two were convicted. They were sentenced to death. Washington pardoned them. He had made his point. The Whiskey Rebellion was over.

So, WWGD (What Would George Do) if confronted today by refusal to obey federal laws mandating COVID vaccinations, especially if that refusal were accompanied by violence? He’d take care that the laws were faithfully executed. Joe Biden will doubtless do the same, although I doubt that he’ll do it on horseback.

1 For a comprehensive treatment of this often-overlooked chapter in our constitutional history, I recommend Thomas P. Slaughter’s excellent book, The

Whiskey Rebellion: Frontier Epilogue to the American Revolution. 2 Known during his hip-hop days as A. Ham Daddy. Okay, not really. 3 U.S. Const., Art. I, § 8. 4 U.S. Const., Art II, § 3. 5 By the president of the United States of America, A PROCLAMATION, August 11, 1794, available at: https://avalon.law.yale.edu/18th_century/gwproc03.asp

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.