Federalism: Yesterday and Today

Federalism, or States’ Rights, has a long and honored history. To define terms, Federalism involves the assignment of powers between the entities that make up a federation and the federal authority created by those entities to act on behalf of that federation. In the United States Constitution, the people delegated certain enumerated powers to the federal government for the sake of operating a federated union.

The 10th Amendment was put in place to insure that the federal government would never assume powers not delegated to it. It reads, “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.” It does not say, “The powers not expressly delegated...” When House Speaker James Madison introduced his proposed Bill of Rights to Congress in 1789, there was strenuous debate on the word “expressly”, and Congress rejected it.

There are two theologies of constitution interpretation: Nationalist and Federalist. Some would argue that “schools of constitutional thought” might be more accurate than “theologies”, but there is so much legal mysticism attached to both lines of thought that the term “theology” is a better descriptor.

On the Nationalist side, there is the belief that the Declaration of Independence is the immutable document establishing the Union and converting the colonies into states in the process. How did it do this? By a form of legal magic. To a Nationalist, the Treaty of Paris is irrelevant because he doesn’t care if Great Britain agreed to American independence or not. The Articles of Confederation and the Constitution are the mutable documents further refining the work of the Declaration. The Constitution establishes a contract binding upon the Whole People. This is why Madison chose to have the Constitution ratified by state ratifying conventions, not the state legislatures. He wanted to be sure it was understood that the Whole People were the parties to the contract, not the states. The states were merely the agents through which the Whole People acted.

On the Federalist side, there is the belief that the Declaration of Independence declared the independence of thirteen separate and sovereign colonies. The term “united States” appears in the Declaration with a lowercase “U”. It does not refer to a political entity called the United States, but only to those states united in opposition to the Mother Country. To a Federalist, the Treaty of Paris establishes British concurrence with the separation and independence of those thirteen different sovereign entities. The Articles of Confederation and the Constitution form the Union in two different modes.

This may sound like, “How many legal angels can dance on the head of a constitutional pin,” but it was the legal basis for Lincoln’s decision to prosecute the Civil War, not slavery.

At the Constitutional Convention of 1787, there were Nationalists and States’ Men. All the leading lights of the Convention were Nationalists, like Alexander Hamilton and James Madison. When the Convention adjourned, Hamilton thought that the Constitution had an easy path to ratification, an illusion that was shattered immediately. For a month after adjournment, almost every voice that was raised spoke against ratification. The writers ranged from Samuel Bryan, who fired an artillery barrage at the Constitution, to anonymous writers like Federal Farmer and John DeWitt, who applied a lawyer’s approach and directed sniper fire at aspects of the Constitution. Hamilton realized he was about to lose, so he sat down and began writing a defense of the Constitution for the New York Ratifying Convention.

Hamilton understood that if he called it the “Nationalist Papers”, his effort would fail, so he pulled off a brilliant public relations coup. He appropriated the name “Federalist” from the true Federalists, the States’ Men, and put the true Federalists in the position of calling themselves “anti-Federalists”. Because people of the time understood that a Federalist was a person who favored greater emphasis on state authority than federal authority, Hamilton created a journalistic smokescreen that helped get the Constitution ratified.

Nationalists and Federalists have different ideas about what is going on behind the Constitution. To a Nationalist, the Constitution is a compact or contract. To a Federalist, the Constitution is a treaty. Under contract law, if a party to a contract wishes to break that contract, he requires the concurrence of the other parties to the contract. Breaking a treaty merely involves giving notice to the other parties.

While Federalists believe that only specified and enumerated powers are granted to the federal authority, Nationalists believe in the existence of implied powers that proceed logically from those enumerated powers.

Nationalists believe in loose construction of the Constitution, today known as the Living Constitution. This is the idea that the Constitution evolves over time to meet changing conditions. This is the Constitution symbolized as a Tree.

Federalists believe in strict construction, today known as Original Intent or the Constitution-in-Exile. This is the idea that the Constitution’s words mean what they said when the Founding Document was written. This is the Constitution symbolized as a Rock.

