by Clarence B. Carson, The Freeman
Originally published in January, 1983
Several developments have contributed to making the meaning of federalism obscure. Some are old, some recent. Some may be more or less innocent; others are destructive of federalism itself. One of these that may be more or less innocent is the habit of referring to the United States government as the “federal government.†Whether it is innocent or not, it does tend to confuse the unwary. These United States have a federal system of government. The system embraces both the general government and those of the states. Thus, both the United States government and the state government are correctly alluded to as “federal†governments.
When Felix Morley called attention some years ago “to the illogical practice of referring to the central government as the ‘federal government’,†he declared that the confusion was “due to historical accident.†What he had in mind was that the supporters of the Constitution, when it was being considered for ratification, called themselves “federalists,†and the government under examination “federal.†From that beginning, he thinks, the idea of the genera] or central government being the federal government began to take hold.
That much is correct, but there is an additional reason: the Founders devised what was essentially a new system of government. It has come to be called federalism. But they were so intent upon promoting or preventing its ratification and acceptance that they neglected to devise logical appellations for it in general discourse. Before the devising of a federal structure, leagues or unions of more or less independent states were usually referred to as confederations. The organizations over these leagues could be referred to as confederation governments. There is a comparable word—“federationâ€-in use. But it would be inaccurate and misleading to refer to the United States government as the federation government. Such terminology would imply that the central government is over the states rather than over the people. Whereas, it has a jurisdiction over the people primarily.
People Are Governed
The distinctive feature of the federal system of government is that the general government acts directly upon the people. For example, the government is financed by taxes on persons, not by levies upon states. The government in question can be described with sufficient precision by calling it the United States, general, central, or national government. However, my purpose is not so much to reform the use of the language as to remove the confusion engendered by referring to it as the federal government. More on this point later.
Another source of confusion about federalism is the doctrine of states’ rights, as it is commonly called. In the first place, states have powers (as do all governments), not rights. In the second place, what is being disputed within the federal system of government when so-called states’ rights are asserted is the jurisdiction of the national government to act in some field. It is important that states act to restrain the national government to the exercise of its powers within its allotted jurisdiction. They are most apt to do so in defense of their jurisdiction. But what is ultimately important in this is the rights of persons and the liberties of the people. It is easy to lose sight of this when the dispute is conducted in the name of “states’ rights.â€
Rights belong to individuals in the American constitutional system. Any government (whether state or national) may misuse its powers so as to violate the rights of persons. It is exceedingly important, then, that the rights of persons not become identified with the powers of government, either national or state. That can easily become the means for the enlargement of the powers of government (one or the other, or both) at the expense of the rights of persons. That can result from confusing either states’ powers with rights or treating jurisdictions as if any power that can be conceived falls in one or the other. These are confusions of the federal system that have become implicit in the states’ rights doctrine.
A Mistaken Use of the States’ Rights Arguments
How easy it is to fall into this trap is illustrated in the opinion accompanying a Supreme Court decision announced in 1936. The case was The United States vs. Butler in which the main provisions of the Agricultural Adjustment Act were nullified. The majority opinion was written by Justice Owen Roberts. (It should be noted that Justice Roberts did not linguistically confuse jurisdiction with rights, but he did rely on the states’ rights argument in such a way as to ascribe powers to the states which they neither claimed nor possessed.)
Justice Roberts based his decision upon the fact that the act provided for taxing food processors in order to purchase the compliance of farmers with the programs it outlined. His main conclusion was stated in these words: “Congress has no power to enforce its commands on the farmer to the ends sought by the Agricultural Adjustment Act. It must follow that it may not indirectly accomplish these ends by taxing and spending to purchase compliance. The Constitution and the entire plan of government negative any such use of the power to tax and to spend as the act undertakes to authorize . . . .†Then, as if it were an afterthought, he appended this dictum: “A possible result of sustaining the claimed federal power would be that every business group which thought itself under-privileged might demand that a tax be laid on its vendors or vendees the proceeds to be appropriated to the redress of its deficiency of income . . . .†This last is about as close as he came to dealing with the violation of the rights of individuals involved.
Even so, he was within shouting distance of the issue in the points he made that are quoted above. But then he dragged in the dubious issue of the alleged intrusion of the provisions of the act upon the jurisdiction of the states. He went on at length about the dangers to the states of such action. At one point, Justice Roberts concluded that the “Congress cannot invade state jurisdiction to compel individual action; no more can it purchase such action.†At another point, he declared that if the principle of the act were accepted, Congress could invade the reserved jurisdiction of the states and accomplish the “total subversion of the governmental powers reserved to the individual states.†The proponents of the act, Justice Roberts said, were trying to claim that the Constitution “gave power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people . . .†This claim flew in the face of the 10th Amendment, he charged.
In short, Justice Roberts did his best to bring the whole weight of federalism to bear on his position with what were spurious arguments about the jurisdiction of the states. If the act was not authorized by the Constitution, it was irrelevant whether or not it violated the jurisdiction of the states. That any or all states had power to pass any such act is nowhere proved.
The 10th Amendment does not disclose a single power possessed by the states. Rather, it disposes of the question as to whether the general government has some reservoir of powers not otherwise enumerated. (It doesn’t.) And, if a state does not have the power to pass such an act, it would be no trespass upon its jurisdiction for the general government to pass one. He does not even explore the possibility that the states might be prohibited from passing such acts by the United States Constitution, for which an excellent case could be made. The most that can be said for the argument is that Justice Roberts grabbed the states’ rights ball when it came floating by and ran with it with all his might.
