E Pluribus Unum More or Less

A less perfect unionAdam Freedman’s timing in publishing A Less Perfect Union: The Case for States’ Rights is fortunate, sorely divided as Americans are in regard to the language of the Declaration, the Constitution, the Bill of Rights, the Virginia and Kentucky Resolutions. Mr. Freedman undertakes to renew this political season a discussion on states’ rights which as his argument makes clear has been so subverted the theory owns these days little if any authority or instrumentality. More so, Mr. Freedman is profoundly aware that any analysis of states’ rights is hardly in favor; by bringing the analysis to the forefront, however, perhaps the mood of the historical and political professions are ripe for a change in fashion.

Mr. Freedman’s approach is akin to Forrest McDonald’s We the People whereby Beard’s economic interpretation of the Constitution becomes undone: the decks must be cleared of false steps, chimerical and utopian speculations. If states’ rights retains any kind of meaning, it can’t be drawn from contemporary history; it has to be re-located in the large body of political theory the Framers had at their disposal which is always to be juxtaposed against the aggrandizement of the federal government at the expense of the states. The indicators Mr. Freedman identifies at close range are numerous and many.

The confusion is over the sovereignty question. He notes wisely the historical debate between the Federalists and the Anti-Federalists neither of whom were reading the Constitution and the Bill of Rights expansively. The issue would be foreboding if sovereignty for the Framers was analogous to states being foreign countries in relation one to another. True “federalism” recognizes the concept of state sovereignty expressed in the Tenth Amendment; it’s quite clear that the Amendment emphasizes the limited nature of the powers delegated to the federal government. For Mr. Freedman the language of both the Ninth and Tenth Amendments is unambiguous.

Why then has this notion of states’ rights become a “taboo doctrine”?

Mr. Freedman notes that “Washington’s minions like to argue that states’ rights is an unconstitutional doctrine, because our system makes the national government ‘supreme'” (5). What’s fallacious in the argument is the conservative principle that what emerged from the convention was a “federal union, not a national government” (6). Truthful James Madison was profoundly aware that a more perfect union was not to be equated with a strong central government. A union of this kind would abolish “all inferior governments” (7); the Constitution, however, plus the Bill of Rights” “strikes an exquisite balance between local self-government and centralized power” (7).

As originally ratified, the framing documents engineered a machine that would run of itself but is now in need of serious over-haul. The trend toward centralization has brought the process of perfecting the union to an improper balance between local, state and federal governments. Advocating federalism and states’ rights becomes, therefore, something much more than Tea Party rhetoric

once the various corruptions have been dissipated. In less than four decades, Mr. Freedman notes, federal spending has grown

“288 per cent . . . twelve times faster than the growth in Americans’ income” (16). Such an incursion is a perversion leading to more and more coercion which has become a back-door attempt to create more and more federal legislation under the guise of “for the General Welfare” (117).

Such scrupulous documentation is the hallmark of Mr. Freedman’s case for states’ rights; he’s not just shooting blanks at liberal moving targets. His chapter titled “The Bill of (States’) Rights,” for example, begins with a question that should be at home in every American History textbook: “Only one of America’s fifty state constitutions makes the startling claim that ‘the people of [this state] have the sole and exclusive right of governing themselves as a free, sovereign, and independent state.’ Which state is it?”

The words are those of John Adams in 1780 and have never been repealed from the Massachusetts constitution. Mr. Freedman’s point is that such scrupulous fidelity to history is an assertion for states’ rights that has nothing to do with slavery or Jim Crow “or any of the other reactionary movements assumed to be lurking behind states’ rights” (35) To the extent that America’s central government possessed any authority that authority would be carved out of the powers that would otherwise belong to the individual states. States’ rights, he notes, quoting Henry Adams in 1883, are the “‘starting point [for] American history and constitutional law'” (40).

