“States rights are the rights of the people”
– John Jay
The founding generation valued political decentralization and created a federal government meant to exercise very few powers. Clearly, that is not the system we have today. In a powerful new book, legal scholar Adam Freedman explores where we came from and how we got here today. And unlike others, he offers solutions that would make a Tenther proud.
When our framers drafted the Constitution, they focused on one central theme – define what the new general government will do. Throughout the Constitution, the federal government was delegated specific tasks, the rest were left to the states and the people. James Madison summarized this motif in Federalist #45.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
This scheme was intended to remedy the natural progression towards centralized power.
So, why the inverse relationship we see today?
Freedman sets out to answer this question.
In A Less Perfect Union (Broadside Books 2015), Freedman recounts this erosion in vivid detail. Starting with the history of federalism, Freedman explains the appeal of decentralization, an intentional strategy to stay the abuse of power and keep political accountability local. And yet, this very quality has been the bane of federalism – and a sticking point for statists – since the very beginning.
From the creation of the Union to the present, Freedman’s leaves no doubt that states’ rights have been in constant danger. Specifically citing the Progressive Era Freedman writes;
“The victories won by the so-called Progressives in that year signaled a permanent move away from states’ rights and toward federal power. World War I and Prohibition would accelerate this trend, which culminated in the New Deal’s consolidation of federal power under the guise of ‘cooperative federalism.’ Americans began 1913 as citizens of their states; by the end of the year, they were well on their way to becoming subjects of a national government.”
Freedman acknowledges the phrase states’ rights earned a negative connotation, in large part because of southern Democrats. Some southern states did defend segregation, even citing the Kentucky and Virginia Resolutions as their moral backing.[MS1] Freedman does not balk at this challenge, explaining that policies southern Democrats were “defending”in fact evolved out of progressive federal policy instituted by the Wilson administration.
“Within six months of Wilson’s inauguration, the Treasury and the Postal Service would be ordered segregated; other parts of the civil service would soon follow. One black clerk had to work in a specially constructed cage to avoid contact with white colleagues. Wilson also approved the introduction of Jim Crow laws in the District of Columbia.”
In fact, as Freedman shows, states asserted their power more stringently (and successfully) in cases against racial discrimination – specifically slavery – recounting the events in which Wisconsin proclaimed its own right to defy the Fugitive Slave Act. The state asserted the federal government could not mandate its citizens to cooperate with federal slave catchers. Notably, a Wisconsin newspaper editor named Sherman Booth incited a crowd to free runaway a slave, Joshua Glover, ultimately spurring the state to publicly denounce the law and demand Booth’s vindication. This overt and righteous defiance of federal law was seen as “noble” by Congressmen Benjamin Wade who proclaimed;
“A State in the last resort, crowded to the wall by a General Government seeking by the strong arm of its power to take away the rights of the State, is to judge of whether she shall stand on her reserved rights.”
A Less Perfect Union not only recounts historical battles, but also highlights more modern examples such as an episode in which the the feds raided a marine biologist for – get this – whistling at whales. NOAA claimed she violated “natural resource protocol.” Biologist Nancy Black, after a seven year battle, plea bargained and paid “$12,500 to NOAA and perform three hundred hours of community service.”
While mainly anecdotal in nature, these arguments make the book relatable to the average person. Freedman highlights alarming examples in which citizens are fined and jailed by the Feds for innocuous charges outside the scope of their powers, areas in which, according to the Constitution, should have been the state’s responsibilities to begin with. With each example Freedman cites, the reader is able to recognize just how marginalized the states have become.
Often, political theory books tend to leave the reader desiring more when it comes to solutions. Freedman, however, presents not only plausible but persuasive remedies. Most notably, by abolishing federal grants and cutting federal taxes proportionally, the states could again chart their own path – financially speaking. For example, the federal highway program commandeers state gas tax revenue and ultimately allocates it to many non-highway related programs. By keeping spending and revenue within the states, the people have more power in general.
The doctrine of anti-commandeering is also an “extremely powerful weapon,” according to Freedman. The idea that asserts the federal government can not force states to cooperate with federal law. If the feds enact a law, the onus (and funds) is on them. Backed by Supreme Court decisions such as New York v. United States, the states have more influence over their destiny than many are led to believe.
A Less Perfect Union gives even more inspiring solutions and overall is a comprehensive defense of federalism. By laying down the historical framework, leading with contemporary objections and concluding with a plan, Freedman encapsulates the States’ rights position handsomely.