None of this is said in derogation of jurisdictional claims of the states, of the decision the Supreme Court reached, nor of the powers of reasoning of the court. Rather, it is to illustrate the results of the confusion of federalism inherent in the states’ rights doctrine and some of its cor ollaries.
Subordinating the States
But the greatest confusion about federalism and threat to its survival has come from the concerted effort for more than half a century to turn the states and their dependent organizations into administrative units of the national government. The way was eased for this by the habit of referring to the national government as the “federal government.†Off-the-mark talk about states’ rights has had little more impact than dogs have upon the moon by barking at it. State organizations have been most effectively turned into administrative units in connection with the development of the welfare state.
More precisely, as the national government became more and more involved with redistributing wealth, state organizations, particularly counties, became instruments of much of the distribution. For exam-pie, state welfare agencies (called by a multiplicity of names nowadays) administer a great variety of programs funded by the national government. Over the past three decades, too, the courts of the United States have asserted increasing and widespread authority over agencies funded primarily by the states, such as schools, prisons, mental institu tions, colleges, and what have you. There should be no doubt that there have been large scale intrusions upon the jurisdictions of the states.
The confusion has been further compounded in recent years by what has been called the “New Federalism.†Currently, the phrase is being used by the Reagan Administration to designate the plan to turn over some welfare programs to the states, to disentangle some state-national joint efforts by having the national government take over the funding of them entirely, and to reduce national controls over grants made to states by the government. But the idea of a New Federalism had been around for several years before Reagan became President.
The late Nelson Rockefeller proposed doing something to revive federalism in a book published in 1962, entitled The Future of Federalism. At the beginning of his second term, President Richard Nixon advanced the idea of having the national government aid in the recovery of federalism. About all that came out of that was the practice of providing large grants from the central government under the rubric of revenue sharing. What these various proposals and plans have in common is the notion that federalism can be restored to its full vitality by action of the national government. That may well be the problem rather than the solution. At any rate, it has succeeded thus far more in confusing than in clarifying the meaning and function of federalism.
The main point I wish to make about the function of federalism is that it is a system for the protection of the liberties of people and the rights of individuals. The freedom of a people consists in the voluntary use of their property and faculties to their chosen ends. The Founders of the United States generally understood well something that is universally the case: that government is ever the greatest potential threat to freedom of action. The liberties that prevail consist of those acts not prohibited by law and those rights of individuals that governments are forbidden to violate and are enjoined to protect from all intruders. In short, the precondition of extensive liberty for a people is limited government. It is, then, as a device for limiting government that a federal system of government performs its most valuable function. But to grasp the full implications of this, the meaning of federalism needs to be clearly stated as free of confusion and complications as possible.
Two Governments in Power
A federal system of government is one in which two governments have jurisdiction over the inhabitants. In this country, the two governments are those of the states and of the United States. Both governments have sanctions, that is, may use force upon the inhabitants. Both have enforcement officers and courts. This system is sometimes referred to as one of dual sovereignty. The phrase is, however, misleading, and when carried very far leads to conflicts for which there is no resolution short of the destruction of such independence as one or the other governments may have.
The term sovereignty came into currency in the modern world in the 16th century. Monarchs came to be referred to as sovereigns. The concept was used to buttress absolute monarchy. It means the supreme, or ultimate authority, over a land, state, or country. The United States does not have a monarch, or king; literally, it does not have a sovereign. It goes deeper than that, however. Neither the Constitution of the United States nor the constitutions of the states vest supreme authority in any man, any group of men, or the people as a whole.
It is the genius of American federalism that government is limited, not supreme. Sovereignty is a mischievous notion, an improper analytical tool for describing government in this country. It sends people in quest for an authority which can only exist in defiance of the constitutions of the states and of the Constitution of the United States.
Federalism is best understood, not as a political concept, but as a legal concept, which is what it is. Sovereignty is a political concept (an absolutist authoritarian one, at that); jurisdiction is a legal concept. Thus, the conclusion that in the United States the states have a jurisdiction, and the United States has a jurisdiction.
Defining the Jurisdiction
The Constitution of the United States, aside from describing the method of selection of its officers and the inner workings of the government, is mainly concerned with defining the jurisdiction of the government that it authorizes. Also, it denies jurisdiction to the states in cer tain areas, prohibits states to act in certain ways, and reserves powers to the states, and rights to the people. Before offering some proof for this and delineating the jurisdictions, however, there are two basic points that need to be nailed down.
The first is to show why state governments are federal governments as well as the United States. These United States have a federal system of divided jurisdiction in government. Severally, the states exercise authority over persons in one of these jurisdictions. The United States government exercises authority in the other. Both, therefore, are federal governments. To acclaim one as the federal government to the exclusion of the other is to deny, implicitly, that we have a federal system of government.
The other point has to do with the independence of the state governments of the central government and the powers of action independent of state governments by the United States government. That is not to say that each does not rely on the other in important ways—they do—but to affirm that their operations as governments are independent. Indeed, the independence of the states stands on more solid historical ground than does that of the national government.
