What Keeps the States United?
The American polity is beset by seemingly intractable problems: widespread, long-term unemployment; stagnating income; wealth increasingly concentrated among the few; trillion-dollar annual deficits; interminable wars.
Constitutional liberties, dating back in some instances to Magna Carta, are being jettisoned, ostensibly to protect against terrorism. Through the National Defense Authorization Act, Congress has empowered the president to imprison without charges or trial any American whom he decides, based on secret evidence, is a threat to national security. Barack Obama and his attorney general claim the president has the right to execute summarily anyone in the world—not excluding Americans—without due process of law. The Pentagon has been lending unmanned drones to local and state law enforcement agencies to spy on citizens without search warrants.
The 2008 election was viewed by many as a repudiation of torture and other dangers to civil liberties supported by George W. Bush. Five years later Obama seemingly has doubled down on policies that he had condemned. Despite voter angst, America’s political institutions keep serving up more of the same. Public disapproval of Congress has lately been as high as 90-95 percent. The system is widely seen as “broken.”
According to Rethinking American Union for the Twenty-First Century, edited by Donald Livingston, those seeking a cure for America’s political dysfunction should consider a rarely mentioned topic, that of size and scale. The thesis of this collection of essays is that American government has grown too large and too centralized to be compatible with free, effective, or truly representative politics. The authors agree on the unacceptability of top-down government as practiced in this country: having 435 House members, 100 senators, nine Supreme Court justices, and one president rule more than 300 million people in one-size-fits-all fashion. The authors share the belief, dating back to ancient Greece, that, to be genuinely self-governing, republics must be small in population and territory, i.e., wholly unlike America. They consider ways to devolve political power to smaller, more manageable units of government. With varying degrees of persuasiveness, the authors address philosophical, political, moral, and constitutional issues bearing on such a task.
Livingston, in a thoughtful essay, presents several possibilities. One, suggested as a starting point for debate by the late George Kennan, architect of the U.S. policy to contain the Soviet Union, is to divide the Union into “a dozen constituent republics”: New England, the Middle Atlantic states, the Middle West, the Northwest, the Southwest, Texas, the Old South, Florida, Alaska, and three self-governing urban regions, New York, Chicago, and Los Angeles. Livingston concedes that Kennan’s idea “will cause some to panic,” but he insists that the idea of dividing America into several allied federations was shared by numerous early American leaders, including Thomas Jefferson, James Monroe, Henry Clay, and possibly James Madison.
Another scenario, which is perhaps closest to Livingston’s heart, would be to reconfigure the United States along the lines of David Hume’s notion of an ideal republic. Livingston points out that for Hume a small commonwealth is “the happiest government in the world” but “may be subdued by great force from without.” The solution is a large republic with “all the advantages both of a great and a little commonwealth.”
As summarized by Livingston, Hume imagined a large republic the size of Britain or France divided into 100 small republics, each of those divided into 100 parishes. The members of each parish meet annually to elect one representative, yielding 100 representatives in each small republic’s legislature. The legislature selects from among its members 10 magistrates to perform the executive and judicial functions of the republic and one senator to be its representative at the national capital. That yields 100 senators, from among which 10 are chosen to serve as the national executive and judiciary. Laws are normally proposed by the national senate and sent to the provincial republics for ratification. Each republic has one vote regardless of population.
In the United States a government modeled on Hume’s large republic would, writes Livingston, require abolishing the U.S. House of Representatives and transforming the state legislatures into a joint national legislature. The Senate would propose legislation to be ratified by a majority of states, each state having one vote. Unpopular legislation adopted in Washington, such as Obamacare, would not have any chance if sent for approval to the legislatures of Iowa, South Carolina, Wyoming, etc. It would also be much harder for special interests to influence a national legislature consisting of 5,000 or more members dispersed among 50 state capitals.
A third possible model of government discussed by Livingston would be to return, in actual practice, to the Constitution of 1787. Under that Constitution, writes Livingston, the American polity was not itself a republic but “a federation of republics… . Each American State could be viewed as a large Humean republic, but a federation of such states could not be.” The central government could rule over individuals only under the powers delegated to it by the sovereign states.
