by Josh Eboch

It is no surprise that America’s renewed focus on the separation between state and federal authority has created an almost hysterical rage on the Left. Collectivist ideologues are always necessarily threatened by divisions of power.

But rather than shame dissenters into silence with labels like “tenther,” the disdain shown by the political class and its sycophants for the Constitution has only heightened the growing tension between those in America who desire absolute central government, and those who still believe in the federalism and freedom of our founding.

Witness the charges leveled by Virgina attorney general candidate, Steve Shannon, during a recent debate against his opponent, Ken Cuccinelli, who has promised to protect Virginians’ freedoms by upholding the Constitution as it was written.

Which could mean refusing to enforce certain unconstitutional laws passed by the federal government. Continue Reading

by Manuel Lora, LewRockwell.com

“In short, the objective of the libertarian is to confine any existing State to as small a degree of invasion of person and property as possible.”
–Murray Rothbard, Ethics of Liberty

Does it not seem wrong that the mere few hundred politicians in the Federal Government have the power to control 300 million people and influence, either directly or indirectly, the entire planet? Even though the state is unjustified, inconsistent, immoral and inefficient, we should still favor maximum decentralization of power but not because local government is somehow “better” or less evil.

Rather, we ought to favor decentralization because governmental flaws and inherent corruption can be geographically limited, and the amount of damage they inflict remains within its jurisdiction. Those outside the scope of a local government are not affected, whereas those within its scope can find it easier to escape.

Under a Jeffersonian heterogeneous and decentralized hierarchy of power, life in the U.S. could have been quite different. Left alone by the Feds, each of the sovereign states might have had vastly different laws. Indeed, Anthony Gregory correctly points out that “many if not most political tensions would be decentralized down to the state level, and after that, competition and experimentation among states would likely point the way to the benefits of liberalizing and shrinking government at all levels.”

The situation today, however, is totally different. The once sovereign states have now been homogenized by the Federal Government, becoming its administrative arms. No longer is there a major difference between one place and another. Yes, I am aware that some states have significantly smaller governments with less taxation and lower regulations.

And granted, one should not have to move to another place to enjoy freedom just like one should not have to move out of one’s home to avoid a burglar. Yet the unconstitutional departments and programs coming from Washington are so overweening, intrusive and inexorably expansive that it would be preferable to at least have a choice amongst states. Alas, no longer can we vote with our feet.

Under proper federalism, families and groups would decide which style of government best suits them. I do not advocate statism but instead recognize that, lacking a central authority, the local governments would be free to experiment with policies. Don’t like California’s socialist leanings? Move to New Hampshire. Want to carry concealed guns without a permit? Move to Alaska or Vermont. If you don’t like firearms, move to Chicago or D.C. For those who want a nanny environment with heavy business regulations, try Massachusetts.

For better or worse, state laws generally do not cross borders, and their effects are limited. The Feds no longer allow even a limited freedom of movement. Everywhere you go you find the war on terror, the war on drugs, Social Security, income tax, fiat currency and inflation, and an interminable number of abominable and centralist boils of welfare-warfare pus. The only day-to-day sign that your state is part of the Union should be the occasional Post Office, which should not even enjoy a legal monopoly.

Federalism was, thus, an attempt to keep the burgeoning central power away from local life. There is no perfect system, but by exposing failures locally, there can at least be the freedom to avoid bad governments and pursue better ones. Who knows what the outcome would have been had federalism been kept alive, but one thing is certain: it would have been better than what we have today. Instead of fifty states, there is only one, and one is never a choice.

Ultimately, those who love liberty must favor decentralization of power because it is the path towards greater individual freedom and the respect of rights.

Manuel Lora [send him mail] is a freelance TV producer and multimedia specialist in New Orleans.

Copyright © 2005 LewRockwell.com

by Josh Eboch

In a recent piece at the Huffington Post, columnist David Sirota attempted to advance a somewhat tortured political theory, one he called “Progressive Federalism,” that demonstrated two important things; neither of which were likely what he intended.