To a Nationalist, the Supremacy Clause, located in Article VI, has precedence over the Tenth Amendment.

To a Federalist, the Tenth Amendment came later, modifies the Supremacy Clause, and is superior to it.

The first clash between the two competing theologies came with the creation of the first Bank of the United States in 1790. By this time, the Nationalists and States’ Men, who had taken the labels Federalist and Anti-Federalist during the debate over the Constitution, had coalesced into factions in the Cabinet and Congress, now calling themselves Federalists and Republicans respectively. To make it sufficiently confusing, Hamilton’s gambit created a Federalist faction under his control that was truly Nationalist, and a Republican faction under Thomas Jefferson that was truly Federalist.

The lack of a coin of the realm had doomed the republic created by the Articles of Confederation. Coins of the realm would be handled by the federal government at the Philadelphia Mint, but the creation of a money supply needed to be handled differently. The Constitution outlawed the states from making anything but gold and silver a means of payment for debts, but the federal government was not bound by that clause in Article I, Section 10.

As Treasury Secretary, Alexander Hamilton rolled the war debts of the states into a bonded national debt. This created a fiat money supply, monetized those worthless Continental dollars and created financial ballast for the nation. Hamilton saw a properly managed national debt as a benefit because it would encourage a basic conservatism in matters of finance. This would be a safe place for the unsophisticated investor to park his cash at a fair rate of return, rather than venture into the jungle of the New York Stock Exchange, which had also been founded by Hamilton. To manage this money supply, there had to be a central bank similar to the Bank of England. But there was no enumerated power in the Constitution giving the federal government the power to run a central bank.

No one objected to the Bank until became clear that the Bank would remain in Philadelphia while the rest of the government would move to a new site on the Potomac. The Virginians in the Cabinet and Congress feared that this was a dastardly plot by Pennsylvanians, and they suddenly discovered the Tenth Amendment, strict construction and enumerated powers.

George Washington was caught in the middle. He was a businessman, not a lawyer, so he turned to his Treasury Secretary for advice, asking Hamilton to put it in writing. Hamilton’s legal memo was a masterpiece that can be summarized in one simple equation:

Washington signed the Bank Bill. From that day forward, the fight over enumerated versus implied powers, and strict versus loose construction, would always be based on specific issues, not high constitutional principle. A politician could take a Nationalist stance on one issue, switch to a Federalist stance on another issue, and deny the slightest possibility of hypocrisy.

The States’ Rights argument was not connected to state defiance of federal authority. Rather, the idea was to keep the federal government’s involvement with the average citizen to a bare-bones minimum, restricted to the enumerated powers listed in Article I, Section 8.

By the late 1790s, America had become involved in a naval cold war with Revolutionary France. The country was divided, with Hamilton’s Federalist faction, which was a Nationalist construct, supporting Great Britain because it was the nation’s top trading partner. Jefferson’s Republican faction, which was a Federalist construct, supported France for sentimental reasons connected to King Louis’s support during the Revolution. But in the intervening years, King Louis had been shortened by the length of a head, replaced by a republic, which had been replaced in turn by the Reign of Terror and the Directory. Now France was less than a year away from the military coup that would give the world Napoleon and the Empire. It did not occur to the Jeffersonians that a revolution that starts the calendar over from the Year Zero, like the French Revolution and the Cambodian Revolution under Pol Pot, was a sign of national psychosis. This struggle was fought at home with pro-British and pro-French mobs battling each other in the streets of American cities.

The revolutionary government of France funneled money to set up organizations to influence American elections. These French-front organizations, known as “democratic-republican societies”, were no different than the Communist-front organizations set up by the Soviet Union during much of the 20th Century. This had the unintended consequence of turning the words “democratic” and “democrat” into epithets; the use of either word in an argument could lead to a duel.