“Given this framework,” Livingston writes, “the final safeguard for republicanism in America was and could only be some form of lawful State interposition, nullification, or secession.” Livingston, joined by fellow essayists Kent Masterson Brown and Marshall DeRosa, presents evidence that these remedies were once widely regarded as constitutional in every part of the country. They were also regularly invoked in antebellum public discourse and greatly constrained the central government.
According to the authors, since 1865, after Lincoln denied that the states were or had ever been sovereign political societies, the states have not enjoyed the republican form of government guaranteed in Article IV. And they contend that constitutional restrictions on the central government will not be taken seriously unless nullification and secession are again considered lawfully available to the states. Issues of practicality are addressed in essays by Yuri Maltsev on the example provided for America by the peaceful separation of fifteen states from the Soviet Union, Kirkpatrick Sale on questions of optimum size and scale for republican government, and Rob Williams on the secession movement in Vermont.
Large parts of the book are devoted to debunking the nationalist theory advanced by Lincoln, Daniel Webster, and Joseph Story, who deny the right of the states to secede. In contrast to their ideas, Madison explained in Federalist 39 that the Constitution was to be ratified by Americans “not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.” Article VII explicitly states that the Constitution, as drafted and ratified, was a “constitution between the states so ratifying the same.” Three states—including the two largest, Virginia and New York—made their resolutions of ratification expressly subject to the right of their people to rescind.
The authors make less than the strongest possible case for some of their positions. In a chapter on the 10th Amendment, for example, DeRosa notes that, when Lincoln on April 15, 1861, called for 75,000 militiamen to put down an insurrection in the Southern states, he based his authority to do so on being the commander in chief (Article II, section 2) and on the 1792 Militia Act, amended in 1795. “Both the constitutional and statutory authority to call up the militia was predicated on the unconstitutionality of secession,” DeRosa argues. “If secession was unconstitutional, then the States were part of the Union and under the jurisdiction of the federal government. If not, the seceded States were outside that jurisdiction…” In fact, the Constitution (Article IV, section 4) flatly forbids the general government to put down a rebellion in a state without the invitation of state authorities, regardless of the state’s membership in the Union.
The distinction in the Militia Act that required the state government’s permission for the federal government to suppress “an insurrection in any state, against the government thereof,” but did not require state government permission to send troops into a state to put down a rebellion directed against “the laws of the United States” lacks constitutional authority. In his Notes on the Federal Convention, Madison reports that efforts to allow the introduction of federal troops into a state in such instances without the permission of its government repeatedly failed to garner the necessary support of a majority of state delegations. Prevailing instead was the position of delegate Luther Martin of Maryland, who declared that, at least so far as domestic violence is concerned, “The consent of the State ought to precede the introduction of any extraneous force whatever.”
In other places, the authors paint with a heavier brush than seems necessary to achieve their larger purpose. In a chapter entitled “The Founding Fathers of Constitutional Subversion,” Thomas DiLorenzo writes that after Alexander Hamilton failed at the federal convention to achieve his goal of a “monopolistic, monarchical government,” he and such “political heirs” as John Marshall and Joseph Story deliberately set out to subvert virtually all limits on the central government. No one would dispute that by the standards of the time these men favored an energetic general government, but it does not follow that they worked consistently or dishonestly to undermine the states’ legitimate powers. Their “nationalism” was limited and qualified.
Chief Justice Marshall’s landmark rulings enhancing federal power are justly famous. Not as widely known are his opinions upholding the states’ reserved powers. In Gibbons v. Ogden (1824), Marshall emphasized that Congress’s power to regulate commerce among the states does not apply to “that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State… . The completely internal commerce … may be considered as reserved for the State itself.” Marshall further held that, because manufacturing was not part of commerce, in no instance did the federal government’s commerce power extend to manufacturing or related issues of safety or quality. The latter functions, Marshall wrote,
form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description … are component parts of this mass.