James Madison noted that in this and several other matters, “The State governments will have the advantage of the federal government.†As proof, he pointed out that “The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former.†His meaning was that elections occur within states, and that the general government depends upon the states to come into being. “On the other side,†he continued, “the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government . . . .†Moreover, some of the states existed before the United States. True, after the adoption of the Constitution, states are admitted to the union by act of Congress. But they come into being at their own instance, draw up their own constitutions, and select their own officers. Their independence of the general government, then, is antecedent to it.
The important point, however, is that both the government of the union and the states are distinct and separate entities. They are governments in their own right, neither being the creation of the other. Devotees of the states have sometimes argued that the United States was created by the states. Not so, however. The states did send delegates to the Constitutional Convention, and they did hold elections for the consideration of ratification of the Constitution. But the latter dele gates were chosen by the electorate, and the preamble to the Constitution refers to “We the people†as the origin of the government. In any case, both governments possess the essentials of separateness, distinctness, powers, and independence to be considered governments in their own rights.
Local Governments
By contrast, local governments are not independent governments. Except for the District of Columbia, all local governments are creatures of the states. They come into being by authority of the states, and derive such powers of governments as they exercise from the states. They are not, then, a part of the federal system of government, but rather a part of state government. Or, to be absolutely precise, they are linked to federalism only by their, ties to state governments.
If the independence of the state and United States governments were all that could be said about federalism, however, it would be a fearful and monstrous system of government. To have one independent government over the inhabitants is bad enough, but to have two would be intolerable, if each or either could exercise its power without restraint. That is not the case, however. Both governments are restrained, restrained by each other by the delineation of their separate jurisdictions, the denial of powers to one or the other or both, and by the specified manner in which they are to exercise their powers. Their independence of each other is important, because it provides a safeguard against intrusion by either into the jurisdiction of the other. But it is of even greater importance that in the assignment of jurisdictions both governments are limited and restrained. It is these restraints that protect the liberties of the people.
The bulk of these restraints are found in the United States Constitution. In the first place, the United States government was never granted all the powers that it might be claimed are inherent in government itself. It was granted only a limited jurisdiction to deal with certain objects of government. These powers were described in general terms in the following ways at the time of the debate over the ratification of the Constitution. John Jay, speaking in the New York state convention, maintained that the powers were largely restricted to the following objects: “They comprehend the interests of the states in relation to each other, and in relation to foreign powers.†James Madison observed that “the powers of the general government relate to external objects and are but few.†Again, he emphasized that “The powers delegated by the proposed Constitution to the federal government are but few and defined.†In the Virginia convention, Edmund Pendleton argued that the genera] government was to act “in great national concerns, in which we are interested in common with other members of the Union . . . .†At another point, and more heatedly, he insisted that the government authorized was not clothed with all powers of government. “It only extends,†he said, “to the general purposes of the Union. It does not intermeddle with the local, particular affairs of the states.â€
Specified Limited Powers
It is not necessary, however, to rely solely upon the comments and descriptions of contents by the Founders to learn that the Constitution granted only limited powers to the general government. The document speaks for itself in this regard. The powers of the government were enumerated in several places in the Constitution, above all, in Article I, Section 8. For example, such powers as these are granted:
To define and punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. To raise and support Armies . . . .
To provide and maintain a Navy.
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.
In the most general terms, then, the Constitution provided for a general government to conduct foreign relations, to settle disputes among the states, and to facilitate trade and intercourse among the peoples of the states.
Further, the United States government is prohibited to do some things. For example, “No Bill of Attainder or ex post facto Law shall be passed.†“No Tax or Duty shall be laid on Articles exported from any State.†“No Title of Nobility shall be granted by the United States . . . .†and so on. The government is further restricted by amendments, such as the Fourth, which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.â€. Beyond all these, there is a blanket limitation contained in the 10th Amendment: “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.â€
Limits to State Powers
The jurisdiction of the states was conceived as being much more comprehensive than that of the United States at the time of the drawing of the Constitution. The Constitution does prohibit certain powers to the states. For example, “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin money, emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.â€
There are further prohibitions on the states in amendments, the most general of which are to be found in the Fourteenth, and the central ones are embodied in these words: “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 juris diction the equal protection of the laws.†Beyond such prohibitions, however, the main powers of government over the lives of persons were reserved to the states.
James Madison stated the case for the residual powers of the states this way. “Those which are to remain in the State governments are numerous and indefinite . . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.â€
State Constitutions Also Limit
It should be noted, however, that the states are further restrained by their own constitutions, and most of these have much more extensive restrictions than are contained in the United States Constitution. Moreover, as already noted, since the time of Madison, further extensive pro hibitions on the states have been added to the Constitution. Thus, it is correct to say that both the United States and state governments are limited and that neither possesses all those powers which may be conceived as inherent in government itself.
The object of this limitation, indeed, the highest object of federalism itself, was the rights of individuals and the liberties of the people. Alexander Hamilton put it this way: “This balance between the nation and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits, by a certain rival-ship, which will ever subsist between them.â€
From our perspective, it is easy to conclude that Hamilton was wrong, at least in part, in his prediction. He was right, of course, in holding that the national government would defend its jurisdiction from intrusion by the states. He was right, too, in maintaining that this would provide security against states’ encroaching upon the rights of the individual. It has worked that way historically, and it is still working that way. But what of that “rivalship†of the states over their jurisdiction and the security that was supposed to afford against concentration of power in the central government and its violation of the rights of the people?