By the 1920s, Mr. Freedman continues, America’s political classes had achieved a radically more centralized union through a combination of factors: World War I, constitutional amendment,

judicial activism, and an expanded commerce clause. It’s precedent for a New York governor who antithetically argued in 1930 that Washington’s politicians were causing the United States “‘to drift insensibly toward . . . autocracy” (121). According, then, to this governor, under the Constitution Congress had no right to legislate on “‘the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare, and of a dozen other important features. In these, Washington must not be encouraged to interfere” (121). Six years later former governor now president Roosevelt had established a Committee on Administrative Management, modern administrative scientific methods of management with more advanced social views.

American history books tend not to argue such but it’s more likely than not that under the New Deal state governments became more subservient. Federal money came to the states which in theory were free to spend the money as they saw fit but with Administrative Management practice a federal agency administrator could withhold grant money unless states conformed their relief efforts to federal “dictates.” One offshoot: a proposed plan to replace the “forty-eight states with nine administrative ‘departments.’ Each department would have its own elected governor, but he or she would be answerable to the president because each department would simply be a subdivision of the national government” (128).

Not to do so would be less than “progressive” for those “New Dealers who treated the Constitution as an archaic cultural

tradition–sort of like quilting–that can be put aside when there is important work to be done” (131).

Once again, to clear the decks, Mr. Freedman is scrupulous in his research and documentation. The problem is compounded not only by more power concentrated in the Executive Branch and Congress but also by a Supreme Court brushing away limits to the scope of Congress’s powers while asserting in 1941 that “the Tenth Amendment is ‘but a truism that all is retained that has not been surrendered'” (139), that often repeated statement of Chief Justice Harlan F. Stone in United States v. Darby.

Freedman believes, however, that the Tenth Amendment may still function decisively if the forthcoming political season’s debates tackle the topic of the modern expansion of federal powers, enumerated, explicit, or implied. It’s more than likely true that history will record Obama’s election as “the progressive magical thinking machine kicked into highgear” (188). It’s also very likely true that “Big Brother” came of age when the Federal Courts began “creatively to interpret [the Constitution] to remove any constitutional barriers to their preferred policies” (133). Mr Freedman provides breath-taking examples of the federal court system aggrandizing the federal government at the expense of the states.

Against that sobering historical background, the last third of Mr. Freedman’s book builds “The Case for States’ Rights Today.” Utah becomes an interesting case study. The NSA, for example, wished to locate a major data center in Utah, America’s driest state. Doing so would divert precious water sources to engineer the computing power of that center. The larger point became something like this: Neither Utah nor any other state is “obliged to make its water supply available to the NSA; state lawmakers can “withhold material support for federal programs they consider objectionable or downright unconstitutional” (192, emphasis mine).

Mr. Freedman continues by noting that federal statute books

are either Kafka-esque or freighted with Catch-22 paradoxical Jarndyce v. Jarndyce situations. There are “4,500 federal statutory crimes and over 300,000 regulatory crimes–that is, criminal penalties for violating bureaucratic rules” (195.) The solution Mr. Freedman notes, quoting respectfully a 2014 report by the Texas Public Policy Foundation, has been an “”avalanche of state-based initiatives to reform the criminal justice system”” (199). Much like Texas, various other states have decriminalized “certain low-level offenses and have eliminated custodial sentences for others” (199).

The blessings?

Results that have eluded the Federal government: simultaneous reductions in crime and prison populations.

Mr. Freedman’s concerns, furthermore, are not only criminal laws but civil laws. It’s sophisticated preparation for the final chapter in his book where he reviews legislation and other proposals citizens and state legislators should endorse. His action plan reads like planks in a political platform even if it’s unrealistic to block all federal funded and unfunded mandates at once.

Can states even oppose mandates?

One mechanism already in place, Mr. Freedman reports, is a constitutional defense council, a “state body that could include the attorney general, other state officials and outside experts, and that has the authority to retain outside lawyers. The council could identify the federal mandates that pose the greatest threat to the state and recommend measures to ‘arrest the progress of the evil'” (296). Three states have done so: Arizona, Idaho, and Utah. It’s time Mr. Freedman concludes for the states to dust off this idea, which is not new but old; it’s James Madison’s, is in the Virginia Resolutions, and is both an obligation and a right on the part of the states.

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