What happened next stretched the bounds of Federalism to the breaking point. It started in Virginia with St. George Tucker. His theology of Federalism was extremely radical. He viewed the Federalist Papers as pleadings in a case, and he rejected that case. When the federal government began military preparations, Jeffersonian Republicans from Virginia and North Carolina viewed it as a possible move against themselves for their pro-French sympathies, similar to the Washington Administration’s military move against the whiskey rebels in Pennsylvania. In the Adams Administration, there was brief consideration of an expedition against New Orleans, held by Spain, a French ally. This would involve marching the Army through Virginia and North Carolina. The Virginia Legislature voted to appropriate arms for 5000 men, not to support the Army, but to oppose it. Tucker stated that if there were a war with France, 100,000 Americans would join forces with France and fight the US Army.

The legislatures of both Virginia and North Carolina began to discuss secession, but Jefferson told them that the coalition that held the Adams presidency together would fall apart soon. They should bide their time and not do anything rash.

In the midst of all this, President John Adams and the Federalist Party responded with the Alien and Sedition Acts, four laws some of which are still on books. The Sedition Act made it illegal to make defamatory and false statements about the federal government. Thanks to the fact that the Bill of Rights had not yet been incorporated upon the states, every state had sedition laws on the books, and some even had state religions. What rankled was the fact that sedition was now a federal offense, and that explicitly violated the 1st Amendment.

Thomas Jefferson anonymously wrote the Kentucky Resolution for that state’s legislature, arguing that under the 9th and 10th Amendments, the federal government could not possess the sole right to determine the constitutionality of a law, and the states had the power to declare laws unconstitutional and nullify them. This was because the states, not the Whole People, were the parties to the contract.

James Madison’s anonymously written Virginia Resolution took a position with greater nuance, declaring the power of a state to interpose itself between its people and a tyrannical federal government that had exceeded its authorized powers. What is astonishing is that Madison now abandoned his Whole People argument from the Federalist Papers and the Nationalist theology, went over the wall and joined Jefferson in his argument born of the Federalist theology.

But every state north of Virginia condemned the two resolutions, citing the Supremacy Clause of the Constitution. The Alien and Sedition Acts had made a dent in the street fighting, and the laws were popular.

This is where Patrick Henry entered the fray. A decade earlier, Henry had fought against ratification in a series of very long speeches to the Virginia Ratifying Convention. He had argued that the Constitution was flawed from the very Preamble, which should have begun, “We the states”. But since ratification, Henry had watched George Washington do something he had thought impossible, which was to run a clean administration. The French Revolution had frightened Henry, and he had gravitated to Hamilton and the Federalist Party. Patrick Henry, now dying of stomach cancer, condemned the Virginia and Kentucky Resolutions because the legal thinking behind them could lead to secession and civil war.

In time the Sedition Act expired, and upon becoming President, Jefferson pardoned those convicted under the law.

Up to this point, America did not have true political parties because George Washington had opposed their establishment with every fiber of his being. Washington’s body was cold for no more than a few days before the Federalist and Republican factions morphed into full-fledged political parties. Older history books refer to Jefferson’s party as the Democratic-Republican Party, but this is incorrect. Jefferson called his party the Republican Party. It was the Federalist Party that called the Jeffersonians “Democratic-Republicans” in order to link them to the violence in Revolutionary France.

Thomas Jefferson had seen himself as a true Federalist in principle. He reduced the Navy to a skeleton force and almost eliminated the Army, believing that the American citizen-soldier, the militiaman, was superior to the professional soldier fielded by Britain.

In the case of the Louisiana Purchase, Jefferson understood that the Constitution was silent on the matter of acquiring new territory, but Jefferson accepted Thomas Paine’s argument that the acquisition was simply a function of nationhood. That this was the argument of Alexander Hamilton, Jefferson’s archenemy, did not bother the President.

But it bothered the New England states and the Federalist Party that ruled there. It was understood that the expansion of the Union would lessen the influence of New England, and most especially that it would expand the domain of slavery. The acquisition would have such a profound effect on the nature of the Union that the New England Federalist Party took Madison’s argument about unanimous consent for the dissolution of the Union and stated that it would require the unanimous consent of the states to acquire the Louisiana Territory; an act of Congress or a constitutional amendment would not suffice. That argument went nowhere, and the New England Federalist Party retreated to proposing a constitutional amendment repealing the Three-Fifths Clause in Article I, Section 2, in order to prevent slaves from being counted in the census. This failed, and the next position of retreat was to demand a law similar to the Northwest Ordinance of 1787 that would ban slavery in the Louisiana Territory. Once that failed, the Federalist Party of New England began to mutter darkly about secession.