First, despite the ignorant vitriol against “tenthers,” the state sovereignty movement is alive, well, and continuing to gain much-needed penetration into the national political discussion.

And second, when it comes to advancing statism, some members of the so-called media elite either utterly lack knowledge of history or have no regard whatsoever for the meaning of words.

Sirota’s article starts out innocently enough, quoting the New York Times‘ definition of Progressive Federalism as an ideology whereby “governors and activist state attorneys general [are allowed to] lead the way on environmental initiatives, consumer protection and other issues.”

States setting their own environmental and consumer protection standards? So far so good.

In fact, one might be forgiven for confusing Sirota’s Progressive Federalism with the good old fashioned Jeffersonian kind that was codified in our Constitution.

But then, showing his ignorance of the history behind both federalism and state sovereignty, Sirota follows up with this gem:

[I]n order for Progressive Federalism to happen, the federal government has to be supportive of floors, not ceilings — that is, oriented toward setting minimum progressive regulatory standards that states must at least comply with, not maximum regulatory ceilings that states are not allowed to go above and beyond.

In other words, “governors and activist state attorneys general” may foist as much progressive policy onto voters as they can get away with, but no less than the bureaucrats in Washington, D.C. determine is necessary for their own power lust.

Heads they win, tails you lose.

Experimenting with 50 laboratories of progressivism may sound like a great idea to some, but a wasteful, corrupt political class holding sway over the entire country sounds like a nightmare to me. Which is why the point of federalism was not to institutionalize Sirota’s brand of liberal self-righteousness, but rather to divide power so that no ideological camp could gain control over a central authority and so assert their agenda by force.

Contrary to the prevailing attitude in politics and the media today, the words of our founders do still have meaning for many Americans. They value both the letter and the spirit of the Constitution, and, as its Tenth Amendment underscores, that document intentionally placed each state on coequal footing with the federal government, which the sovereign states themselves created.

In no place other than the very minimal, very enumerated powers delegated to the federal government, did the states surrender any sovereignty at all. Which means that, quite simply, the states don’t need permission to exercise any of the countless rights left to their individual discretion.

If progressives like David Sirota wish to claim that the power of the federal government over their own lives has always been unlimited, simply because its three branches now act as if it is, they are certainly free to do so. Just as we who fear and detest centralized power are free to point out the historical errors in that logic.

But Sirota’s misunderstanding of history (willful or otherwise) is no excuse for allowing him to repackage his paternalistic fantasies as federalism. Intellectual honesty demands that our opponents not justify their incessant drive toward absolutism by perverting the meaning and intent of a constitutional system designed explicitly to abolish it.

Josh is a freelance writer and journalist originally from the Washington D.C. area. He is a cynically optimistic and unrepentant news junkie. His work has been published locally and in Charleston, SC. Email Josh.

Continue Reading

by Luigi Marco Bassani, Mises.org

It is astonishing that Jeffersonian scholars have paid so little attention to the states’-rights aspect of Jefferson’s thought. If one reads the Kentucky Resolutions of 1798, Jefferson appears to be the father of the Confederate States of America much more that of the United States. Here, Jefferson sought to provide a constitutional interpretation that would at least in principle prevent the union from “consolidating.” He wanted to keep a system of loose federalism very similar to the one embodied in the Articles of Confederation.

Jefferson took advantage of the first opportunity in which the federalists openly disregarded the Constitution to address problems concerning the relationship between the federal government and the states, and his interpretation placed further limitations to federal power on the grounds that the U.S. were established as a republic based on states’ as well as individual rights.

The occasion was the approval of two acts that posed a serious threat to the system of American liberties. The Alien and Sedition Laws were approved in 1798 (under this law, you could be sent to prison for criticizing the president). The Virginia and Kentucky Resolutions, drawn respectively by Madison and Jefferson, were the opposition answer to those laws.

