-Caveat Lector-
The Free Market
August 1995
Volume 13, Number 8
Toward Real Federalism
Clyde N. Wilson
Just a few years ago we had a bicentennial celebration of the Constitution.
Republicanism and federalism, the two most salient features of the
Constitution, were never mentioned. Instead we had a glorification of
multiculturalism and the central state.
Federalism is one of the least understood, both theoretically and
practically, of all political forms. Today we hear talk of restoring
federalism and decentralized government. But we must beware of phony forms of
top-down federalism that will be invented by cornered politicians.
Federalism is not when the central government graciously allows the states to
do this or that. That is just another form of administration. True federalism
is when the people of the states set limits to the central government.
Fundamentally, federalism means states rights. The cause of states rights is
the cause of liberty. They rise or fall together. If we had been able to
maintain the real union of sovereign states founded by our forefathers, then
there would not be, could not be, the imperial central state that we suffer
under today.
The loss of states rights is coterminous with the rise of the American
empire, where a vast proportion of the citizens' wealth is engrossed by
bureaucracy; where our personal and local affairs are ever more minutely and
inflexibly managed by a remote power; where our resources are squandered
meddling in the affairs of distant peoples.
That happy old Union was a friendly contract--the states managing their own
affairs, joined together in matters of defense, and enjoying free trade among
themselves. Indeed, enjoying free trade with the world, because the
Constitution, as is sometimes forgotten, required all taxes to be uniform
throughout the Union and absolutely forbade taxation of the exports of any
state. The federal government was empowered to lay a modest customs duty to
raise revenue for its limited tasks, but otherwise had no power to restrict
or assist enterprises.
That is what the States United meant to our Founders, a union of mutual
consent and support. It did not mean a government that dictated the
arrangement of every parking lot in every public and private building in
every town, and the kind of grass that a citizen must plant around his boat
dock.
It did not mean the incineration of women and children who might have aroused
the ire of a rogue federal police force, unknown to the Constitution and
armed as for a foreign enemy. It did not mean that billions would be spent
restoring oriental despots to their thrones in distant lands. Had George
Washington been confronted with any of these things, he would have reached
for his sword.
We know the problems. Where should we look for solutions? Thomas Jefferson
gives us the answer: our most ancient and best tradition, states rights. In
his first inaugural Jefferson remarked that in most ways Americans were very
happily situated, and then asked, "What more is necessary to make us a happy
and prosperous people? Still one thing more, fellow citizens---a wise and
frugal government, which shall restrain men from injuring one another, which
shall leave them otherwise free to regulate their own pursuits." This
government "shall not take from the mouth of labor the bread that it has
earned. This is the sum of good government."
But how to preserve this form of government? What should we do, or not do?
Jefferson answered: preserve elections (not the party system), maintain equal
justice under the law, rely on the militia, avoid debt, maintain the freedom
of speech, religion, and trial by jury, avoid entangling alliances. And most
important: "the support of the state governments in all their rights, as the
most competent administrations for our domestic concerns and the surest
bulwarks against anti-republican tendencies."
There is a large sophistical literature which tells us that states rights was
for Jefferson just a temporary expedient for other goals. This is false. For
his own generation and several following, it was understood that the state
sovereignty of the Kentucky resolutions was Jefferson's primary platform as
an American leader.
John C. Calhoun, speaking in exactly the same tradition a generation later,
said: "We contend, that the great conservative principle of our system is in
the people of the States, as parties to the Constitutional compact." Without
"a full practical recognition of the rights and sovereignty of the States,
our union and liberty must perish."
Why are states rights the last best bulwark of our liberties? It is a
question of the sovereignty of the people---in which we all profess to
believe. Every political community has a sovereign, an ultimate authority.
The sovereign may delegate functions (as the states did to the federal
government) though not alienate authority. It may not always rule from day to
day, but it is that place in the society that has the last word when all else
is said and done.
All agree that in America the people are sovereign. But what do we mean by
people? How do we know when the people have spoken? A simple electoral
majority, which can shift the next day, is not enough to determine questions
of sovereignty. In American terms the government of the people can only mean
the people of the states as living, historical, corporate, indestructible
political communities.
The whole of the Constitution rests upon its acceptance by the people acting
through their states. The whole of the government reflects this by the
representation of the states in every legitimate proceeding. There is no
place in the Constitution as originally understood where a mere numerical
majority in some branch of the federal government can do as it pleases.