At this time, secession was the S-word. Not only was it a word no patriot would utter, it was a word no gentleman would utter. But there was no agreement yet that it was illegal. Here the traditional proponents of Nationalism were espousing unilateral secession, and the traditional proponents of Federalism were espousing federal supremacy. Jefferson saw no irony in this.

Publicly, Jefferson wished the New England states well if they chose to leave, but privately he sent Vice President Aaron Burr into the drawing rooms of the Federalist Party’s patroon families of New York to shut down any move toward supporting New England’s bid for secession. Burr, like Bill Clinton, understood that in politics the shortest distance between two points is often not a straight line, but a triangle. By adroit triangulation, Burr was welcomed in the houses of both Republican and Federalist patroons. Jefferson’s ploy worked, and the crisis abated.

That war started from a political error. England had offered Secretary of State James Monroe a deal on the issue of the impressment of seamen. Had Madison taken the deal, the other issues could have been settled by negotiation. But accepting that offer would have splintered Madison’s party, and the men of the frontier avidly desired war. Madison was caught in a bind.

America entered that war without much of a Navy and no Army. The charter of the first Bank of the United States had expired a year earlier, and there was no way to control the money supply. While there was enthusiasm for the war in the South and on the frontier, New England regarded it as folly and wanted nothing to do with it.

When President Madison asked the states to respond to levies for troops, New England refused. Daniel Webster, later to become the very avatar of Nationalist theology, defended the response of the New England states, justifying them by arguments from Federalist theology. New England banks refused to subscribe to federal loans for the war and instead opened a thriving business in British war bonds by way of Canada. Madison reacted by imposing economic sanctions on New England, and the Federalist Party of New England countered by calling the Hartford Convention to discuss secession.

The two men who presided over the Hartford Convention were patriots and had no desire for disunion, so they used the time-honored political and bureaucratic technique of sandbagging to prevent the convention’s hotheads from precipitating a crisis. The result was that the convention passed a number of toothless resolutions, the delegates muttered at each other, and then they all went home.

Madison’s reaction was to send the Army into Hartford. It was not there to break up the convention, which would have been a violation of the 1st Amendment, but as a potential show of force. Madison understood that when enemy troops were occupying the country, it wasn’t the right time for a discussion of the legality of secession.

Thanks to the primitive state of communications, the Hartford Convention occurred after the Treaty of Ghent had been signed and the war ended. In New Orleans, Andrew Jackson’s victory had also occurred after the war’s official end. But as the news of all three events arrived simultaneously, the activities at Hartford came to be perceived as treacherous and even treasonous.

Several things came out of that war. At Henry Clay’s insistence, Madison signed the charter for the second Bank of the United States. Realizing that the American militiaman’s performance was no match for the British professional soldier, Madison authorized a standing army that would be funded every two years to keep it in compliance with Article I, Section 8.

New England is where political parties go to die, and the Federalist Party, which had holed up in New England, expired within a few years with its members entering the Jeffersonian Republican Party as the National Republican wing. A decade later, the Republican Party splintered, with the Federalist theology represented by the Democratic Party, and the Nationalist theology represented by the Whigs. Thus finally ends the confusion between parties and constructs.

Andrew Jackson was a contradictory figure. In arguments between the federal government and the states, he always took the side of the states, except for one significant incident that will be studied here. As a Democrat and an avatar of Federalist theology, he was even willing to face down the Supreme Court in support of the states. Jacksonian federalism was an extreme flavor of federalism. Yet in spite of this, the federal government grew on Jackson’s watch because he needed federal patronage jobs for Democratic Party faithful.

