Tuesday, April 14, 2009

Revisiting States' Rights

"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed,will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

The Declaration of Independence
In the wake of the Texas resolution affirming state sovereignty under the 10th amendment, it is important to revisit the reasons why the United States was formed in the first place. I do not mean to explore the reasons why the colonists sought independence from Britain, but to revisit the reasons that drove the states to passage of the U.S. Constitution in 1789. After the Declaration of Independence in 1776, the Continental Congress drafted the Articles of Confederation:
The Articles of Confederation and Perpetual Union, commonly referred to as the Articles of Confederation, was the first constitution of the thirteen United States of America. The Second Continental Congress appointed a committee to draft the 'Articles' in June 1776 and proposed the draft to the States for ratification in November 1777. The ratification process was completed in March 1781, legally federating the sovereign and independent states, allied under the Articles of Association, into a new federation styled the "United States of America". Under the Articles, and the succeeding United States Constitution, the states retained sovereignty over all governmental functions not specifically relinquished to the central government.
At this time, unlike today, each state was effectively like its own country. After the end of the Revolutionary War in 1782, the states continued to coexist under the Articles of Confederation. There were many problems that resulted from this arrangement related to commerce, legal disputes over land and contracts, the maintenance of a military, and how best to deal with foreign relations which prompted activists known as "the federalists" to advocate for a new constitution that would give the federal government more power. Naturally, there were grave concerns that any federation of the states might lead to the kind of tyranny the colonists had just fought in the form of the British monarchy.

In a previous
post ("It will wait upon the ladies at their toilett...") I wrote the following:
Some of the greatest writing in the history of political science occurred between 1787 and 1789 during the debate over the ratification of the federal Constitution. A series of famous essays known as the Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay and expounded the principal arguments in favor of it. These writings have provided perhaps the most important primary source for constitutional interpretation. Not as widely known but just as important are the Anti-Federalist Papers, a collection of writings and speeches opposed to ratification authored by among others Robert Yates, Richard Henry Lee, George Clinton and Patrick Henry. Quoting the link:

"[The Anti-Federalist Papers] contain warnings of dangers from tyranny that weaknesses in the proposed Constitution did not adequately provide against, and while some of those weaknesses were corrected by adoption of the Bill of Rights, others remained, and some of these dangers are now coming to pass."

I recommend The Anti-Federalist Papers and the Constitutional Convention Debates edited by Ralph Ketcham to be read alongside the Federalist Papers (this link is an excellent way to understand the chronology and read the pros and cons). As I argued in my previous post, the writers of the Anti-Federalist Papers were incredibly prescient. In light of all that we know and although this may land me on the federal government's watch list, the entire purpose and function of the federal government needs to be revisited. If it is indeed necessary to have a federation of the states, the U.S. Constitution is in dire need of amendments to once again properly affirm and delimit the power of the federal government which has now clearly, egregiously, and dangerously overstepped the limited role for which it was intended by the Founders and by any rational standard of individual freedom.

Hopefully, with the action taken by Texas, a general movement towards reassessing the function of the federal government vis-a-vis the states will begin.

10 comments:

madmax said...

"If it is indeed necessary to have a federation of the states..."

This is an interesting comment. Could you elaborate on it. I often wonder if it is necessary to have different states at all. What was Ayn Rand's quote, fifty dictatorships instead of one?

Doug Reich said...

Madmax,

Thanks for the comment. I was questioning whether we need a federal government at all and arguing that we need to reconsider and clearly define its role.

From 1776 through 1789, each of the states was independent although federated under the Articles of Confederation and there was a lot of resistance to the idea of a strong central government. The federalists argued that you could have a strong central government that would not lead to monarchy/tyranny. The anti-federalists were not convinced and foresaw much of what is happening now. At least they got the bill of rights added. I tend to agree that you "could" have a central government that does not turn into tyranny but as we have seen, it appears to be very difficult even under the ingenious system devised by the Founders.

So, primarily, I'm arguing that the anti-federalist and federalist arguments should be revisited with all that we know.

