Though Cato’s deed is admirable, nothing could be more naive—or futile. Despite all efforts, the federal government has increased its control over the American educational system, decade by decade, and it is no coincidence that fewer and fewer American students have been educated in the virtues of limited constitutional government. It is simply not in the federal government’s self-interest to teach the public that it is advantageous to place limits on the government’s powers.
It must be recognized that there is a powerful constituency for ignoring the constitutional limits on governmental powers, and there is no well-organized pressure group of any consequence in favor of it. All special-interest groups seeking a share of federal largesse work diligently, day in and day out, to urge the government to abandon or ignore constitutional limits and award them subsidies. In contrast, the general public is widely dispersed and rarely ever well organized politically. The public would benefit most from constitutional government, but costs overwhelm the effort to coalesce the masses into an effective political pressure group.
Consider the minor example of farm subsidies. One form of such subsidies is price supports on sugar, which are laws that prop up the price of sugar to three to four times the world price. Sugar, and everything made with it, is more expensive to American consumers for no other reason than sugar farmers are fond of plundering their fellow citizens, and are very well organized politically.
For such plunder to end, the individual American consumer would have to spend time, effort, and money to convince a majority of Congress to repeal the sugar price support law. Needless to say, few average citizens would take on this monumental task for the admittedly modest benefit. There are literally thousands of similar programs, none of which are permitted by the Constitution, that are the result of a strong political group legally plundering a weak one, and the American public bears the costs. This is political reality; it is mere fantasy to believe that the general public—in a nation of almost three hundred million people—will someday rise up and demand a return to strict constructionism.
Modern-day strict constructionists are unaware of how the founding fathers intended for the Constitution to be enforced: by the citizens of the free and independent states, not by the federal judiciary or by another organ of the federal government. The Constitution sought not only to limit the federal government by restricting its reach to a narrow list of “enumerated powers” (Article I, Section 8), along with the system of checks and balances, but also with the much more important doctrine of divided sovereignty. That is, the citizens of the states were to have an equal voice in constitutional matters. As Johns Hopkins University political theorist Gottfried Dietze wrote in America’s Political Dilemma: “Federalism, instituted to enable the federal government to check oppressions by the government of the states, and vice versa, appears to be a supreme principle of the Constitution” (emphasis added).1
In other words, the central government was given certain abilities to police attempted infringements upon the liberties of the people by the state governments; but at the same time, the Tenth Amendment reserved to the states, and their citizens, the right to police or veto unconstitutional or despotic proclivities of the central government. If the American people were to be sovereign over their government, and if the Constitution was to be a meaningful document, this could only be accomplished by the actions of citizens as members of political communities organized at the state and local levels. This is what was meant by “divided sovereignty.”
But the founding fathers’ system of divided sovereignty, championed by James Madison, was destroyed in 1865. As Professor Dietze further observed: “[B]efore the Civil War … the nature of American federalism was still a subject of debate. The outcome of the Civil War ended that debate. The Nationalists emerged as victors. National power increased as the twentieth century approached [along with] the disappearance of states’ rights.”2 That period was subsequently characterized by “an increasing interference with economic freedom” and “constitutes a constitutional revolution that can well be termed a reversal of the Revolution of 1787.”
With the system of divided sovereignty destroyed, the federal government made itself the sole arbiter of constitutionality, through the U.S. Supreme Court. Not surprisingly, and as the Jeffersonians warned, the federal government has used this role to decide that there are, in fact, no real limits to its powers. Consequently, Americans are no longer sovereign over their government.
The principle of federalism was essentially a dead letter after 1865.
Indeed, former champions of extraconstitutional governmental powers, such as former President Woodrow Wilson, have long celebrated this fact. Before becoming president Wilson was a political science professor at Princeton University and wrote a book entitled Constitutional Government in the United States. In it he approvingly proclaimed that “The War between the States established … this principle, that the federal government is, through its courts, the final judge of its own powers.”3 This fox-guarding-the-henhouse theory of the Constitution has been a disaster for America, for reasons the founding fathers—especially Jefferson—understood all too well. Indeed, the Jeffersonians in American politics warned against such an outcome for several generations.
THE LONG-FORGOTTEN JEFFERSONIAN TRADITION
The principle of dual sovereignty was perhaps best expressed, historically, in the applications of the Kentucky and Virginia Resolves. It is important that in the Kentucky Resolve Jefferson referred to the “United States” in the plural, which is how it is referred to in all of the founding documents, including the Declaration of Independence, Treaty with Great Britain, Articles of Confederation, and the Constitution. The obvious reason for this was the clear understanding by the entire founding generation that the free and independent states were part of a compact of states and did not constitute one consolidated empire. Indeed, they fought a war of secession against just such an empire. To then turn around and create a similar empire of their own would have been thought to be the height of absurdity. The use of the words United States in the singular did not become acceptable until after 1865, when the voluntary union of the states was overthrown by a bloody and violent revolution.