For the first time in American history, Jefferson outlined the political and juridical doctrine of the “State rights school” that became the standard way of viewing relations between States and Nation in the Southern states during the 19th century, up to the end of the War for Southern Independence.

Revived and perfected by John C. Calhoun, this doctrine became the heart of the controversy between the two sections of the country. Jefferson asserted that the States had created a federal government as a simple agent, subordinate to them, for limited and well-defined functions, and that the federal government did not have any right to expand its own authority.

Each individual State, as far as the controversies regarding the Constitution were concerned, had the right to determine when the compact had been breached, and what measures were most appropriate to restore the violated order and redress the wrong. Thus, it was a right (explicitly called by Jefferson “natural,” therefore sacred) of each State to pronounce the illegitimacy of an act of Congress contrary to the constitutional compact.

Jefferson’s account of the nature of the Union–a voluntary contract among free and independent States in order to establish a common caretaker for few and enumerated things–contains a great deal of common sense. In a nutshell, the idea behind the Resolutions is as follows: the States are the ultimate judges of the constitutionality of federal legislation. This requires a rigorously voluntary framework.

But the Supreme Court, a branch of the federal government, at the time was already becoming what it is now, that is to say the arbiter of conflicts between the States and the federal government. In this case, the constitutional framework is threatened, since the federal government, not the Constitution, becomes the judge of its own expansion. More generally, if the States are expected to obey any federal law, regardless of whether the act had been issued according to the Constitution, only lip service is paid to the system of guarantees known as “federalism.”

Despite the ratification of the federal Constitution, Jefferson believed that vis-à-vis each other, the States remained like individuals in the “state of nature.” To characterize the true nature of the American union, for Jefferson, it was sufficient to transpose the Lockean natural rights model from individuals to the States. He never appealed to the theory of sovereignty (a term that does not even appear in his original draft of the Resolutions) to claim that the States are “free and independent”: their liberty and independence lie in the nature of the bond in which they find themselves, and not in the somewhat metaphysical property of being “original political communities.”

Despite the Constitution, the States retain all of their natural rights with respect to one another–exactly like individuals in a “state of nature.” Jefferson’s appeal to nullification was a peculiar application of the theory of natural rights: a “state’s natural right,” the right of nullification, was entirely within the realm of the federal compact, and was by no means an extra-constitutional remedy. In Jefferson’s opinion, such a right derived entirely from the nature of the American union, as it had been historically constructed.

Jefferson understood better than anybody else in his generation that Congress was the real heir to the king and that the concentration of powers in the federal center would have brought about “a government of discretion.” To this ultimate evil he preferred secession, as he wrote again and again. So, yes, Jefferson’s goal was the preservation of men’s natural rights, but he believed that the best way to reach that was through a strict territorial division of power.

Of course there were many inconsistencies in Jefferson’s writings, and his behavior in politics often contradicted his stated political philosophy. That said, it remains indisputably true that Jefferson was a Lockean who believed in the natural right of property and in the rights of the states as independent political entities to determine their own destinies. That so many scholars are unwilling to face these truths reflects, not contrary evidence in Jefferson’s writing, but rather the bias and wishful thinking of the academic class.

Originally published on May 23, 2002 at Mises.org

Marco Bassani, scholar in residence at the Mises Institute and author of the introduction to the Italian edition of Rothbard’s Ethics of Liberty, teaches political thought at the University of Milan.

Continue Reading

by Michael Boldin

My home state of California usually interacts with the federal government by genuflecting.  But, on a few issues - very few, that is - they’ve got plenty of backbone.

Most notably, marijuana.

Last week, the California State Senate passed Senate Joint Resolution 14 (SJR14), calling on the federal government to end their “interference in state medical marijuana laws.”  If passed by the Assembly, it will be sent on to Congress and the White House as an official position of the California legislature.