Aside from clamors about “states’ rights†and an occasional suit by some state in the courts of the United States, the states appear to be paper tigers. They are largely unable either to protect their own jurisdiction or the rights of their inhabitants from the central government. Either Hamilton was wrong or something has happened in the interval.
An Important Balance
It will be my position that Hamilton was right about the Constitution as it then stood. To understand why, it is necessary to look at the structure of the government and how it has been changed so as to effect the power of the states to defend their jurisdiction. The answers to two questions should lay open to view the crucial structure of the government. First, what branch or organization in the central government was crucial to the defense of the jurisdiction of the United States? While all the branches play a role in it, the ultimate power for the defense lies in the Supreme Court. By its power of review of legislation, both national and state, where a constitutional question is raised, it can vigorously and effectively assert and defend the jurisdiction of the United States.
Second, in what branch of what government is there an organization with the power and under the control of the states to defend the jurisdiction of the states? There is no such organization today. There has not been one in the United States since 1913. Until 1913, the United States Senate had power to do it (and it still does), and state legislatures had crucial leverage over the Senate. That leverage was removed in that year by the 17th Amendment. The amendment provided for the direct election of Senators.
In the original Constitution, Senators were elected by the legislatures of the states. In effect, the state governments had representatives in Congress; they were the members of the Senate. The Senate is well placed in the government to defend the jurisdiction of the states, if it will and must. It can refuse to pass any bill which intrudes upon the jurisdiction of the states. Moreover, Supreme Court, indeed, all court, appointees of the United States government, have to be approved by the Senate. Presidents, too, have large incentives to get along well with the Senate, for all their major appointees and all treaties must be approved by the Senate. Further, trials of impeachment, including judges, are conducted before the Senate.
Since 1913, state legislatures have had little or no effective control over Senators. No longer do they have to please the state legislatures to be reelected. State governments are no longer represented in the central government. It is not surprising, then, that the great growth and expansion of power of the national government have occurred since 1913. The main balance wheel for the states in the Senate no longer operates to restrain it. The courts have ever more vigorously asserted and expanded the jurisdiction of the United States, and the presidents and Congress have not been far behind.
That is not to say that federalism is meaningless today. It is still used to restrain the states. Moreover, the states still retain much jurisdiction, or portions of it, thanks largely, I suspect, to the voters. But the central government is no longer restrained significantly by federalism. It has become the government, indeed, the federal government, as we acknowledge in our references to it.
If the above analysis is correct, federalism can hardly be restored by redistributing welfare programs. It will hardly be revitalized, in any case, by federal aid or revenue sharing. It will only be able to perform its salutary function of protecting its jurisdiction so as to defend the rights of its inhabitants when it has a means for doing so within the general government itself. Looked at that way, the election of Senators by state legislatures was a good idea.
I have a particular disliking of the fourteenth amendment because I think it paved the way for the abandonment of the federal principle in our system of government. In fact, any amendment which contains the words “The Congress shall have power to enforce this article by appropriate legislation,” or some version thereof, strikes me as particularly offensive to the genius of the original constitution on its face.
I think that in some cases our forbears were simply trying too hard.
But, yes, I agree with the author. We need to return to the State governments the federal principle of selecting Senators. I.e., repeal the 17th Amendment. He’s also dead-on accurate, in my opinion, when he says that our referring to the central government as THE “federal” government has served nothing more than to obfuscate the true meaning of the term.
America’s Schoolmaster, Noah Webster — who said of the United States that it was “the first example in modern times of a government founded on its legitimate principles — referred to our (original) system of government as a Federal Representative Republic, each term in the descriptive having a specific meaning. In his 1828 American Dictionary of the English Language, Webster defined the term federal thus:
1. Pertaining to a league or contract; derived from an agreement or covenant between parties, particularly between nations.
2. Consisting in a compact between parties, particularly and chiefly between states or nations; founded on alliance by contract or mutual agreement; as a federal government, such as that of the United States.
Hence my use of the term “contract” when referring to the (voluntary) alliance or mutual agreement between the States called the U.S. Constitution.
Good article. Thanks for posting it.
Killing of baby abortionist George Tiller in Kansas City over the weekend underscores the importance of the 10th Amendment to unity and harmony of our nation.
Abortion is a local issue and ought to be decided by each State for itself. Abortion was not an national issue until a usurping federal judiciary “federalized” it and attempted to force its agenda upon the entire U.S. population. The more the federal government flouts Reserved States rights, the more unrest we experience as a people and nation.
Questions of religious establishment and separation of church and state, search and seizure, abortion, sodomy, pornography, and ten thousand other things are reserved under the Constitution for the people of the several States to decide through local government processes. When usurping federal judges decide to impose thier agenda upon the rest of the nation, division and turmoil result.
The “radicalization” of the American people begins with government over-reaching its mandate and attempting to federalize questions of local law and morals.
It is only common sense that when a government takes away the right of people to decide local issues for themselves – issues touching the things that matter most and are closest to our hearts – that they will react vehemently. What arrogance to tell small town America that it must condone abortion, or that it is prohibited to display the Ten Commandments upon class room walls! Is it reasonable for a tiny minority of atheists to fetter the collective will of an entire community, state or nation? Do the idiots on the federal bench suppose the American people will sit still for this indefinitely???
