by Josh Eboch
Anyone who has ever participated in an online discussion forum knows that, sooner or later, all political debates are reduced to analogies of Hitler or Nazism. This self-evident fact of human existence is unofficially known as Godwin’s Law.
But for those of us who believe in the Constitution, specifically its Tenth Amendment and the spirit in which it was ratified, there is another law; one that says, sooner or later, all debates will be reduced to charges of intolerance, racism, or some variation on that theme. Call it DiLorenzo’s Law.
Ostensibly, these charges are leveled because “states’ rights” and the Tenth Amendment have been used in the past to justify gross violations of basic individual freedom and liberty. Which is absolutely true. From slavery to Jim Crow to poll taxes, there is no question that state governments in every part of the country have legislated in discriminatory and harmful ways against their own citizens.
But it is also important to realize that bad laws and regrettable history do not themselves discredit the decentralized, federalist structure of our Constitution. Rather, they are an indictment of bad government and its limitless potential for harm; prime examples of the injustice that inevitably results from arbitrary power.
Which is exactly why a strong Tenth Amendment remains so vital. It would be foolish to think we can trust the federal government to act in accordance with freedom at all times, any more than we can trust the governments of each state to do so. Just ask the Sioux and the Cherokee. Or Japanese-Americans in 1942.
The best protection for liberty is a stiff and dynamic political competition between the states, and between states and the federal government, that allows for ideas to flourish or die on their merits. In that way, Americans cannot ever become permanently trapped by authoritarianism at any level.
However, for such competition to exist, states must retain their power to act as sovereign political units. That includes the ability of voters to judge for themselves through their elected officials the constitutional limits of federal authority within a given state, nullifying those laws that exceed Congress’s enumerated powers. When, as is the case today, five justices on the Supreme Court are allowed to impose their expansive view of central authority on the entire country, they are just five federal foxes guarding a hen house of 300 million taxpayers.
That is why, in order to protect its citizens from federal usurpation, the ultimate tool of each sovereign state must be its power to leave the Union altogether. Without that power to withdraw their consent, voters are nothing more than human cash machines residing in administrative fiefdoms of the central government.
But try explaining a concept as basic as “consent of the governed” to the average statist, and you will almost certainly be told that America already settled this question in 1865.
Except force of arms cannot settle questions of natural law, it can only postpone them. Given that the Constitution itself was ratified as a voluntary contract between the states for their mutual benefit, with no Perpetuity Clause or binding third party arbitration, the citizens of the southern states (the vast majority of whom did not own slaves) were not only morally, but legally, justified when they chose to void their participation in 1861. (Maybe even more so than the original slave-owning colonists had been in their secession from Great Britain in 1776.)
And while a desire to preserve the system of chattel slavery clearly did play an important role in the South’s decision to secede, it is really a case of doing the right thing for the worst possible reasons. Only sheer ignorance or intellectual dishonesty would lead someone to claim that support for the legality of peaceful secession is still tantamount to support for slavery. (Ever heard of Quebec?) They are two completely separate issues.
But, rather than acknowledge his total lack of constitutional authority to prevent any state’s peaceful secession, potentially saving 600,000 American lives, President Lincoln “preserved” the formerly voluntary Union with the bloody force of his federal boot heel. And did lasting dictatorial violence to the very Constitution he had sworn to protect. It was not until later that history sought to hide these facts, ascribing to a cynical politician and inveterate racist the ironic moral camouflage of “Great Emancipator.”
It is due largely to the dichotomy between Lincoln’s words and his actions, and to the crucial distinction between secession’s legality and slavery’s injustice, that people still hold such conflicting opinions and beliefs regarding one of our nation’s most complex and painful eras. And why those who call for state sovereignty now often find themselves accused of racism, or in the awkward position of attempting to rationalize the inexcusable.
The truth is that the confusion on both sides is wholly unnecessary because American society has changed permanently, and for the better, since the days of Lincoln. Far from seeking to perpetuate a rigid class system or forced servitude, today’s New Federalists come in every skin color and desire only to be left alone by the federal government, to conduct their lives and businesses as they see fit.
They no more need to defend slavery or segregation to support state sovereignty than peaceful Muslims need to defend terrorism to support Islam.
Despite some disgusting perversions, the Tenth Amendment, indeed our entire Constitution, has always been fundamentally about maximizing individual freedom through the greatest possible decentralization of corruptible power. Just as no reasonable person today would condone enslaving another human being, so none of us could reasonably believe that power sufficient to coerce the obedience of 300 million people can ever be trusted in the hands of 537 self-serving politicians and nine unelected bureaucrats.