Jackson was the first President to state that he was the national officer elected by the people. This was not quite correct. Jackson had been elected by the Electoral College, some of whose members were chosen by the people, and some of whose members were chosen by state legislatures. Jackson was the first President to possess a cult of personality and encourage it.

The problem that almost escalated into dissolution of the Union began with a campaign stunt in the 1828 election. Jackson’s campaign manager, Martin van Buren, came up with the idea of a tariff that would generate some enthusiasm in the North but none in the South. Jackson would then condemn the tariff and ingratiate himself with the South when the tariff was defeated in Congress. But Van Buren didn’t understand the extent to which New England had industrialized, and the poison pill he inserted into the tariff bill turned out to be Viagra. The North rose as one and applauded the tariff, the South condemned it, and the Tariff of Abominations was enacted into law.

Robert Barnwell Rhett led a group of South Carolina hotheads in a discussion of immediate secession. Vice President John Calhoun, also of South Carolina, had been a Nationalist, loved the Union, and came up with a way of sandbagging his state’s hotheads by reaching back to Jefferson’s language in the Kentucky Resolution to suggest nullification as the preferred solution.

In 1830, Daniel Webster debated Robert Hayne of South Carolina on arcane matters of taxation and public land that morphed into a debate on the very nature of the Union, with Hayne taking up a defense of Calhoun’s position on nullification. This was a major event in Washington City, as it was called then. For a period of several weeks, all work in the federal government stopped – which may have been a good thing – when Webster and Hayne, two of the great orators of the age, took to the Senate floor for their daily debates.

The problem was Webster’s Second Reply to Hayne and its last line, “Liberty and Union, now and forever, one and inseparable.” That speech was memorized by a generation of schoolchildren who took it to heart. In a sense, Webster’s Second Reply had the effect of amending the Constitution without actually going through the amendatory process. Now the idea of the permanence of the Union had been etched into the American psyche.

The practical effect of this went beyond simple nullification. What Calhoun was suggesting was:

Calhoun’s thesis, known as the Fort Hill Address, was reprinted throughout the country and received approbation even in New England.

In 1832, South Carolina announced its intention to nullify the tariff and stated that if the federal government attempted to collect it, the state would secede from the Union. In similar situations, Jackson had backed the states. But now he abjured his Federalist position in favor of a Nationalist position. Historians differ on why. Jackson responded to the South Carolina threat of secession by stating two simple equations:

Jackson saw no irony in finding himself in bed politically with his two Whig archenemies, Webster and Clay. South Carolina declared its nullification of the tariff, Jackson asked Congress for permission to send the Army into South Carolina, and he got it. The crisis ended with Henry Clay writing a smaller tariff, but the Jackson Precedent had been set:

When the battlefield cooled, who should check in but James Madison! The Framer was now 81 and four years away from the Sunday afternoon nap from which he would never awaken. He wrote a legal argument published in many of the nation’s newspapers that demolished Calhoun’s arguments. Madison had started as a progenitor of Nationalist theology, repudiated his earlier views to go over the hill with Jefferson as a proponent of Federalist theology, and then, after his experience as President, was safely back in the Nationalist camp, where he stayed.

Henry Clay had opposed a war with Mexico because he understood that the land taken as the spoils of war would have to be organized into territories. That would require renegotiation of the Missouri Compromise, and that could lead to disunion. In the aftermath of the war, Clay’s worst fears were realized when John Calhoun stated the doctrine that the territories weren’t federal in nature, but the common property of the states, merely administered by the federal government. Clay saw this as the first attack in a war over extending slavery.

Clay was the architect of the Compromise of 1850, and one of the duties he least relished was replacing the Fugitive Slave Act of 1793 with something more stringent. For decades Clay had been president of the American Colonization Society, a group dedicated to the gradual emancipation of slaves and their repatriation abroad. Clay owned a hemp plantation outside Louisville, and he owned slaves. The emancipation and colonization movement had always been part of the political mainstream, while abolitionism had been the movement’s lunatic fringe. To have a slave owner as president of the Colonization Society was a major coup. Clay understood that under the Constitution slaves were chattel, and the fact that a slave had escaped to a state where slavery was illegal did not make that slave free. The price for keeping the South in the Union would be a stricter Fugitive Slave Law that would override individual state laws.