I often argue for secession in these posts. But I really see secession only as a last restort and its threat as leverage to bring a usurping federal govenment to its senses. Yes, secession is an option and we MUST be willing to exercise it before surrendering our culture to the radical leftests that would destroy our traditional values and freedoms through the federal government. But how much better if the federal government would just let the States decide local issues for themselves, as in fact the Constitution guarantees? Think of the energy that has been wasted and misdirected merely because the federal government cannot resist the impulse to federalize questions belonging to the people of the several States!
If we are to have peace and enjoy the bonds of Union, the rights of people through their State governments MUST be respected. The sooner this is recognized the sooner we can be at peace and rest as a nation. This is why the Tenth Amendment Center’s work in trying to restored Reserved States’ Rights (which are ultimately People’s rights) is so important and we are greatly indebted to them for it.
Maybe we should start by repealing the 17th amendment, and granting the power to select Senators back to the States. It’s a necessary check/balance to ensure that centralized governmental powers are restrained, while at the same time representing State interests within the central government.
Perhaps there is yet a more enlightened, yet indefinite, way of characterizing the problem and advancing a solution.
Federalism, ab initio, is as failed a notion with respect to the United States as it is to the United Nations (another form of federalism).
Perhaps the states would have been better off under a voluntary treaty arrangement.
Interesting perspective, Jeff. I want to hear more.
I’ve argued for years that if there is any hope of saving the country, we must revive the federal principle and restore it to its proper place, or role, in our form of government. However, what you’re saying (or the way I’m interpreting what you’re saying) is that perhaps restoration of the federal principle is not the way out of our current mess. I’m not willing to dismiss the idea out of hand. Afterall, the Declaration does state (or declare) that “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, … and to provide new guards for their future security.”
Thanks for asking, Terry.
Under a federal system, there will always remain the big 2 questions:
(1) Who has jurisdiction to act on the subject matter?
(2) To what extent can an aggrieved party exit the system?
These 2 issues are inherently problematic, and I do not see any way they can be avoided.
I would submit that the notion of a federation that can work forever is failed from its inception. It cannot.
I rather like the idea of maybe making an alliance, pact, or whatever you’d like to call it, which exists as long as a member wants it to.
Much like the old divorce laws, which relied heavily on contrived (“false”) admissions of fault just to be allowed to obtain a divorce, we are stuck in a conundrum of aguments about why there is some logical basis for the various positions taken in regards to our federal system. The fact is, there are no good answers to be found because the concept itself is flawed.
That is why, after many decades of goofing around in the divorce context, the legislatures finally came around to the idea that a “no fault” divorce should be available. On a similar note, the common law in regards to general partnerships is that a partnership is terminable at will by either of the partners, with or without cause.
I think the same could apply to governments. Why be “stuck” in a bad deal forever? Not that we should admit we are stuck, as there are many good reasons to claim we are not stuck and have certain “rights,” but it does get old and redundant making these pointless arguments.
Why should we have to prove anything about anyone? Why is ceding sovereignty so essential to freedom and self-determination? Why shouldn’t anyone who does not want to be a “friend” anymore be told he/she will continue to be forced to remain a friend? That is pure silliness.
I see no reason to commit to anything “forever.” Nothing is forever. It is nice to have friends and allies last forever, but the minute they betray, we should all have choices to place limits at our will on the extent to which we wish to remain friends or allies. And we should all be able to do this with or without cause.
Many people cease to be friends without having to prove they are right, or were done wrong. That’s the way friendship works. It is totally voluntary and subject to the will of either party – whether the foundation of a decision to becme, or continue to be, friends is “justified” or not.
The best of friendships last because of the complete, unilateral authority of either of the friends to end the friendship.
Forced friendships tend to be more corrupted by abuse and disatisfaction.
But there is a flip-side, or downside to my point. The minute the states are “free” of the other states, we could easily see the sort of international meddling and treaties and such that we experienced back in the days when much of America was divided among loyalties to the British, France, Spain, etc. European countries were quite ready to pick sides and assist its “allies,” so that we might prevail in disputes with our closer neighbors.
Then, we’d also have the whole “freeloader” problem, where some states freeload on the efforts of the others, the latter who believe a common interest is not being fairly contributed to by the so-called “freeloaders.”
It is not an easy topic.
So, maybe federalism should be preserved. I’d like to have further discussion along these lines as well.
Great job. Have to question ” United States has no sovereign”. Which United States? Hooven & Allison vs. Evatt evidences 2 operating in law simultaneously. One is Washigton,D.C. Likewise there are 2 United States Constitutions. One “for” and one “of”. In law whats “of ” is subject to it a higher authority. Example: ” citizen of the United States” is a citizenship created by Congress. Constitution of the United States of America was created by Congress. Thus Congress asserts dominion over all it creates. It shares such dominion equally with the Executive and Judicial branches. Semantic word play historically is often used to obfuscate substance of law. Person is another redefined word opposite of common useage/street vernacular. Corporation,trust,propreitorships are recognized as persons . Thus again another duality. Natural person,Artificial person. Govt. practice is to combine the 2 creating the necessary overlaying authority and jurisdiction. Thus person defined with natural person/ human being with artificial equates to mean, a legal fiction of law with a commercial character regulated in commerce. Federal govt. asserts sovereignty over the person by Commerce Clause. When such person is damaged, govt. interposes Respondeat Superior. The sovereign doesn’t waive its rights to being sued or litigated against. If there is no sovereignty in the United States whats being invoked? From whence does govt. claim to sovereignty derive? If Federal govt. has absolute dominion over people how can Declaration of Independence disbandment clause be applied against? Modernized Congressional cutom and practice referring to identify itself as Federal Govt. projects itself as soverign in respect to all persons[14th Ammendment federal citizens in whatever state they reside.]. Claiming oneself as not being a person or that one is of the sovereign people is upheld repeatedly as being frivilous arguments,sanctionable by court. The position of law we’re all governed under is foreign to that of the Founding Fathers. Their appears to be a duality in every aspect of how we’re governed. Documentation schemes of govt. reflect this in how family bible is accepted in lieau of birth certificate. Automatic common law recognition in lieau of marriage license. In past some states like Arizona accepted one’s car as a household good in lieau of moter vehicle recognition. Point is there is a duality to everything. The longer we all remain under the 14th Ammendment the faster whats in lieau of disappears.