Before we can regain our national spirit of self-determination, Americans of all political stripes will have to better understand their own history, taking from it what is right and noble, while leaving behind what was not. Freedom is always a risk in the future, but it’s time we made peace with our past.
Josh is a proud “tenther”, freelance writer, and activist originally from the Washington, D.C. area.
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I like what was said about suceeding because of slavery being morally wrong but legally correct because in our modern political thinking we assume that moral law and legal law are identical and that having the legal right to do something means you agree with it morally. This is not the case because the legal right to do something is simply saying the government is not using its force to shape your external actions while moral law is derived from a person's own conscience that shapes your internal character. When we equate moral law with legal law we are saying that the state has the right to shape our personalities rather than let our own religious beliefs do that.
Tim, what if the government has placed on trial a person accused of breaking a law, and the law in question is immoral? (e.g. Thou shalt refrain from providing medical assistance to patients over 80 years old). Will you still prefer the legal over the immoral?
I think you should break it then but I was trying to say that making something illegal just means that government can use its "force" to prevent you from doing something. It does not make it immoral to do that thing. That is something that is shaped by your own conscience such as not letting the elderly die.
I hoped that clarified things.
Thanks, Tim, but the point is that SLAVERY is and was morally wrong. The act of secession itself (for any reason) is just a political tool. It is not now, and never has been, either illegal or immoral.
I did not mean to imply that I was disagreeing with the author.
I believe the legal right to do something is not the same as the moral right to do something. Every state, then and now, has the legal right to leave. That does not mean that they have a moral right to leave. The moral right to do something comes from God and that is between the person and their maker. It should not involve the government.
[...] Slavery and Racism Posted on December 18, 2009 by Bill Miller This Article by Josh Eboch on TenthAmendmentCenter.com The best protection for liberty is a stiff and dynamic political competition between the states, [...]
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@Josh. If a person is put on trial for braking an immoral law the jury doesn't have to find him guilty because it is a bogus law…it's called jury nullification and it has been used. It is good to know in case you are ever called for jury duty.
oops sorry my last response was for Jeff's comment :~)
The problem with the 10th Amendment is the following, IMO. Citizens have not been teaching the Constitution and its history to their children for many decades, particularly the constitutionally enumerated principle of state sovereignty. So voters aren’t making state sovereignty a campaign issue. Consequently, voters have been electing lawmakers to both federal and state legislatures who are as state sovereignty-impaired as the voters are.
The ratification of the ill-conceived, anti-state sovereignty 17th A. made this situation even worse. This is because, if the state legislatures had still had control of the Senate during the FDR administration, for example, then many of FDR’s unconstitutional, socialistic taxation and spending programs would have been blocked by the Senate, IMO.
But we now have a situation where states like California are going bankrupt simultaneously while Californians are paying illegal federal taxes laid on them by a corrupt, Constitution-ignoring Congress. And many state sovereignty-impaired state legislators seemingly just sit back and watch the show.
There's a problem with the 10th Amendment? While I agree with you that people haven't been learning the Constitution and the proper role of the federal government, I don't see how that means that the 10th Amendment itself – as the founders intended- has any problems. .
The problem is attributing state sovereignty to the 10th Amendment, and not to the Declaration of Independence. The 10th Amendment doesn't even use the term "sovereignty," so much as reserved and delegated powers.
This does not in itself designate sovereignty– nor indeed can it confer such. Sovereignty is older than the Constitution, and applies only to the People of each state– not to the state government, which is only its elected officals.
Mea culpa. Nothing wrong with the 10th Amendment. Long day at the office.
I figured that – long days for a lot of us these days. With government doing so many unconstitutional things that it's ruining our economy, it'll be like that for some time…
"The ratification of the ill-conceived, anti-state sovereignty 17th A. made this situation even worse."
There's really nothing "Anti-state sovereignty" about the 17th Amendment, since state sovereignty pertains to a state's PEOPLE, not its government.
I get the feeling that people here really do not grasp the concept of state sovereignty, which has nothing to do with the 10th Amendment.. "State sovereignty" means that every state is a SOVEREIGN NATION– and its PEOPLE are the ruling SOVEREIGNS, having the power to declare wars, form treaties, and do everything else that sovereign nations can do.
What you're talking about, is DELEGATED POWERS, i.e. those powers which are delegated to the state government, by the People of the state– vs. those delegted to the federal government, or not delegated to either.
(continued)
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Of course, this was suppressed in 1861-5 via mass-murder and totalitarian censorship– and has been ever since, with the simple SUCCESS of this venture, being claimed as VERIFYING its basis in historical FACT– which is like saying if a policeman arrests you, then you're guilty.
