One of
the oldest, and probably the most persistent controversies in American history
is the issue of State’s rights versus central power. As early as the Revolution conducted under the
ad-hoc assembly called the Continental Congress jealousies over local verses
central power loomed large. Each of the
thirteen former colonies, now States, considered itself sovereign, but they
recognized the value of alliance as shown by the fact that each had sent
delegates to the Congress in an attempt to present a united front against
British tyranny. Never-the-less, the
attitude in revolutionary America was that local government was better
government; there was no enthusiasm for replacing a tyrannical government in
London with a tyrannical government in Philadelphia or anywhere else. The
Continental Congress set about formalizing the alliance of the new States under
the Articles of Confederation, but the lack of authority vested in Congress to
raise taxes under that compact resulted in the horrible depravation suffered by
the Continental Army, and put the Revolution seriously at risk. George Washington and Alexander Hamilton
witnessed this result of central power anemia and became advocates of a
stronger federal government.
So following
the Revolution and the adoption of a new Constitution, the young United States
developed political parties largely defined by the issue of central power
verses State’s rights, with Hamilton and Adams leading the centric “Federalists”
while Jefferson and Madison lead the “Jeffersonian Republicans” who favored
State’s rights and very limited power for the central government. Washington never acknowledged allegiance to
any faction and honestly tried to hold himself above party politics, but his
policies as President were decidedly Federalist in nature, giving Hamilton, his
Secretary of the Treasury, far too much influence. But in reality, though each faction greatly
feared the intentions of the other and the vitriol from both sides was often slanderous
and vicious, their philosophical differences were mild compared to those of
today. Even Hamilton, the greatest
advocate of federal power among the Founders, could not have envisioned a
leviathan government such as currently resides in Washington D.C.
We can
gather a pretty accurate notion of what kind of government structure the
Founders advocated by looking at the kind of government structure they created;
they were, after all, given the opportunity to write history on a clean slate. If we zoom in on the 1830s we get a pretty
good picture of that structure after each faction had a chance to have
influence, after three Federalist administrations and three Jeffersonian
Republican administrations, and during the administration of Andrew Jackson, the
first President to be called a Democrat.
Fortunately we have a very good source of information about the structure
of government at that time written by a presumably unbiased outside observer, a
Frenchman named Alexi de Tocqueville who made an extended visit to the United
States in 1831 taking copious notes, and specifically wrote about the
government and social structure of the United States in his famous book
“Democracy in America”1 published in France in two volumes in 1835
and 1840.
Tocqueville expended gallons of ink describing
government at the township level and some at the county level, but each time he
refers to “national government” an editor’s footnote reminds the reader that by
“national” Tocqueville means the State government of Massachusetts or Delaware
or whatever State is being discussed, not the government in Washington D.C.; in
nearly 700 pages he barely mentions the Federal Government. In a footnote of his own Tocqueville makes
this comment: “But the Federal government
is scarcely occupied with any but external affairs; it is the state governments
that really direct American society.”
This is a marvelous insight into the Constitutional division of powers
as understood and practiced by early Americans, and as intended by our Founders,
with relatively slight differences between the Federalists and the Jeffersonians. State and local governments handled internal issues
while the Federal government dealt with external issues such as foreign
affairs. At that time the term “state”
was meant in its classical sense, synonymous with “nation”; the United States was
little more than a massive alliance of sovereign states similar to today’s
European Union.
And then
came the Civil War and huge changes in America’s political atmosphere.
The argument was made at the
time, and has been made ever since, that the same philosophical justifications
for the separation of the American Colonies from Great Britain as expounded by
John Locke in his 1689 treatises on government, and as stated in The
Declaration of Independence in 1776, could be used to justify the separation of
the southern States from the Union in 1861. The weakness of this argument
becomes apparent when one observes in that revered Declaration the huge
percentage of it that was dedicated to showing that the new United States of
America held the moral high ground relative to Great Britain. The South could claim no such moral high
ground; the obvious and documented primary reason for separation was to ensure
the continuation of slavery which no moral argument can possibly justify. Yes, the non slave holding citizens of the
south were filled with patriotic zeal based on love of country (i.e. their
respective States), but to understand the motives of the slave holding decision
makers in the South we can turn to the Constitution of the Confederate States
of America. It was more or less a
duplicate of the U.S. Constitution except for slight differences in structure
and a few added lines; those added lines prove the real motive for rebellion,
and that no moral high ground existed in the hearts of southern aristocracy in
1861:
In
Article I Section 9(4): [No] law denying
or impairing the right of property in negro slaves shall be passed.
In
Article IV Section 3(3): [The citizens of
each State] shall have the right of transit and sojourn in any State of this
Confederacy, with their slaves and other property; and the right of property in
said slaves shall not be thereby impaired.