Even today, three-fourths of the states can amend the Constitution---that is,
they can abolish the Supreme Court or the income tax, or even dissolve the
Union. In no other way can we say the sovereign people have spoken their
final word. States rights is the American government, however much in
abeyance its practice may have become.
The alternative to state sovereignty, as Calhoun pointed out, is to allow the
final say-so to the black-robed deities of the Court, who go into their
closets, commune with the gods, and tell us what our Constitution means and
what orders we must obey, no matter how absurd their interpretation may be.
But this is to abandon the sovereignty of the people, that is, to abandon
democracy or republicanism and to abandon constitutional government for
oligarchy---and an oligarchy based upon mystification rather than reason. The
sovereignty of the people, in which we all believe, can mean nothing except,
purely and simply, the people of each state acting in their sovereign
constitution-making capacity.
The question is not altered by the fact that the Union has been expanded to
fifty states. The Founding Fathers wisely made the Union expansible. The
Congress may admit new states (or not). But the federal government does not
create a state. States create themselves. This is as true of the new states
as the old, of Montana as of South Carolina--if we believe the people are
sovereign.
However wildly irrelevant it may seem today, the idea of states rights was a
given to our forefathers. Centralizers were always on the defensive and
always compelled to conceal their intent. The United States were universally
spoken of in the plural. It was clearly understood that the Bill of Rights
meant the states binding the federal government to stay out of certain areas.
("Congress shall make no law....")
The states rights interpretation of the Constitution is a living heritage of
great power, absolutely central to the understanding of the American liberty.
Lost and stolen as the idea may be, American history cannot be understood
without it.
The only way to preserve civil liberty is to check government power. The only
way to checkpower is to disperse and divide it. The federal government will
never check itself. That is the purpose of federalism. It must be checked by
the states. And this ultimately is of no avail unless it is backed by the
right of secession. Curiously, recognition of the right of secession often
obviates its use, because where it is a real possibility, Power is motivated,
has incentive, to check itself and be responsible.
States rights has fallen into disuse not because it is unsound in history, in
constitutional law, or in democratic theory. It remains highly persuasive on
all these grounds to any honest mind. It has fallen into disuse because it
presented the most powerful obstacle to the consolidation of irresponsible
power---that "consolidation" which our forefathers decried as the greatest
single threat to liberty.
For that reason states rights had to be covered under a blanket of lies and
usurpations by those who thought they could rule us better than we can rule
ourselves. At the most critical time, the War Between the States, it was
suppressed by force and the American idea of consent of the governed was
replaced by the European idea of obedience. But force can only settle
questions of power, not of right.
States rights are historically sound, constitutionally sound, ethically
sound, sound from the point of view of democracy. Where they fall short is
simply in the realm of political will. For a long time now, a century at
least, the course of history has been moving in the direction of
"consolidation," the gathering of concentrated power in one central,
irresponsible, imperial government.
That can change. The people of the states have the right to protect
themselves against an out-of-bounds federal government and to determine when
the proper bounds have been passed---to interpose their sovereignty, as
Jefferson said, as Madison said, as Calhoun said.
We now see, all over the Western world, a ferment of people against
consolidation, in favor of regionalism, devolution, secession, break-up of
unnatural states, the return to historic identities in preference to
universal bureaucracies. There is reason to believe that the consolidation
phase of history may be coming to an end.
We may be ready for a new flowering of freedom for families and communities.
The great periods of Western history have not been those of powerful states
but of multiple and dispersed sovereignty--flourishing liberty for small
communities. We know that such freedom equals creativity in wealth, art,
intellect, and every other good thing. And we now have an asset the Fathers
did not, the great comprehensive wisdom of the Austrian School of economics,
which is federal in its essential spirit.
All over the Western world people are thinking again of liberty---the most
characteristic and unique of Western values---are doubting the central state
that has been worshiped since the French Revolution.
It would be a shame if, in this world-historical time of devolution,
Americans did not look back to an ancient and honorable tradition that lies
readily at hand. To check power, to return the American empire to
republicanism, we do not need to resort to the drastic right of revolution.
We have in the states ready-made instruments. All that is lacking is the
will. Our goal should be the restoration of the real American Union of
sovereign states in place of the upstart empire under which we live.
--------------------------------------------
Clyde Wilson teaches History at the University of South Carolina
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