THE INTERSTATE COMMERCE CLAUSE

Under the Constitution of the United States, the federal government is authorized to exercise only those powers which have been delegated to it by the People.   This is affirmed by the ratification of the 10th Amendment, which states, ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The federal government has often taken the position that it can still wage its “war on marijuana” under the “Interstate Commerce Clause” in Article I, Section 8 of the Constitution.  But, some experts see this kind of explanation as quite a stretch.

Most importantly, the Interstate Commerce Clause, as understood by the founders, was meant to empower the federal government to regulate trade among the states.  One of the chief concerns this addressed was preventing States from imposing restrictive taxes on goods coming from other states.

The Founders, however, made it quite clear that this would not authorize the government to take over fields like agriculture.  Clearly, this hasn’t stopped today’s politicians and judges from turning that original meaning nearly upside down.

FIREARMS TOO

While the stand off on state marijuana laws has been going on for over a decade, firearms is a new front in the Commerce Clause debate.

This year, both Montana and Tennesse passed a “Firearms Freedom Act” taking the position that guns manufactured in state, sold in state, and kept in state - would not be subject to federal laws and regulations under the Commerce Clause.

So far, the only response has been a sternly-written letter from the assistant director of the ATF stating his position that federal law supercedes state law - and the federal government intends to continue its current regulations.

A coalition of the Montana Sports Shooting Association and the 2nd Amendment Foundation is planning a court challenge “to the federal government’s insistence it will regulate those items.”

LEAVE IT TO THE STATES

According to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), this is an issue that should be left up to the states.  He said, “The federal raids on medicinal marijuana providers have dissipated since Eric Holder was sworn in.  That said, the DEA has continued to be involved in a handful of raids in California — each time in cases that appeared to have been solely state matters (e.g., providers were alleged to be involved in state tax disputes or in violation of local ordinances), particularly based on the fact that federal charges were never filed.  If the Obama administration is really serious about leaving this issue solely up to state governments — as it should be — then the federal DEA ought to be leaving the voters of the thirteen states that have enacted medical marijuana policies alone.”

PROMISES MADE, PROMISES BROKEN?

As more states have passed medical marijuana laws, it’s become increasingly difficult and costly for the federal government to enforce its laws.  The Obama Administration has promised to end interference in state medical marijuana programs, but numerous federal raids since January have California lawmakers concerned.

SJR14 Sponsor Senator Mark Leno said that, “Patients and providers in California remain at risk of arrest and prosecution by federal law enforcement and legally established medical marijuana cooperatives continue to be the subjects of federal raids.”

In August, for example, federal agents conducted multiple raids on medical marijuana providers. On August 12, the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service, and local police carried out a paramilitary-style raid on a medical marijuana provider in Los Angeles.

The reason given?  The government claimed that the raided facility had “failed to submit state sales tax revenues.”

Where the Constitution permits federal agencies to enforce state tax code violations, I’ll never know.

A CONSTITUTIONAL REPUBLIC?

Supporters say that the reduction of raids under the Obama administration is a good thing.  But, according to noted Constitutional historian Kevin Gutzman, leaving the fate of such issues to the decision of one sitting president or another is a dangerous precedent.

“Attorney General Holder’s decision to halt the long-standing federal policy of prosecuting medical marijuana distributors is a welcome development,” said Gutzman. “However, so long as the Federal Government does not recognize the states’ Tenth Amendment right to decide the issue of medical marijuana, a return of the bad old days when patients suffering crippling pain were denied this medical treatment is always one election away.”

In other words, any society that rests the fate of its liberty on the “goodness” or “badness” of its leaders is in serious trouble.

“That,” said Gutzman, “is the difference between a democracy and a constitutional republic.”

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

by Missouri State Rep. Ed Emery, Joplin Independent

It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact.To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation.
–John C. Calhoun

Two hundred and thirty-three years ago, a group of men from states with different ideas and strengths convened to design a new form of civil government. Federalism emerged as the compact that became the U.S. Constitution. Federalism provided the protection of a central government while protecting the individualism and creativity of each state.