After Jefferson’s death in 1825, his states’ rights tradition was carried on effectively for a quarter of a century most forcefully by John C. Calhoun, who served as vice president of the United States, secretary of war, and U.S. senator from South Carolina. His book, A Disquisition on Government, is one of the most insightful political treatises ever written by an American.
Calhoun agreed that a written constitution was desirable (as opposed to Britain’s unwritten constitution), but he correctly predicted that those who favored its enforcement would eventually be overpowered, politically, by the “party of government.” “At first they [the strict constructionists] might command some respect, and do something to stay the encroachment,” he wrote, “but they would, in the progress of the contest, be regarded as mere abstractionists; and, indeed, deservedly, if they should indulge in the folly of supposing that the party in possession of the ballot box and the physical force of the country, could be successfully resisted by an appeal to reason, truth, justice, or the obligations imposed by the constitution.… The end of the contest would be the subversion of the constitution.”4
Calhoun forecast that all of the constitutional restrictions on government would ultimately be effectively annulled or ignored and the government would be converted into one of “unlimited powers.” He was certainly right. Calhoun, like Jefferson, believed that it was essential for the citizens of the states to possess a “negative power” over the central government, such as the power to decide whether federal laws are constitutional or not. His famous proposal for a “concurrent majority” was designed to allow the citizens of particular states to make these types of decisions since they were, after all, sovereign; the federal government was the citizens’ agent or servant prior to 1865, not their master.
THE JEFFE
RSONIAN CONSTITUTION
The Jeffersonians’ states’ rights view of the Constitution prevailed until 1865. The best presentation of this position is St. George Tucker’s book, View of the Constitution of the United States. Tucker was the professor of law at William and Mary College who took the place of Thomas Jefferson’s (and John Marshall’s) teacher, George Wythe (a signer of the Declaration of Independence), when Wythe retired.5 Tucker served with distinction in the American Revolution, where he was wounded in battle; became a successful lawyer afterward; adopted a young John Randolph when he married his widowed mother; and authored one of the first plans for the abolition of slavery in Virginia in 1796.
Tucker warned that any confederacy of states would become a despotism if the central government ever ceased being merely the agent of the states that created it. “The union of the SOVEREIGNTY of a state with the [central] government,” he wrote, “constitutes a state of USURPATION and absolute TYRANNY, over the people.”6 Moreover, if the “unlimited authority” of the central state were ever to extend so far as to “change the constitution itself, the government, whatever be its form, is absolute and despotic.…”7 Tucker was obviously anticipating what modern-day conservatives bemoan as “judicial activism,” another legacy of Lincoln’s war.
It was not just the system of checks and balances that was intended to protect the people from tyranny, Tucker explained. It was also “the nature and extent of those powers which the people have reserved to themselves as the Sovereign.”8 Freedom depended crucially on states’ rights and divided sovereignty.
Furthermore, Tucker believed that the “doctrine of nonresistance against arbitrary power and oppression” as exercised by a central government “is absurd, slavish, and destructive to the good and happiness of mankind.”9 Having been created by the citizens of the states, a free government must be bound to the Constitution “by its creators, the several states in the union, and the citizens thereof.” Otherwise, despotism and arbitrary tyranny are inevitable, Tucker warned. And he was right.
To Jeffersonians, states’ rights was the most important principle of the U.S. Constitution.
Tucker’s contemporary John Taylor, a U.S. senator from Virginia, was another Jeffersonian who mocked the idea that the founders would have entrusted the U.S. Supreme Court to be the sole judge of constitutionality and, subsequently, of the limits of the government’s own powers. “Being an essential principle for preserving liberty,” Taylor wrote in Tyranny Unmasked, the Constitution “never could have designed to destroy it, by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments.”10 After fighting a bloody revolution and creating a new government that would hopefully protect Americans’ natural rights to life, liberty, and property, the notion that these same men would then turn around and entrust everyone’s liberty to five or six politically appointed lawyers was a sheer absurdity to Taylor and to other Jeffersonians.
STATES’ RIGHTS VERSUS TYRANNY DURING
THE TWENTIETH CENTURY
States’ rights might have been essentially destroyed by Lincoln’s war, but no war can eliminate ideas from the minds of the people completely. Though many contemporary conservatives and libertarians do not seem to appreciate the importance of state sovereignty in the original federal system, quite a few prominent Jeffersonian scholars during the twentieth century did. One such scholar was Frank Chodorov, onetime editor of the magazine The Freeman and an icon of the “Old Right.” In his book The Income Tax: Root of All Evil, Chodorov wrote that “The real obstacle [to tyranny] is the psychological resistance to centralization that the States’ rights tradition fosters. The citizen of divided allegiance cannot be reduced to subservience; if he is in the habit of serving two political gods he cannot be dominated by either one.… No political authority ever achieved absolutism until the people were deprived of a choice of loyalties.”11 It was not by accident that Stalin, Mussolini, and Lenin liquidated any and all competing authorities, Chodorov noted, before consolidating their power.
