Untimely Observations

The "Rightful Remedy"


Americans are sick of their rulers.  Trust in the Federal Government is near an all time low, and there’s little reason to believe things will change any time soon. The national debt is over $13 trillion and healthcare reform passed over the wishes of the majority of the population.  Everything else that the Democrats would like to do, such as cap-and-trade and immigration reform, the American people don’t want either. Voting in the Republicans, even if it prevents any new liabilities from coming into existence, may well get us into another war.

We’re told that everything would be better if we just would follow the Constitution.  And that’s true enough, as nowhere in the document does it allow Washington to force people to buy health insurance, participate in programs such as Social Security and Medicare, set up a Federal Reserve system, or do a thousand other things now taken for granted as state prerogatives.

Where did things go wrong?  How can we resist the leviathan?  Tom Woods attempts to tell us in Nullification: How to Resist Federal Tyranny in the 21st Century.  Every school child learns that there are three branches of government.  The Legislative makes laws, the Executive enforces, and the Judiciary interprets.  The problem with this setup, according to Woods, is that it’s not what the Founders intended.  The arrangement doesn’t stop all three branches of government from infringing on the rights of the states and individuals.

The Tenth Amendment to the Constitution 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 gotten around this by three methods.  The first is the “general welfare” clause.  Article I, Section 8 of the Constitution states that the national legislature “shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” A broad reading of the phrase could be taken as allowing Congress to do just about anything.  James Madison was an early and forceful opponent of such an interpretation. If the government were allowed to do whatever it calls advancing the “general welfare,” why would the same sentence spell out the power to tax, etc.?  As Madison pointed out near the end of his life, “it exceeds the possibility of belief” that those who value liberty “should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.”  Thomas Jefferson took a similar view. The expansive reading of the welfare clause would allow the Federal government “to do whatever evil thing they please.”

The Constitution’s commerce clause allows Congress to regulate trade between the states and with foreign nations. “Regulate” in the eighteenth century meant to “make regular” or “standardize,” not “micromanage” which best describes what’s done today. The original purpose was that the United States would be a free-trade zone: Alabama, for example, couldn’t put tariffs on goods coming in from Georgia. But already in the 19th century, proponents of big government were arguing that Congress had the right to interfere with trade that went on within a state if it had the potential to affect interstate commerce. Under this reading, if I grow too many potatoes and that drives the price of the good down across the country, Washington can tell me to grow less, grow more, destroy my crops, or whatever. The Supreme Court had basically gone along with this interpretation without finding any argument based on it too absurd until the 1995 U.S. v. Lopez. The 1990 Gun Free School Zones Act made carrying a firearm into a school zone a federal crime. The government had the gall to argue that firearms around students could upset children, who would do worse academically and have poorer job prospects, thus hurting the US economy (!).

Finally, there’s the “necessary and proper” clause, known as an “elastic clause” to Social Studies students. Congress is allowed to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.”  The original purpose here was a clarification: the government could do what was necessary to carry out its already spelled out duties. It was inserted so not everything would have to be explicitly stated. For instance, since the government could erect “needful Buildings,” the necessary and proper clause allowed the state to purchase lumber, hire workers, etc. Alexander Hamilton wrote that the “operation of the intended government would be precisely the same” if the clause wasn’t there.

Woods quotes Jefferson and Madison often, and it’s not surprising since they were the ones who held opinions closest to his own. For example, Madison asserted in Federalist #45

The powers delegated by the Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.

On the other side of the Founders spectrum was Alexander Hamilton. It’s true enough that he believed in a broad interpretation of the “general welfare” clause, but he only made the full extent of his opinions known after the Constitution had been ratified and he was the secretary of the Treasury. In Federalist #17 and #34, he argued that an area like agriculture would never be regulated under the welfare clause, but changed his mind a decade later.

Hamilton, anyway, was out of step with most of the rest of the Founders.  Even the Federalist Samuel Chase declared in the 1798 Calder v. Bull, “The several State Legislatures retain all powers of legislation, delegated to them by the State Constitutions; which are not expressly taken away by the Constitution of the United States.” Such a sentence and many others like it would be completely meaningless if the “general welfare” and “necessary and proper” clauses allowed Congress to do whatever it liked.

After determining what the Constitution says, we must look at who has the power to interpret it. This issue was a contentious one in the first decade after the founding document was ratified. In the mid-1790s, while Britain and France were at war, the latter adopted the policy of seizing U.S. ships that were trading with Britain. To clamp down on the war hysteria that gripped the nation, President John Adams signed into law four bills that came to be known as the Alien and Sedition Acts of 1798. They made it more difficult to achieve U.S. citizenship, allowed the federal government to deport aliens it deemed dangerous, and made it against the law to “write, print, utter, or publish” anything that was “false, scandalous and malicious” against Congress or the President.  The Federalists used the general welfare and necessary and proper clauses to justify the laws. The Supreme Court, also controlled by Federalists, upheld the constitutionality of the acts, and politicians and journalists were imprisoned.

Thomas Jefferson, the Republican Vice-President at the time, was afraid that he himself would be jailed! He didn’t subscribe to the now-fashionable view that the Supreme Court had the last say over what was and wasn’t allowed:

To consider the Judges of the Superior Court as the ultimate Arbiters of Constitutional questions, would be a dangerous doctrine which would place us under the despotism of an oligarchy.