Delegates from the colonies engaged in lengthy debate and settled on what powers they would relinquish to a central government. Everything else they left to the states to decide and govern separately. Continue Reading

by Brion McClanahan, LewRockwell.com

One thing that consistently vexes me is the amount of time the modern statists, particularly on the Left, spend labeling the idea of decentralization and secession as “kooky.” The Virginia and Kentucky Resolutions of 1798 – if they have read them or know about them – are often portrayed as quaint and unsophisticated pronouncements of provincialism; the Essex Junto and Hartford Convention are called the products of deranged Northern madmen; Andrew Jackson, they say, was on the right side when he threatened the use of force to keep South Carolinian secessionists in line in 1832; and of course, they revel in the ultimate coup de grâce to states’ rights and secession, the Northern victory in the War for Southern Independence. Who could root for the evil, “undemocratic slave power” clad in butternut, anyway?

This would be well and good if their arguments were logical. They of course forget that the South seceded through a democratic process, but beyond that, one only has to look at the history of American socialists and reformers to find that many of them were secessionists and viewed decentralization as the logical path to their “utopian” society. Continue Reading

by Kevin R.C. Gutzman, Taki’s Magazine

Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular constitutional provision at the time they ratified it.  This notion goes under the name “originalism.”

Recent events, including the Republican response to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, reveal that the party is a highly unreliable vehicle for this principle.

So, for example, the Republican Party decried the Supreme Court’s decision in Kelo v. City of New London (2005) that the Fifth Amendment did not bar New London, Connecticut, from seizing private property for a public purpose. According to the stock criticism, the Fifth Amendment left open the possibility of government seizure of private property only for public use, not for public purpose.

What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government.  Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.

Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states.

In fact, Republican lawyers have recently found success in persuading some federal judges for the first time to treat the Second Amendment as enforceable against the states. It once was only the left-most Supreme Court advocates (for example, those who argued against prayer in public schools) who argued for the Incorporation Doctrine. Now, however, this is a “conservative” position and “conservative” public-interest lawyers take this position before the Supreme Court.

The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Constitution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.

Now, however, the Republicans take an energetic position on the wrong side of the question. So, for example, Sen. John Thune of South Dakota recently offered his Concealed Carry Amendment to a defense authorization bill.

Under this amendment, if someone had a right to carry a concealed weapon in his home state, he would be given federal authorization to carry it in states he might visit. What constitutional provision empowers Congress to force this policy upon the states? Don’t be silly.

Of course, the question of gun rights is not the only currently live one that excites core Republican voters. Therefore, it also is not the only one that prompts Republican office-holders to ignore the principle of federalism.

In 2006, the editors of National Review endorsed the notion of an amendment to the Constitution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition.  In other words, if you don’t trust one fox, put the whole fox family in charge of the chicken coop.

Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?

No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction?

That is a good point.

It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban.

However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.

Principled originalism in action!

Republicans also generally join in opposing pro-black discrimination in government hiring, firing, promotions, contracting, and other such decisions (and cheered the recent Ricci decision). They do this on the ground that the Equal Protection Clause of the Fourteenth Amendment requires color-blindness on the part of government.

This is of course a morally appealing argument. But the issue is not whether the Republican policy positions are appealing; that is a legislative question. The question is whether the Republicans’ constitutional position has merit.

Here, as in the other areas described above, it does not. The Equal Protection Clause was not intended as a wide-ranging mandate for government equality, but to have much narrower application. The Supreme Court long recognized this fact. Conservatives do their reputation for intellectual honesty no favors by arguing for extension of unfounded precedents.

In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called “the Constitution.” Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is a New York Times best-selling author.  He’s written Virginia’s American Revolution: From Dominion to Republic, 1776–1840, The Politically Incorrect Guide to the Constitution, and as co-author with Thomas E. Woods, Jr., Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.

Copyright 2009, Kevin R.C. Gutzman. Published with permission of Taki’s Magazine