Jeff, thanks.
I definitely agree with you that the notion of a federation that can last forever is a flawed and illegitimate concept in its inception. Well said.
Even under the best of conditions where a great deal of societal cohesion exists (comparatively speaking), as spoken about in the Federalist Papers concerning the United States in its infancy, there still exist too many differences between us (differences that will invariably become more numerous and more profound across the span of years, due to a variety of circumstances and conditions) to seriously expect that any league between men in their political capacities can endure forever. In that sense, yes, the idea is a flawed concept.
We are not “one People” anymore. And the great likelihood — given liberal dominance in America — is that we will never again be “one People.”
The cornerstone of Americanism has always been self-government and independency (And by the way, by the term “self-government” I mean what the term signifies primarily — self-control, self-restraint.). Almost wholly due to the dominant influence of liberalism in America (which I believe could not have happened had the federal principle remained intact), we have taken on many millions of peoples and cultures that are more or less incompatible with our own. We call it diversity, and we celebrate its destructiveness as if it is something to be celebrated. Well, I guess so if self-destructiveness is an admirable quality.
Now, what has any of that to do with our discussion on federalism? Well, as I said, the federal principle, which was an integral part of the original constitution, has been eroded to the point that there is barely a remnant left. Liberalism — which is primarily a deceptive ideology — can only be kept at bay (or relegated to the far corners where it belongs) under some political arrangement which honors and encourages local self-government and independency in local matters. The idea is to allow half-witted (liberal) policies to be enacted at the local levels of government where ‘the (local) governed’ have a real stake in the outcome, and there is no great deliverer to bail them out every time they get themselves into hot water, in a manner of speaking.
But I think that when you boil it all down, any league between the States would be in some way, shape, or form, considered a “federation.” So, as long as the States exist as viable political entities (which implies that they retain some measure of independency and self-government), then I think that federalism must be a part of our governing system. I think we just have to be smart about it and admit to ourselves that no system of government is perfect or enduring in the sense that it can last forever; that no system of government is “self-perpetuating.” And that no generation has any paternal right or authority to decide for succeeding generations what shall be their form of government.
Any kind of league or agreement we enter into will take work on our parts and on the parts of future generations to maintain, IF future generations care to maintain it. But a dependent, non-self-governing People can never be their opposites. I tend to think that the main idea behind inclusion of the federal principle in the original constitution was to encourage local independency which would leave the central government free to do the business that it was designed to do.
Thanks, Terry.
BTW: Anyone here about this article in the English edition of the Pravda?
They are laughing at us!
http://english.pravda.ru/opinion/columnists/107459-0/
Repealing the 17th would be appropriate however why would congress, as it sits perched in the catbirds seat today, entertain its own power being reduced by its own act? The same for the executive and the courts. Why would they seek to undo what they have so deceptively created? It is not the nature of man to lessen his grip on anything he finds use for.
Paper tigers? You mean empty promises. States whose legislatures have sucked the teat of the tax man will never nip at it. The redress of grievances had but two powers the people could employ against deaf legislators, the witholding of tax and the confiscation of property. Today you have no choice but to pay tax or the IRS, a federal police force which without warrant or due process will remove you from your property, forget removing your legislators property. Don’t even think of peacable assembling to accomplish the act. You will be arrested for trespass or demonstrating without a permit. Today we see citizens grand juries bring indictments but you won’t see anything else, there is nothing but extremes without a graduated course of pressure to cause your grievance to be heard.
Finally, the federal reserve has to be absorbed back into the peoples grasp and accounting. Money IS the root of all evil. It is the method of influence least visible yet most persuasive and we the people are the rightful owners and managers of it not a select invisible empire without allegiance or fear of even subpoena.
We have been weedled out of our protections over time by devious and even ignorant men. When criminals are held to account for their acts it is not a sentence that is imposed over great lengths of time it is imposed as quickly as the process to determine that penalty can be accomplished. What is holding up the remedy we clearly see as the returning to the principals of fair and prudent government? I submit it is the unfair and imprudent government itself refusing to capitulate. Any why would it do so voluntarily?
Eric wrote:
“Repealing the 17th would be appropriate however why would congress, as it sits perched in the catbirds seat today, entertain its own power being reduced by its own act? The same for the executive and the courts. Why would they seek to undo what they have so deceptively created? It is not the nature of man to lessen his grip on anything he finds use for.”
Eric, we’re not arguing that any branch of the central government would take it upon itself to repeal the 17th amendment, or to otherwise diminish its acquired, extra-constitutional powers. I wrote in my initial comments to this article the following:
“But, yes, I agree with the author. We need to return to the State governments the federal principle of selecting Senators. I.e., repeal the 17th Amendment.”