Article
IV Section 2(1): [The Confederate States
may acquire new territory;] In all such territory, the institution of negro
slavery as it now exists in the Confederate States, shall be recognized and
protected by Congress, and by the territorial government: and the inhabitants
of the several Confederate States and Territories, shall have the right to take
to such territory any slaves lawfully held by them in any of the states or
territories of the Confederate states.
In
their respective revolts Thomas Jefferson could claim moral high ground for the
newly formed United States relative to Great Britain; Jefferson Davis could make
no similar claim for the Confederate States of America. While the Founding and
Framing generations were unable to agree on abolishing the institution of
slavery in the new United States, they certainly did not leave the British
Empire specifically to preserve it. In
fact, in his original draft of the Declaration of Independence, Jefferson
listed the King’s refusal to allow abolishment of slave importation as one of
the Colonies’ grievances against the crown.2 Southern delegates to
the Continental Congress who were the spiritual, if not the literal,
grandfathers of the authors of the Confederate constitution insisted that the
passage be deleted.
Having
morality on ones side does not ensure victory in war, but lack of it can be a
negative factor. One of the great hopes
of the Confederacy was that Great Britain would come into the war on the side
of the South much the way the French had come to the aid of America in the
Revolution. They had reason to be hopeful, England would have enjoyed revenge
for the loss of prestige caused by The Revolution and the War of 1812, and
there were also economic incentives for British involvement; the textile
industry in England made that country a natural ally for the cotton producing South
and the federal blockade of southern ports hurt the British economy, but Great
Britain had abolished slavery in 1833 and was put off by the true motives of
the Confederacy.3 Further,
the North might have been more open to a negotiated peace if the result were
anything but the continuation of an institution that was repugnant to President
Lincoln and many in Congress. And more northerners would have had sympathy for
the South’s protests that the southern States had the Natural Right to leave
the Union if such philosophical arguments didn’t lack credibility given that
the primary purpose of leaving was to continue depriving the most basic of
Natural Rights to millions of people. And
not only the southern States paid the price; the lack of moral standing of that
portion of the Republic that first put to a test the theoretical concept of State
sovereignty damaged that concept for all time, and for all of the States.
An
indicator of that damage is that references to The United States became
singular rather than plural. Documents
were clearly of plural construal up to and including the Thirteenth Amendment
written at the end of the war. It reads
in part, "Neither slavery nor
involuntary servitude, except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United States, or any place
subject to their jurisdiction." (Underline mine – note the use
of the plural adjective “their”)
Following the Civil War the habit of referring to the United States in
the plural slowly fell away; during the Mexican-American war in 1847 someone
might have said, “The United States are
at war.” By the time of the
Spanish-American war the statement would have been, “The United States is at war.”
But
while the United States is indeed “one nation, indivisible” that does not have
to mean that the United States is a homogenous monolith of laws, mores, religion,
and attitudes; it does not have to mean that the States have lost all of the
rights and privileges granted them by the Constitution, most importantly by the
Tenth Amendment which states, “The powers
not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.” But the sentiment and intent of this
Amendment has been diluted over time by Supreme Court interpretation of the
Fourteenth Amendment, with both positive and negative consequences including devastating
effects on State’s rights.
The
thirteenth, fourteenth, and fifteenth Amendments were ratified during Reconstruction,
the time period following the Civil War. The thirteenth is a
short statement that simply outlaws slavery and gives Congress the authority to
back it up with law; the fifteenth is similarly straightforward and gives black
men the right to vote. The fourteenth on
the other hand is overly complex because it tries to accomplish multiple goals
in one Amendment. As a result it is vague at places and subject to
interpretation. We are concerned here only
with Section 1: “All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws” Obviously
the intent of this section is to remove all doubt about the citizenship of the
emancipated slaves and to force States to apply law equally to all citizens,
white and black. It has been interpreted to mean much more than that.
A
series of Supreme Court decisions beginning many years after ratification of
the Fourteenth Amendment referenced Section 1 to apply, one by one, all of the governmental
restrictions mentioned in the Bill of Rights to State and local governments as
well as the Federal government 4.
Because of these decisions and subsequent court actions, State and local
government entities can no longer restrict gun ownership; they can no longer abridge
freedom of the press or free speech; the 10 Commandments can no longer be
displayed at the County Courthouse, and typically it is not the State authorities
or courts that police these activities; it’s the federal government’s
Department of Justice. This was not the
original intent of those first ten Amendments, nor was it the practice for well
over a hundred years following their ratification. Of course many of these restrictions on
government existed in the State constitutions, but now the States have no
choice; and the result, legally speaking, is a largely homogenous nation
controlled by laws made primarily in Washington D.C. with ever diminishing
local control. The debate about the true intent of the Fourteenth Amendment
continues, but for six decades the courts ruled that what Section 1 of the
Fourteenth Amendment really says is that States must apply their laws equally
to all citizens of the State, not that all laws of all States must be
homogenous and in compliant with the Bill of Rights that was originally intended
to limit only the powers of the Federal government.
