by Josh Eboch
Anyone who has ever participated in an online discussion forum knows that, sooner or later, all political debates are reduced to analogies of Hitler or Nazism. This self-evident fact of human existence is unofficially known as Godwin’s Law.
But for those of us who believe in the Constitution, specifically its Tenth Amendment and the spirit in which it was ratified, there is another law; one that says, sooner or later, all debates will be reduced to charges of intolerance, racism, or some variation on that theme. Call it DiLorenzo’s Law.
Ostensibly, these charges are leveled because “states’ rights” and the Tenth Amendment have been used in the past to justify gross violations of basic individual freedom and liberty. Which is absolutely true. From slavery to Jim Crow to poll taxes, there is no question that state governments in every part of the country have legislated in discriminatory and harmful ways against their own citizens.
But it is also important to realize that bad laws and regrettable history do not themselves discredit the decentralized, federalist structure of our Constitution. Rather, they are an indictment of bad government and its limitless potential for harm; prime examples of the injustice that inevitably results from arbitrary power.
Which is exactly why a strong Tenth Amendment remains so vital. It would be foolish to think we can trust the federal government to act in accordance with freedom at all times, any more than we can trust the governments of each state to do so. Just ask the Sioux and the Cherokee. Or Japanese-Americans in 1942.
The best protection for liberty is a stiff and dynamic political competition between the states, and between states and the federal government, that allows for ideas to flourish or die on their merits. In that way, Americans cannot ever become permanently trapped by authoritarianism at any level.
However, for such competition to exist, states must retain their power to act as sovereign political units. That includes the ability of voters to judge for themselves through their elected officials the constitutional limits of federal authority within a given state, nullifying those laws that exceed Congress’s enumerated powers. When, as is the case today, five justices on the Supreme Court are allowed to impose their expansive view of central authority on the entire country, they are just five federal foxes guarding a hen house of 300 million taxpayers.
That is why, in order to protect its citizens from federal usurpation, the ultimate tool of each sovereign state must be its power to leave the Union altogether. Without that power to withdraw their consent, voters are nothing more than human cash machines residing in administrative fiefdoms of the central government.
But try explaining a concept as basic as “consent of the governed” to the average statist, and you will almost certainly be told that America already settled this question in 1865.
Except force of arms cannot settle questions of natural law, it can only postpone them. Given that the Constitution itself was ratified as a voluntary contract between the states for their mutual benefit, with no Perpetuity Clause or binding third party arbitration, the citizens of the southern states (the vast majority of whom did not own slaves) were not only morally, but legally, justified when they chose to void their participation in 1861. (Maybe even more so than the original slave-owning colonists had been in their secession from Great Britain in 1776.)
And while a desire to preserve the system of chattel slavery clearly did play an important role in the South’s decision to secede, it is really a case of doing the right thing for the worst possible reasons. Only sheer ignorance or intellectual dishonesty would lead someone to claim that support for the legality of peaceful secession is still tantamount to support for slavery. (Ever heard of Quebec?) They are two completely separate issues.
But, rather than acknowledge his total lack of constitutional authority to prevent any state’s peaceful secession, potentially saving 600,000 American lives, President Lincoln “preserved” the formerly voluntary Union with the bloody force of his federal boot heel. And did lasting dictatorial violence to the very Constitution he had sworn to protect. It was not until later that history sought to hide these facts, ascribing to a cynical politician and inveterate racist the ironic moral camouflage of “Great Emancipator.”
It is due largely to the dichotomy between Lincoln’s words and his actions, and to the crucial distinction between secession’s legality and slavery’s injustice, that people still hold such conflicting opinions and beliefs regarding one of our nation’s most complex and painful eras. And why those who call for state sovereignty now often find themselves accused of racism, or in the awkward position of attempting to rationalize the inexcusable.
The truth is that the confusion on both sides is wholly unnecessary because American society has changed permanently, and for the better, since the days of Lincoln. Far from seeking to perpetuate a rigid class system or forced servitude, today’s New Federalists come in every skin color and desire only to be left alone by the federal government, to conduct their lives and businesses as they see fit.
They no more need to defend slavery or segregation to support state sovereignty than peaceful Muslims need to defend terrorism to support Islam.
Despite some disgusting perversions, the Tenth Amendment, indeed our entire Constitution, has always been fundamentally about maximizing individual freedom through the greatest possible decentralization of corruptible power. Just as no reasonable person today would condone enslaving another human being, so none of us could reasonably believe that power sufficient to coerce the obedience of 300 million people can ever be trusted in the hands of 537 self-serving politicians and nine unelected bureaucrats.
Before we can regain our national spirit of self-determination, Americans of all political stripes will have to better understand their own history, taking from it what is right and noble, while leaving behind what was not. Freedom is always a risk in the future, but it’s time we made peace with our past.
Josh is a proud “tenther”, freelance writer, and activist originally from the Washington, D.C. area.