To Chodorov dual sovereignty, or what he called “divided authority,” was nothing less than “the bulwark of freedom” for freedom means “the absence of restraint.” And “government cannot give freedom, it can only take it away. The more power the government exercises the less freedom will the people enjoy. And when government has a monopoly of power the people have no freedom. That is the definition of absolutism—monopoly of power.”
Americans who wish to understand their history should take heed of this statement in light of the fact that, after the conclusion of Lincoln’s war, the Republican Party enjoyed a virtual monopoly of power for almost fifty years. Even when the one non-Republican, Grover Cleveland, was president, Republican policies prevailed.
The free-market Austrian economist Ludwig von Mises, teacher of Nobel laureate Friedrich A. Hayek (author of the infamous book The Road to Serfdom), is another writer who, in the age-old Jeffersonian tradition, understood the importance of states’ rights to freedom. Commenting on the effects of government interventionism that was spawned in the United States in the post-1865 era, and in Switzerland during the same period, Mises wrote in Omnipotent Government:
All of the worst tyrants of the twentieth century were committed enemies of “divided sovereignty,” otherwise known as federalism or states’ rights.
New powers accrued not to the member states but to the federal government. Every step toward more government interference and toward more planning means at the same time an expansion of the jurisdiction of the central government. Washington and Berne were once the seats of the federal governments; today they are capitals in the true sense of the word, and the states and cantons are virtually reduced to the status of provinces. It is a very significant fact that the adversaries of the trend toward more government control describe their opposition as a fight against Washington and against Berne, i.e., against centralization. It is conceived as a contest of states’ rights versus the central power (emphasis added).12
When Mises says that Washington and Berne were once the seats of the “federal” governments, he meant “federal” in the true sense of the word, namely, governments that were characterized by divided sovereignty, with states’ rights intact. These cities were merely the “seats” of the central governments that were created as agents of the free, independent, and sovereign states and cantons.
To Ludwig von Mises, the fight against governmental tyranny was fundamentally a fight against consolidated or monopoly government, exactly the kind of government that has existed in the United States since the late nineteenth century. This was also a theme of Hayek’s Road to Serfdom, and of another Old Right classic, Felix Morley’s Freedom and Federalism. Morley was the editor of National Review magazine for many years, and wrote that “Socialism and federalism [i.e., states’ rights] are necessarily political opposites because the former demands that centralized concentration of power which the latter by definition denies.”13
Economist Murray Rothbard was known before his death in 1995 as the “dean” of the free-market Austrian School of Economics. A student of Mises, he was once labeled “Mr. Libertarian” by Forbes magazine. As a young man barely out of college he wrote a May 11, 1949, letter to the headquarters of the States’ Rights Party in Jackson, Mississippi, that read: “Although a New Yorker born and bred, I was a staunch supporter of the [Strom] Thurmond movement.” But the problem with the Thurmond movement was that it was far too narrow, focusing excessively on what Rothbard called the “Civil Tyranny Program.” This program of federal “civil rights” regulation should be opposed, Rothbard said, “as an affront to property rights and freedom of association.” What was really needed was a national, as opposed to a regional, party to fight “the power hungry Washington bureaucracy.”14
Rothbard understood that all the talk coming out of Washington at the time of giving greater “civil rights” to minorities was primarily, if not exclusively, motivated more by a hunger
for power and money on the part of the Washington bureaucracy than by a concern for justice or humanitarianism. Indeed, when has justice and humanitarianism ever been the primary motivator of any government?
In addition to these writers, others, such as Nobel laureate economist James M. Buchanan, have also discussed how true federalism is talked about in political circles, but is essentially a dead letter absent the states’ rights of nullification and secession.
Vesting too much power in the central government has always been a recipe for tyranny and despotism.
In contrast, all of the worst tyrants of the past 150 years have been sworn enemies of states’ rights and divided sovereignty. Adolf Hitler mocked what he referred to as the “so-called sovereign states” of Germany in Mein Kampf.15 He condemned their “impotence” and “fragmentation” and lavishly praised Otto von Bismarck for all but abolishing states’ rights in Germany. This was supposedly a victory in the “struggle between federalism and centralization.”16 Like his nemesis Ludwig von Mises, who fled Austria for America at the outset of World War II hours before the Gestapo broke into his Vienna apartment, Hitler understood that the chief roadblock in the “struggle” for totalitarian socialism (whether it’s called Nazism, communism, fascism, etc.) was federalism, states’ rights, and divided sovereignty.
To Hitler the complete abolition of states’ rights was essential for the establishment of “a powerful national Reich.”17 Indeed, an earlier generation of German statesmen created this governmental “fragmentation” for the same reasons the American founding fathers created their brand of federalism: to limit the despotic proclivities of any centralized and monopolistic German state.
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