And
again, the States to a large degree suffered this additional loss of their
autonomy by too many of them abusing it. One great advantage of a multi-tiered
government structure is that when one level of government fails to protect the
rights of its citizens, the citizens have recourse to another level. When State
governments trampled on the Natural Rights of citizens, those citizens cannot
be faulted for appealing to the federal government. Specifically, when State and local
authorities pass laws specifically designed to deprive black citizens of their
rights, or ignore violations of law when directed at black citizens or others,
then it is the unfortunate duty of the federal government to protect the rights
of those who are citizens not only of that State, but also of the United States.
But we do not want to lose forever the advantages of a multi-tiered structure
of government in the United States by making the State governments impotent and
the federal government omnipotent any more than we want the reverse. Even
though federalism was abused by some of the States, it is a valid form of
government – probably the best ever devised – and it should always be
remembered that the federal government is not inherently less corrupt or
despotic than State governments.
Governments
by their nature tend to acquire power at every opportunity and never relinquish
it willingly. As the federal government
gained power at the expense of the States politicians in Washington found ways
to gain even more. Every war, every
crisis, every emergency, every excuse for centralizing power in Washington has
been and is being exploited, and power is seldom given up when the emergency
passes. And when such opportunities as a World War or Great Depression are
scarce Washington turns to bribery.
Money is taken from American citizens and doled back to the States and
municipalities for highways, for schools, and for infrastructure of all kinds;
and always with federal strings attached.
And the recipients get in line to sell their political souls.
There
was a time in the United States when States competed for population because
more people meant greater representation in Congress, more tax revenue, more
opportunity for commerce, and higher property values. States passed laws with the
intention of attracting and retaining citizens; this was truly government by
and for the people. As an example, this
is how suffrage had become as universal as it was in the time that Alexi de
Tocqueville visited; new States west of the Appalachians passed relatively
liberal suffrage laws to encourage immigration from the eastern States. The
eastern States were forced to expand suffrage in order to compete. The United
States is a big country and the people of different regions do not necessarily share
the same backgrounds, customs, and values.
Diversity of people should dictate some diversity of laws so people
could choose to live in a State with laws that suited them. This is the reason the Founders thought local
government was better government. Imagine
if the Second Amendment prevented only the Federal government from interfering
in gun ownership; a person could decide to live in New York where guns were
outlawed, or alternately in Maine where the right to bear arms might be
protected by the State constitution. The
States could be the legal and social laboratories they once were, where
political ideas could be tested and where interference from the central
government was minimized as per the Tenth Amendment. This system created the greatest, wealthiest,
and most free nation in history for most of its citizens, and while it’s true
that abuse by some of the States toward some citizens is the reason this system
was lost, for many American citizens the current system of ever expanding
central power is also abusive, and the potential for abuse is extreme as more
and more power concentrates in Washington D.C.
Today,
to name a few specific examples of central government abuse of power, we have
an IRS that uses its leviathan power to punish political enemies and manipulate
the political landscape, an out of control EPA that seems to operate without
oversight, an omnipotent Department of Homeland Security, a Justice Department
that picks and chooses which laws to enforce and meddles in State and local
issues without cause; and none of these entities seem to have the least respect
for the rights of citizens who are supposed to be in control of their
government. More than at any time in our
history, Americans in general have less to fear from their State and local governments
and more to fear from Washington. The multi-level, federal system provided for
in our Constitution need not be lost forever; the abuses of the past do not
render that system inherently faulty, and the abuses of the present are much
more the result of the ascension of central power.
1 It becomes clear in the reading that in using the
word “Democracy” in the title of his work, Tocqueville was not referring to a
form of government, but rather to a structure of society - one that provides
equal opportunity to its citizens as opposed to the hereditary aristocracy
familiar to his French audience. None among our Founders advocated democracy as
a form of government.
2 “[The King] has waged cruel war against human
nature itself, violating its most sacred rights of life & liberty in the
persons of a distant people who never offended him, captivating & carrying
them into slavery in another hemisphere, or to incur miserable death in their
transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of
Great Britain. determined to keep open a market where MEN should be bought
& sold, he has prostituted his negative [his veto] for suppressing every
legislative attempt to prohibit or to restrain this execrable commerce: and
that this assemblage of horrors might want no fact of distinguished die, he is
now exciting those very people to rise in arms among us, and to purchase that
liberty of which he has deprived them, & murdering the people upon whom he
also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to
commit against the lives of another.”
3 http://en.wikipedia.org/wiki/United_Kingdom_and_the_American_Civil_War#Slavery