So far, the states never had a trial by a jury of their peers– ie. the sovereign nations of the world; and as a result, these nations reaped the whirlwind in the next century, as 150 million+ were likewise murdered under socialism BECAUSE of the American War Between the States.
. Connect the dots.
I figured that – long days for a lot of us these days. With government doing so many unconstitutional things that it's ruining our economy, it'll be like that for some time…
Saying that the War Between the States "settled" state sovereignty, is like saying the law of gravity changed when Newton died, or the world became round when Columbus discovered America– or that weathermen create rain. Obviously this logic absurdly confuses fact with ignorance, and that mere suppression of an historical fact is tantamount to changing it.
State sovereignty proceeds from the historical fact of original intent in the founding era before 1800— not from military outcomes afterward; and history has proven to declare, acknowledge and retain the national sovereignty of each state respectively, as individual sovereign nations– not collectively as as a single nation, as the current regime claims.
The sooner this becomes common knowledge of every American, the sooner we can ditch Leviathan and get on with our lives in a restored federal republic.
I get tired of hearing that argument as well because when people say the civil war settled the issue what they are really saying is that the proper way to settle any debate is to kick the other guy's ass. That does not settle the truth of any issue but just intimidates the other side from arguing it any further and that is exactly what the civil war did to the state's rights debate.
Well, to say that the war settled the right of secession, is simple ignorance; for secession was a question of each state's national sovereignty before the fact.
If the states were sovereign before the fact, then it could not be taken away, since the war denied that they were EVER sovereign to begin with.
Simpy winning a war does not give the victor a literary right to write history– though they may have the power to suppress the truth, this doesn't change what really happened.
If the states were sovereign before the war, they were sovereign AFTER it.
The sooner we learn that, the sooner we can each take back our respective state's sovereignty.
The problem with this type of argument, is that it fails to assert that every state is a sovereign nation.
It writes that "force of arms cannot settle questions of natural law;" however the question here is not natural law, but historical fact– which, of course, can never be changed by anything, since "done is done."
And that historical fact, is that the states were sovereign nations under the law– and this law was never changed.
Therefore the states are still sovereign nations, and only need to prove and assert this fact in order to liberate themselves as sovereign nations.
For some reason, the administrtor is deleting my comments, where I state that state sovereignty was suppressed via mass-murder and totalitarian censorship via the War Between the States– and has ever since.
I don't see why– it's the truth.
If states law were the standard still, the 'immorality' of slavery would not matter, it would still be law. Without the federal government, certain states would never have ceased acting discriminatory. The author admits this, but does not even bother to try to refute or argue any counter to it.
Basically this article and the entire states rights movement amounts to simply accepting "Hey, if states have control the majorities will probably discriminate freely against minorities, and well theres nothing wrong with/that we can do about that…we as 'the majority' are willing to accept the bad (for minorities) with the good (for us)."
That is the fundamental failing of 'states rights'. The author clearly recognizes this, but cannot come up with a counter argument. That is because there is none.
Brian – The mass murder occured on behalf of the southern states-righters. How many slaves and blacks do you think were murdered toward the end of the war? Historical evidence states that confederate generals (including Klan founder Nathan Forrest) stated any black person attempting to leave bondage or fighting with the north faced immediate execution on the field if captured (which is not what happened to union white soldiers…at least until the end of the war). After Reconstruction ended and Jim Crow began (under the banner of 'states rights to establish a separate but equal society within their locals), tens of thousands of blacks and even northern whites were mass murdered.
You cannot escape the past, nor can you ignore the flaws of history. The 'states rights' ideal of the confederacy was uniformly bonded to its racial identity nationalism and brutish slavery endorsement. (read the Lincoln Douglas debates in their entirety to see the truth of this).
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[...] that erupted 30 years later along the same fault lines of federal vs. state authority, providing a convenient way to dismiss, without debate, those who call for nullification today, by linking them with slavery [...]
[...] that erupted 30 years later along the same fault lines of federal vs. state authority, providing a convenient way to dismiss, without debate, those who call for nullification today, by linking them with slavery [...]
[...] that erupted 30 years later along the same fault lines of federal vs. state authority, providing a convenient way to dismiss, without debate, those who call for nullification today, by linking them with slavery [...]
[...] that erupted 30 years later along the same fault lines of federal vs. state authority, providing a convenient way to dismiss, without debate, those who call for nullification today, by linking them with slavery [...]
[...] that erupted 30 years later along the same fault lines of federal vs. state authority, providing a convenient way to dismiss, without debate, those who call for nullification today, by linking them with slavery [...]
[...] is to losing, the more likely it is that they will accuse you of racism. Maybe we can call it “Dilorenzo’s Law.” How does that [...]