Someone might say, well how would it be any different if we had 50 states and I would answer: at least you would have some choices and there would be some competition. Of course, the fundamental solution is changing the culture philosophically so that the current constitution would be interpreted properly. If the culture is bad you would likely just have 50 really bad governments. This is not the ultimate solution by any means. I'm simply arguing as a practical matter, even under in a relatively good culture, not allowing the possibility of a strong central government is probably a good idea. Even if you are disciplined eater, not keeping candy in the house is a good idea.

In the end, the constitution was a good idea as the states need some governing document to serve as a means to settle disputes and provide for defense, but it was fatally flawed in many ways and yielded way too much power to the federal government. I don't think we need to throw it out but it would need to be amended to very clearly delimit the federal government's role. The "general welfare" clause, the ability to levy taxes, to coin money, etc. would all have to be clearly defined and delimited or changed.

I think the states passing these resolutions affirming the 10th amendment is a great start and is a wake up call. We definitely need a rethink of why the states federated and this could serve as a platform to argue for the proper role of a federal government: the protection of individual rights not as a systematic violator.

Hope this helped and would be interested in other's thoughts

Monica said...

Great post, Doug. At this point I'm open to the idea that states asserting their rights could help at least slow the oncoming onslaught of tyranny.

madmax said...

Doug,

Interesting argument. I have to digest that for awhile because until recently I would have labeled that a libertarian argument but now I am not so sure. In light of what is happening, there is merit to it.

Oh, and regarding the Federal Government's watch list you linked to, Charles Johnson at LGF has argued that it was started under the Bush Administration and that the Right-Wing blogosphere is overreacting to it. Here is the link:

http://littlegreenfootballs.com/article/33364_About_That_DHS_Report_on_Right-Wing_Extremism/comments/#ctop

I think Johnson is being too soft but his point is worth considering.

Doug Reich said...

Consider Texas - after the Republic of Texas won its independence from Mexico, it joined the United States. At that time (1840's), before income tax, welfare state, etc. it had far more to gain by joining. If it were considering joining today, I believe it would reach the opposite conclusion.

Texas has no state income tax and if it seceeded could become if its not already one of the biggest economies in the world. I'm sure it could raise a pretty decent army too. If it did so, I would probably move there tomorrow as would a vast majority of American corporations.

My point is that if I lived in Texas, I would be wondering why my state is even a part of this union and why I am paying 40% or more of my income to Washington D.C.. What am I getting in return?

Of course, California is quite different and appears to have socialist pretensions.

So even in a bad culture you have fairly wide differences between individual states - I think it would be fairly hard for one state to be an egregious violator of individual rights since it would see a mass exodus of its population. It would serve as a check to some extent.

I'm not arguing that there should not be a federation but that the federation should be severely limited mostly to a military alliance and a judicial system to deal with interstate issues.

I hold that talk of secession and state's rights FOR THE RIGHT REASONS is a very good thing. I would like to hear some more views on this.

Myrhaf said...

I react to Governor Perry's more recent statement that Texas can secede if it wants to:

http://www.newclarion.com/2009/04/loose-talk/

Beth said...

Please keep in mind that states do not have rights. People have rights. The question seems to me to be what system best protects individual rights. At the time of the Constitutional Convention, property rights were being violated by the lack of coordination between the states. Interstate contracts were not supported. Commerce across state lines was obstructed by protectionist measures. Foreign policy (defense and trade) was weakened by the states acting independently, and often at cross purposes. Clearly there are legitimate gains to be made by a stronger, more uniform central government.
But with concentration of power also comes the risk of its abuse--which we are clearly seeing today as our governments, both federal and state, have become violators of individual rights.

I think the push needs to be not federal vs. states rights but the realignment of both to the protection of individual rights.

In regards to good reading on exploring the proper extent of government power, the Federalist and Anti-Federalist Papers are a good source. Others include the Kentucky and Virginia Resolutions of 1798, the opinions of John Marshall in Marbury v. Madison and McCulloch v. Maryland as well as the discussions which occurred around states rights and annulment pre-Civil War such as works by Calhoun and Andrew Jackson. There was one piece in particular by Jackson which dealt with the importance of the rule of law which I have been trying to relocate and will pass along if I can find it.