In the negotiations over the compromise, there was a discussion between President Zachary Taylor and a number of congressional power barons, to include Alexander Stephens of Georgia. In a conversational remark made to Taylor, Stephens said that if certain items were not part of the compromise, Georgia would secede. To Stephens’ astonishment, Taylor pulled himself up to his full five-feet-six and told Stephens that if Georgia seceded, he himself would lead the Army into Georgia and hang every rebel. Taylor was from Louisiana, and his current home was Kentucky. He owned a plantation and slaves, and Stephens could not conceive of a Southerner taking the Nationalist position on secession. But Taylor felt honor bound to preserve the Jackson Precedent.

The reaction to the Compromise of 1850 in the North was immediate and approached violence. Wisconsin and other Northern states defied the Fugitive Slave Act, citing arguments out of Federalist theology, and threatened nullification and secession. The tables had neatly been turned. The South was arguing federal supremacy from the Nationalist theology, and the North was arguing States’ Rights. This irony did not go unnoticed in Congress and in the press.

The Compromise of 1850 was the last hurrah for Webster, Clay and Calhoun. Within two years, all three men would be dead, and a new generation would abjure compromise for confrontation.

Uncle Tom’s Cabin, or Life Among the Lowly by Harriet Beecher Stowe was published in 1852 and took the nation by storm. It’s not a very good book, but it totally changed the debate over slavery by putting a human face on the institution. Its effect was similar to the TV miniseries “Roots” in the 1970s. Thanks to the book, the political playing field shifted to move abolitionism into the mainstream. The book takes a more sophisticated view of the situation than one would realize today. The term “Uncle Tom” is a pejorative in the black community, but the character Uncle Tom in the book is a figure of grace, strength and dignity. Southerners are not presented as monsters, but as victims of a social and economic system not of their invention. The villain of the book, Simon Legree, is not a Southerner, but a Northerner transplanted to the South.

In 1854 the Kansas-Nebraska Act set off a guerilla war in Kansas as pro- and anti-slavery forces attempted to populate the territory in preparation for its being admitted as a state. The situation in Kansas radicalized Northerners, and for the first time abolitionists and moderates began working together.

In 1857 in Dred Scott v. Sandford, Chief Justice Roger Taney thought that a comprehensive decision upholding the Fugitive Slave Law would solve the slavery issue once and for all, but he only made it worse. His opinion went farther than the case warranted and stated that Scott should never have been heard in federal court because he was chattel, not a citizen. Taney also took Calhoun’s position that the territories were the common property of the states, and Congress could not ban slavery in them.

Then in 1859 John Brown’s raid in Virginia set the situation ablaze. Abolitionists had been pushed to terrorism to make their point, and it only got worse when it was revealed that the financial backing for Brown had come from prominent New England abolitionists.

The Whigs had attempted to have it both ways on slavery, and after holing up in New England, they were replaced by the new Republican Party, which became the party of the Nationalist theology.

In 1860, the South thought it had a way to solve the problem once and for all. The Southerners chose to splinter the Democratic Party into Northern and Southern wings, and elect a Republican as President, thus providing a pretext for secession. James Buchanan was a weak man, and the South thought that the Confederacy would be an accomplished fact by the time the Republican President was inaugurated. Lincoln was elected with barely 40% of the popular vote, and seven states seceded immediately. Lincoln understood that there could only be one President at a time, and until March, James Buchanan would have that burden. Lincoln was silent on the issue of secession, and as a result even more states seceded. Secession movements opened up in California, New Jersey and New York City.

Buchanan’s reaction was to uphold the Jackson Precedent and state that unilateral secession was treason, but he said that he lacked the authority to do anything about it. Technically, Buchanan was correct. When the powers of the presidency were debated at the Constitutional Convention, a proposal to give the President the power to call out the Army to end a threat of secession had been defeated by nine states to two. That power would reside with Congress or not at all.

In his inaugural address, Lincoln carefully laid out the Nationalist theology and the Jackson Precedent.