Heavy on the “WE.”
Forget Congress, forget the Executive branch, and, yes, forget the federal courts. WE don’t need any of them to make changes or alterations to this government, because WE, not they, are the ultimate arbiters, as Thomas Jefferson said. And, of course, Article V., U.S. Constitution provides an alternative mode of amendment which essentially bypasses Congress.
True. It does. But consider carefully, the fact that almost half of voters are not subject to the downside of paying taxes. These people would love to see the government grow. It behooves them by way of benefits they receive with little to no cost to bear.
I can almost assure you that the only way of winning with the vote would lie in a very radical surge from the conservative voters during a more-than-likely non-Presidential election season.
The evils of the system, which we call voter “apathy,” is really not apathy at all. It is called “freeloading.” Freeloading is what socialism and control is all about. It benefits our legislators to have hoards of non-taxpayers enter the election process. It is this class of people that is all-too-happy to see legislators grow government.
If government could raise taxes, it would. The only reason it does not is because it limits its reach to “what it thinks it can get away with.”
There will be a point when it steps too far. We are seeing it, now. But still, it is a little too early to spawn real change.
As soon the time becomes ripe, you will no longer see factious conservatives. You will see them rally together like we have not seen in quite some time. It might not be in the name of the “GOP,” however.
For examples of the GOP in Texas (which you might consider to be more “right-minded”), go to the Texas legislature’s website and look at the link for voting results on the house floor. Just look at what they do during a typical day, and you will be rather disappointed.
I think they are well-intentioned, but they just cannot seem to keep themselves in check. As stated above, it is a basic evil of human nature.
Jeff,
I couldn’t agree more with everything you said. My whole purpose is to be prepared when the time comes. And the Texas Republicans aren’t the only ones doing it. I complain constantly about the ‘going-on’ in the Oklahoma legislature, though there have been some maked improvements of late.
Again, very well said, sir.
I think we have to realize that, at least at the federal level, the fix is in at the top. All front-running Republican candidates are members of the Council on Foreign Relations whose stated goal is regional and world government (North American Union for starters). Huckabee, Guiliani, McCain, as well as Obama and Clinton were all members of this elitist group who is also behind the Federal Reserve System. Only Ron Paul was not a CRF member and the managed media destroys men like him early into the process by casting them as “fringe” “unelectable” “lacking credibility” etc, etc, etc. Yet, now that everything Ron Paul said has come true from the housing crisis to the collapse of the economy he is suddenly very acceptible…but by the time the next election comes around that will change again and he will be marginalized. Anyway, all the more reason to secede since demoncracy is a joke and our candidates are all picked for us by the Bilderberg group long before we ever know their names.
Blessings,
The Federal government is a Republic and this form of government is guaranteed to each of the States, under the Constitution (Article IV, Section 4). This Republic (the central Republic) is, however, different in a most important respect from the State Republics. To lose sight of this fact, of this difference between them, is to overlook the deep significance of America’s federated system–a federation of Republics featuring decentralized power.
The principal difference, for present purposes, is as to quantity of power. The central Republic is a delegated-power government which possesses only the comparatively few and limited powers granted to it by the people as enumerated in the United States Constitution, as amended. These include chiefly the powers concerned with “war, peace, negociation, and foreign commerce” (quoting The Federalist, number 45 by Madison). Each State Republic is a full-power government which possesses the vastly varied powers needed to administer intra-State affairs–”all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement and prosperity of the State” (again quoting The Federalist number 45). The full-power government of each State is, nevertheless, subject to the State Constitution as well as to the United States Constitution’s grant of power to the Federal government and its limitations which are expressly specified as applying to the State governments. A State government, therefore, does not possess the unlimited power of legal sovereignty–that is, total power over all persons and things within its jurisdiction. The central and the State Republics are constitutionally limited governments, in keeping with the American formula: Limited for Liberty.
Governments of such limited-power character as these Republics are to be distinguished from the type possessing sovereign power, unlimited or total power as mentioned above, such as Great Britain’s Representative Democracy, previously discussed. This clear and precise definition of the term “sovereign power” is different from, and preferable to, the more general and loose use of the word “sovereign” as meaning merely a government exercising the usual powers of self-government, and of declaring war and peace, without outside control. Under the American philosophy and system, the people alone possess political sovereignty and as the creators of their tools–the Federal and State governments–they do not permit any of these governments to possess the total powers of legal sovereignty. This political sovereignty of the people, moreover, is limited by the traditional American philosophy in favor of protection of The Individual’s God-given, unalienable rights. As Supreme Court Justice James Wilson, one of The Framers, stated in his separate opinion in the 1793 Chisholm case, in discussing at length the concept of sovereignty in relation to the American philosophy and system of constitutionally limited government, they bar from the American governmental scene every pretense of sovereign power governmentally (emphasis per original):
“To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established the Constitution. They might have announced themselves “SOVEREIGN” people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.”
Here he referred to two entirely different things: legal sovereignty of government—entirely lacking in the limited-power government of the United States–and political sovereignty of the people. The legislative body (the General Court) of Massachusetts, in its Proclamation of January 23, 1776, also meant legal power (legal sovereignty) of government in contrast to political power (political sovereignty) of the people, in stating (and in effect defining “sovereign power”):
“It is a maxim that in every government, there must exist, somewhere, a supreme, sovereign, absolute, and uncontrolable power; but this power resides always in the body of the people; and it never was, or can be delegated to one man, or a few; the great Creator has never given to men a right to vest others with authority over them, unlimited either in duration or degree.”