One of the best debates on the "necessary and proper" functions of government that I remember reading a few years ago were the reports prepared for President Washington by Thomas Jefferson and Alexander Hamilton on the matter of the national banks. Even though I agreed with Jefferson that it is not within the proper scope of government to have a national bank, Hamilton actually presented the better argument....which is probably why Washington went along with him. Helps to highlights the fact that you need more than the proper conclusion to effectively defend the right ideas.

One last reminder is an essay by Binswanger, "The Constitution and States Rights" in the Dec. 1987 Objectivist Forum. it's been a while since I read it, but I remember it as definitely worth while.

Doug Reich said...

Beth,

Thanks for your comment and I agree totally with your statement:

"I think the push needs to be not federal vs. states rights but the realignment of both to the protection of individual rights."

From the various posts I have read I believe people are discussing several different issues. It seems that the traditional notion of states' rights is the absurd idea that a state can do anything it wants if its people vote for it. For example, if 51% of Texans think there should be slavery then it is passed, etc....You are absolutely right that the fundamental issue is individual rights and how best to realize that goal, not a states' rights to subjugate its people by unlimited majority rule.

With respect to Perry's statements, I think the context was different. In this case, he was challenging the federal government for the right reasons, i.e., I think Perry is right to challenge the enormous and oppressive expansion of the federal government and to imply that it is possible for Texas to secede. He was not proposing it formally, merely intimating secession as a possibilty if trends continue. As long as he challenges the federal government for the proper reasons, i.e., continues to focus on the abrogation of individual rights, I believe he is right to question the continuance of statehood. If he meant that Texas would secede in order to implement or perpetuate a violation of rights, e.g., as Texas did in 1861 when it seceded in order to continue slavery, I would oppose him vehemently. However, in this context, I agree with him and would urge other state governors to forcefully condemn the expansion of the federal government and to affirm a state’s right to secede from the union if the federal government were to radically step beyond its enumerated powers as set forth in the U.S. Constitution or to flagrantly violate the Bill of Rights. I agree that such a statement should not be made lightly but if put into the proper context I think it is reasonable to do so.

C. August said...

I'm just now seeing this post. In light of what I just wrote today, I think it might of interest to those who commented here.

I agree strongly with Beth that the core of the issue, whether we talk of states or a federation of states, is that individual rights be paramount. Honestly, I find the state's rights v. federal govt. debate almost superficial at times (though I recognize its immense historical significance) because it ignores the individual rights fundamental so often. I see why they were arguing the way the were, but I can't side with either because they were both missing something. (not to demean the Founders, but it's like trying to side with the Left or Right today, while holding your nose)

Today in the WSJ, a constitutional law scholar put forth a "new federalism" argument to try and check the power of the federal government by calling on the states to push for a new Constitutional amendement. I address it, calling on Reisman's arguments in favor of long-term political and educational pro-capitalism activism from his treatise on capitalism. I would be very interested in hearing criticism, constructive or otherwise, about my points.

Can a Federalism Amendment Lead to Liberty?

Beth said...

Interesting quote today fro Liberty Quotes. i don't have time to follow up on it right now but if time later I will be curious to see what else this man had to say on the division of powers.

"That distinct sovereignties could exist under one government, emanating from the same people, was a phenomenon in the political world, which the wisest statesmen in Europe could not comprehend; and of its practicability many in our own country entertained the most serious doubts. Thus far the friends of liberty have had great cause of triumph in the success of the principles upon which our government rests. But all must admit that the purity and permanency of this system depend on its faithful administration. The states and the federal government have their respective orbits, within which each must revolve. If either cross the sphere of the other, the harmony of the system is destroyed, and its strength is impaired. It would be as gross usurpation on the part of the federal government, to interfere with state rights, by an exercise of powers not delegated; as it would be for a state to interpose its authority against a law of the union."
-- Justice John McLean
(1785-1861) U.S. Congressman for Ohio (1813-16), U.S. Postmaster General, Associate Justice of the U.S. Supreme Court (1830-61), presidential candidate for the Whig and Republican parties
Source: Craig v. Missouri, 4 Peters 410 (1830) [29 U.S. 410, 464]