“The essence of Government is power; and power, lodged as it must in human hands, will ever be liable to abuse.”
-James Madison, Speech in the Virginia constitutional convention, Richmond, Virginia, December 2, 1829
Pessimism is popular. Reading Twitter and social media, you would think the Republic is coming to an end. Imagine that – our grand, 250-year experiment in representative democracy, snuffed out by an ambiguous confrontation involving some teenagers at the Lincoln Memorial.
The defining trend of modern politics is the sudden rush to judgment by partisans of all stripes to find, feather, and tar the ideal scapegoat in order to further their agenda. We saw it with the Kavanaugh hearings. We see it with Trump’s demonization of illegal immigrants. And now we are seeing it with the Covington Catholic debacle.
We are all tribalists now. If you haven’t picked a side, we’re told, it’s only a matter of time before the pressure will force you to do so. Of course, the founders of this country saw this coming and built a system in which these factions were supposed to check one another. We need not be defined as a nation by any single faction.
James Madison defined a faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
Behind all of the vitriol on Twitter and the media pretending to be neutral observers, we see a brute fact revealing what politics is really about. Government, Madison reminds us, is power—the ability to force one’s will on another group of human beings. Nathan Phillips and Nick Sandmann are just pawns in a broader power struggle that intensifies as more and more decisions are made in Washington D.C. rather than at the state and local level where they were supposed to be made all along.
When power solidifies in Washington D.C., there is a demonstrative erosion of freedom. When people feel freedom disappearing, they feel powerless. This brings out the worst in them.
I have painfully concluded that Washington has abandoned its limited but essential constitutional mission of protecting our rights to life, liberty, and pursuit of happiness in favor of growing its own grotesque and cancerous power. The transfer of power from local to remote evolved from a combination of ill-advised Constitutional amendments, and some unfortunate Supreme Court cases.
Of course, somebody has to write the laws. Fortunately, states remain – as Justice Louis Brandeis suggested – the “laboratories of democracy,” giving citizens the ability to “vote with their feet” in search of more limited government and greater control over their lives. The founders always intended that most power over citizens should reside in the states and cities.
Thus, a Californian who opposes a “nanny state” government of high taxes, and wealth transfers, can move to Texas. With most political power held by a federal government, the choice, if you can call it that, would be moving to another country. This is a much more significant decision than moving to Austin, Texas from California.
I remain optimistic because of the progress being made – sometimes quickly, sometimes slowly — in the “several states.” Happily, states are rediscovering their historic powers affirmed by the Ninth and 10th Amendments. We see this in areas of drug policy, criminal justice reform, school choice, eminent domain, and even immigration here in my home state of California. Washington is more remote and aloof to Americans than England was several centuries ago to the colonists. States are responding to the needs of their citizens exactly as the founders intended.
Federalism should not be conflated with the misleading agenda of “states’ rights,” which has often been used to justify even greater violations of individual liberty than federal encroachments. After all, states have no rights; only people do. (The states surrendered the most important “right” they had when they ratified the 17th Amendment). Political powers promote the preservation of liberty when they are decentralized – beginning with the devolution from the federal government to states and localities.
There are few policies beyond those which protect our natural rights, which must or should be imposed nationally. We will not lose our nationhood with states dictating the speed limit, drinking age, minimum wage, healthcare policy and the like. When we need to be one nation, such as in time of war, soldiers from New York would still fight alongside soldiers from Iowa. They might not understand nor agree with each other’s politics, but there wouldn’t be any hatred because the guy from New York would not be imposing his will on the conservative from Iowa.
This, in short, is the new federalism – federalism 2.0. While it is not a panacea, it is what the founders envisioned. Rather than make America great again (again?), my hope is to make America America again. Until we restore constitutional limits to federal power, the power struggles will only get uglier.
Bob talks about the issues that affect our lives on a daily basis from a purely libertarian standpoint. He believes in small government, fewer taxes, and greater personal freedom.
He is author of two books, Secret Sauce: The Founders' Original Recipe for Limited American Democracy, and Power to the States: How Federalism 2.0 Can Make America Governable Again.
Bob has been practicing finance law for 50 years, is listed in “The Best Lawyers In America,” and has been awarded the highest rating for Ethical Standards and Legal Ability by Peer Reviewed Martindale Hubbell. He holds a law degree and a Master’s degree in Law from NYU School of Law and is a Charter Fellow in the American College of Commercial Finance Lawyers, Past President of the Association of Commercial Finance Attorneys, Past Chair of the 1,500 member Commercial Finance Committee of the Business Law Section of the American Bar Association, and Past Chair of the California State Bar UCC Committee.
He has been retained as an expert witness in more than 25 cases dealing with finance law. As an entrepreneur, he created and now manages Lenders Funding LLC, which makes and participates in loans to small business.
Bob’s passions are American history, entrepreneurism, libertarianism, and his number one fan and significant other Anne.