Justice Story, in marked contrast to the current majority of the Supreme Court, held in Prigg v. Pennsylvania (1842) that “the police power belonging to the States in virtue of their general sovereignty” entitled them “to arrest and restrain … and remove … from their borders” idlers, vagabonds, paupers, and other non-citizens of the United States. In the same opinion, Story struck down state laws that were in violation of the constitutionally authorized Fugitive Slave Act of 1793, but he opened the door to future “personal liberty” laws in Pennsylvania and other states with the suggestion that state magistrates did not have to enforce the federal fugitive slave law if forbidden to do so by state legislation. That is, in response to Story’s implied invitation in Prigg, several states enacted laws that served as a form of nullification or interposition against the federal law promoting the capture of fugitive slaves.
Of Hamilton himself, DiLorenzo writes that he
invented the notion of ‘implied powers’ of the Constitution, which allowed him … to argue that the Constitution is not a set of limitations on governmental powers, as Jefferson believed it was, but rather a potential stamp of approval on anything the government ever wanted to do…
DiLorenzo adds that Hamilton “invented the myth” of implied powers during his 1791 debate with Jefferson on the constitutionality of a national bank. This might imply that Hamilton had waited until after the Constitution was safely ratified to spring the concept of implied powers on an unsuspecting public. But Hamilton had argued in Federalist 33 that if the Constitution gives government a specific power the means that prudence requires to execute the power are also conferred unless explicitly prohibited. Hamilton asks: “What is a power, but the ability of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution?”
In any case, there is a world of difference, as Michael P. Federici points out in his new book The Political Philosophy of Alexander Hamilton, between Hamilton’s concept of implied powers and that of progressives who advocate “living constitutionalism.” As advocated by Hamilton, implied powers are tethered to their antecedent enumerated powers. In contrast, progressives have argued that not just the means but the fundamental powers themselves are flexible and not limited by the text of the Constitution.
Not explicitly addressed in the Livingston volume, but central to its subject matter, is the conflict between two fundamentally opposed conceptions of popular self-rule. One view has been called representative or constitutional democracy. It coincides with the thinking behind the Constitution. Based on recognition that man is torn between higher and lower inclinations, this approach to popular government holds that the will of the people should be reflected in public policy not directly but as filtered through the deliberative processes of institutions representing potentially competing interests and should be subjected to yet other self-imposed restraints. Deferring to the “deliberate sense of the people” rather than to mass opinion of the moment, constitutional democracy fosters consensus, respects sound traditions, and safeguards minorities from majority passions. A very different view—identified with Jefferson, Thomas Paine, and especially Jean-Jacques Rousseau—has been called direct or plebiscitary democracy. Based on a belief in the natural goodness of man, this form of rule gives the uninhibited will of the mass of the people decisive influence over government. This kind of democracy tends to resent institutional obstacles to the full and immediate enactment of the will of the majority.
Ironically, DiLorenzo, who is an unstinting admirer of Jefferson, accuses Hamilton of sharing the Rousseau-inspired Jacobin philosophy that became the driving force behind the French Revolution. Yet biographer Ron Chernow has written: “No American was to expend more prophetic verbiage in denouncing the French Revolution than Alexander Hamilton.” By contrast, Jefferson was an ardent supporter of the Jacobins’ efforts in France, writing in a January 1793 letter: “The liberty of the whole earth was depending on the issue of the contest, and was ever such a prize won with so little innocent blood? … rather than it should have failed, I would have seen half the earth desolated.”
This book examines issues that should not be ignored at a time when pat political formulas have ceased working. It is correct that, under the original Constitution, secession and nullification were considered legitimate, if extreme, remedies for serious provocations. What once was true could, in theory, become true again. Yet the book fails to explain why Americans who habitually accept lawless government would suddenly elect state leaders prepared to use extreme measures.
Like many conservatives, the book’s authors seem to think that the principles of the U.S. Constitution could be revived if only more people could be persuaded of its correct interpretation. But the original Constitution and its liberties presupposed Americans with certain character traits and cultural habits. The moral, religious, and social practices prevalent in America in the 1780s were grounded in a Christian and British tradition. Only a society with that kind of public ethos would pay more than lip service to a Constitution of checks and balances.
Returning to the Constitution of the Framers would require nothing less than a revival of the kind of civilization and character type from which it is indistinguishable. This cannot be accomplished quickly, through political speeches or decisions. It would require protracted moral-cultural regeneration of Americans, one person at a time.
Joseph Baldacchino is president of the National Humanities Institute and co-director of the institute’s Center for Constitutional Studies.