In response to the Alien and Sedition Acts, Jefferson drafted a set of resolutions that he gave to Virginia State Senator Wilson Cary Nicholas, who in turn transferred a copy of the documents to Kentucky State Representative John Breckinridge. The documents became the Kentucky Resolutions of 1798 and according to one historian, contain Jefferson’s “whole theory of the federal union.” They asserted the sovereignty of the states, which joined the union under the condition that they would hold on to all powers not explicitly granted to the federal government, and declared that “whensoever the general government assumes undelegated powers its acts are unauthoritative, void, and of no force.” Since the individual states voluntary joined together for a few common purposes, each had an equal right to decide when the federal government overstepped its boundaries; the federal government would not itself decide when it had gone too far. The Kentucky Resolutions of 1799 would first use the term that is the title of Woods book

That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions; and that a nullification, by those sovereigns, of all unauthorized acts done under colour of that instrument, is the rightful remedy...

The Virginia Resolutions of 1798 were even more forceful. The state asserted for itself and others when the government committed unconstitutional acts the right “to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties pertaining to them.”

The rest of the states opposed or were silent on the Kentucky-Virginia resolutions.  But less than a decade later, Thomas Jefferson was president, Britain was boarding American ships, and New England was asserting its right not to comply with federal laws.  In December 1807, trying to avoid being dragged into a European war, Jefferson instituted an embargo preventing American ships from traveling to any foreign port in the world.  The economy of the Northeast, dependent on international trade, collapsed.  Private individuals smuggled their goods into Canada and the state governments of Rhode Island, Connecticut, and Massachusetts declared the embargo void in their states.  It seems as if they didn’t have as solid of a constitutional case as Kentucky and Virginia did a decade before -- after all, the federal government is allowed to regulate international trade (though not speech).  But the more important point was the states had a say in which laws were binding.

The War of 1812 saw more conflicts between the federal government and the states.  The Constitution declared that the president could call on state militias to “execute the laws of the Union, suppress insurrections and repel invasions.”  Judges in Massachusetts declared that the states had the right to decide when such conditions applied.  Neither Congress nor the president were given the right in the Constitution to determine whether “the said exigencies do in fact exist.” The governor of Connecticut refused to make his militia available for the war effort, and the state legislature formally endorsed his act.  A tougher embargo than the one under the Jefferson presidency was placed and once again states refused to comply.  The Massachusetts legislature reminded President Madison that they were putting into effect the principles he himself had articulated years before.

Some opponents of the federal government may say that although Woods makes a cogent argument, the Constitution has failed.  Lysander Spooner argued that either the Constitution allows the current government or failed to prevent it from coming into being.  Whichever it is, the document is “unfit to exist.” But while we may sit here over two centuries and a few decades after the Constitution was adopted and say it failed, the United States did manage to maintain local rule and economic freedom at an unprecedented level from at least 1787 to 1860 (yes, yes, excluding slavery), and then again after Reconstruction to the time of Woodrow Wilson.  By world historical standards, that’s a pretty good record.

The federal government was founded mainly to deal with foreign threats and ensure free trade between the states.  Today it can only do evil, as military conflicts between advanced states have become unheard of, and we’ve seen sovereign nations sign free trade agreements with one another. Ideally the union would cease to exist. But politics is the art of the possible, and most Americans are attached to the idea of being an infinitesimal part of the most powerful force in history. Washington wasn’t built in a day, and it won’t be dismantled in one either.

That said, all across the country states are reclaiming their constitutional rights. Two dozen states nullified the REAL ID Act of 2005, which the federal government has given up trying to enforce.  Medical marijuana is technically illegal, but as of now, 14 states allow it.  Encouragingly, the conservative states of Alabama, Louisiana and Mississippi formally backed the right of liberal California to set its own policy on the issue when it went to the Supreme Court.  The highest court in the land sided with the federal government, but marijuana dispensaries continue to operate as if the whole thing never happened.  On the other side of the political spectrum, Tennessee, Montana and South Dakota have passed laws putting guns manufactured, sold and used within their respective states outside the jurisdiction of Washington. Over 20 other states are considering passing similar laws.

If a true states’ rights movement swept the land, we would not like all the results.  California may very well become a socialist state with Spanish as the official language. But the alternative is leaving power in the hands of a federal government that only exists for egalitarian ends, insatiable in its quest for power and with an arrogance rarely matched in human history.

Woods writes

This need not be a traditional left-right issue.  Before the Left decided that bureaucratization of all of life, administered by a remote central government, was the ideal social arrangement, some on the Left considered such a system repulsive and inhumane.  Kirkpatrick Sale, for instance, argued in his book Human Scale that so much of modern life, its political dimension included, had grown dysfunctional simply by virtue of having grown.  Everything was simply much too big, its scale grotesquely out of proportion to what a humane existence would appear to demand.

There does seem to be friction between the liberals’ love of big government and their self-conception as rebels.  Perhaps they see whites and the rich as the true powers in society, and government as simply a meager tool to even things out a little bit.  The most important task of a decentralization movement is to educate people on the true nature of the state and the fact that the bigger and more distant it is, the more evil.

Americans who believe in limited to no government, individual rights and local autonomy are lucky.  We, unlike other Westerners, already live under a document that guarantees all the mentioned concepts, and one which every mainstream thinker and politician swears fidelity to. The Constitution didn’t fail us; the American nation failed it. The fact that the federal government was violating the spirit of the document within 10 years of its ratification should give us pause, but as long as the people retained the spirit of liberty the capital was kept in its place. Had anyone but Lincoln been elected in 1860, the federal monster may never have come into being in the first place. The American people believe in the Constitution. Yes, unfortunately they believe in the union, too. Weening them off of it should be our long-term strategy, but as things stand, Americans could do a lot worse than see the writings of men like Thomas Jefferson and Tom Woods as antidotes to the designs of their present rules.