To repeat, no government in the United States–least of all the limited-power, delegated-power, central government–possesses legal power of sovereignty: sovereign power.
The difference between the Federal government’s power and that of the government of each of the States is more easily understood in the light of the situation existing in 1787-1788 when the Constitution was being framed and ratified, in order to bring into existence the Federal government. At that time, the original thirteen States were already in existence. They ante-dated the creation of the Federal government by the Constitution, which supplanted the Articles of Confederation by consent of the people expressed through the State Ratifying Conventions. Under those Articles, there had been no central government with any power over the individual citizen or over the State governments. The Confederation was a mere treaty arrangement between the independent governments of the several States–by approval of their legislatures only and not by any direct authorization by the people of each State. The Confederation had no Executive Department and no Judicial Department–nothing but a legislative body, the Congress, which was completely powerless and could only request the States to provide money for it, or to do other things. The Confederation was, in truth, not a real government; and the State governments freely flouted with impunity the Articles of Confederation whenever this suited the pleasure of any of them. By 1787, the collapse of any pretense that the Confederation Congress possessed any governmental power, or authority, or any effectiveness governmentally, was complete.
Each of the State governments was, therefore, actually exercising without any check virtually full governmental power whenever, and to the extent that, it chose so to do by the time the proposed, new Constitution, as framed in 1787, was submitted to the States for ratification. By action of the State Ratifying Conventions in 1787-1788, the sovereign people of each ratifying State exercised their indubitably reserved right and power by completely ignoring the Confederation and consenting to the creation of the new government–granting to it only that comparatively small part of the State government’s powers which was specified in the Constitution as being so delegated. This is how the Federal government came into being as a delegated-power Republic possessed of only a few, limited powers as enumerated in the Constitution. All of the remaining powers of each State government and its people were reserved by them–as later expressly stated in the Ninth and Tenth Amendments, which merely confirmed the already-existing fact of this reservation, or retention, of power by them; subject only to the few limitations expressly specified in the Constitution as applying against the States. This is made clear beyond possibility of doubt by the writings of the leaders of that period, including especially various signers of the Constitution. The clearest and most comprehensive exposition is contained in The Federalist, particularly numbers 17, 32, 33 and 83 by Hamilton and numbers 39, 40, 41 and 45 by Madison. Before 1789, Americans were unified in spirit and philosophy but not as to governmental system.
The foregoing exposes the unsoundness of any claim that the central government possesses inherent powers amounting to sovereign power–or any power whatever other than, or in excess of the limits of, those enumerated in the Constitution, as amended, as being delegated to it expressly or related to such express powers by necessary implication. If such a claim were true, the Federal government would be a government not of definitely limited powers but of powers without definable limits. Nothing could be more antithetical to the truth, as proved by all pertinent historical records, notably The Federalist. Nothing could be more violative of the controlling intent of those who framed and adopted the Constitution in 1787-1788, in keeping with the principle of the Declaration of Independence–that government is permitted to possess only “just powers” (limited powers). Any use of the term “sovereign,” or “sovereignty,” in seeking to define the limited, delegated, power of the central government is unsound.
As the Supreme Court stated in 1936–for perhaps the thousandth time since 1789–(Butler case, at its page 63), each State possesses full governmental powers except such as the people, by the Constitution, either conferred on the Federal government, denied to the States, or reserved to themselves. This is true according to the original intent of those who framed and ratified the Constitution and, therefore, of the people for whom they acted; and this intent is forever controlling, subject only to the people’s changing the Constitution, by amendment.
The Federal government thus started out with nothing like the full powers of one of the State governments, much less the unlimited power of a sovereign government. Under the Constitution, as amended, the Federal government still retains its original, strictly limited-power character–limited to the relatively few enumerated powers which have been delegated to it as discussed above. All of the amendments to the Constitution combined have not altered this fundamental of its character. On the contrary, each amendment which granted to this government any additional, specific and limited power only served to confirm its limited power character and the underlying principle of constitutionally limited government.
A main aspect of the federated system of republics, as contemplated by those who framed and adopted the Constitution, was the system of political checks by the States upon the central government–as explained, in part, by Madison in a 1787 letter to Jefferson (then in Paris), soon after the Framing Convention adjourned:
“In the American Constitution The general authority [of the central government] will be derived entirely from the subordinate authorities. The Senate will represent the States in their political capacity; the other House will represent the people of the States in their individual capac’y [capacity]. The former will be accountable to their constituents at moderate, the latter at short periods. The President also derives his appointment from the States, and is periodically accountable to them. This dependence of the General [central] on the local authorities, seems effectually to guard the latter against any dangerous encroachments of the former; whilst the latter, within their respective limits, will be continually sensible of the abridgement of their power, and be stimulated by ambition to resume the surrendered portion of it.”
By the words “the subordinate authorities” Madison meant the States–through the people and the government of each of the separate States. The original system provided that the Senators from each State would be chosen by its Legislature (changed by the 17th Amendment); while the system of Electors of each of the States choosing the President is provided for in Section 1 of Article II, as modified by the 12th Amendment.
“Vindiciamus”