Unlike Madison, Lincoln was a practicing attorney. As a railroad lawyer, he had extensive experience litigating cases based on contract law and property law. He understood that if the Union were to be dissolved, a constitutional amendment would be the proper instrument. The first part of the amendment would dissolve the Union, the second would re-establish the Union with a list of states that chose to remain, and the third would authorize Congress to act on relevant issues. These would include the status of lands ceded to the federal entity by the states for military purposes, the settlement of debts by the states to the federal entity in gold, and the status of fugitive chattel escaping to the re-formed US. Lincoln asked the South to return its congressmen and senators to Washington to negotiate an amicable divorce. The final constitutional amendment would require the concurrence of three-fourths of the states, and Lincoln believed that would satisfy the constitutional requirements.

But when Beauregard fired on Fort Sumter, the equation changed. This was a rebellion, not a request for a divorce. The South had decided to forgo litigation in a court of law for a contest in the court of arms. Now the North’s back was up, and the time for negotiation had passed.

It’s important to understand the legal reasoning behind Lincoln’s actions. From his perspective, the secession of the Southern states had never taken place. Unilateral secession was unconstitutional, legally impermissible and thus impossible. What had happened was not the dissolution of the Union as ratified by the states but an insurrection, and he used all legal means to suppress it. As Lincoln saw it, Jefferson Davis was the pretend president of a nonexistent nation. Lincoln never permitted the word “Confederacy” to be uttered in his presence, but corrected the speaker that he must be referring to “those states in rebellion against the lawful authority of the federal government.”

In order to preserve the Union, Lincoln felt it necessary to mangle the Constitution in order to save it. Even Lincoln understood he was skating on the edge of the law.

After Lincoln’s death, Radical Republicans in Congress took the position that the South was a conquered nation, a violation of everything for which Lincoln had fought. They argued that states could be readmitted if they ratified the 13th Amendment, which abolished slavery. They went much farther with the 14th Amendment, which was worrisome even to Northern states because it was an intrusion of top-down Roman Law into a document built on English Common Law. Many Southern states simply refused to ratify, which prompted Congress to throw them out of the Union, reorganize them into military districts, and declare that they could return only if they ratified.

There were several legal problems with this. According to Lincoln, states could not leave the Union without the permission of the other parties to the contract. The Constitution makes no mention of military districts. Only states can ratify constitutional amendments, not territories, not military districts, not the District of Columbia, not Canada, not Mexico, not the United Nations – yet! In 1939, when the Supreme Court took the case of Coleman v. Miller, the Court chose to keep this can of constitutional worms welded firmly shut.

In 1869, the Supreme Court settled the basic issues of the Civil War in Texas v. White. In that decision it decided that secession was unconstitutional and the Union was both permanent and indissoluble.

John Hay, one of Lincoln’s two secretaries, who later served as Secretary of State under McKinley and Theodore Roosevelt, believed Lincoln to be the greatest of the Founders because he had cracked the Union formed by the original Framers and created a new Union in his own image. Lincoln may not have intended it, but those who followed him bequeathed the nation an early and primitive form of corporate fascism. The country was run by Big Business in general and Big Railroads in particular.

Federalism remained, as did the Democratic Party, which became the party of agrarian and small town America. But the Federalist theology was gone, a victim of the war. Federalism was no longer the defining argument. The new argument was:

The Jeffersonian impulse moved from Federalism to Progressivism. The Progressive Movement had come out of the Republican Party in the Northeast, where it acquired an Episcopalian flavor, and the Midwest, where it possessed a Lutheran flavor. The Progressives took a Protestant view of the world. They wanted to achieve Jeffersonian ends by Hamiltonian means, utilizing that powerful federal government to fix the political and economic systems before genuine radicals like the Grange Movement and the Populists could nationalize everything in sight. Their agenda included:

That last one had been suggested by Andrew Jackson back in 1829 along with the abolition of the Electoral College.

Like most movements, the Progressives spent thirty years in the political wilderness before gaining power with Theodore Roosevelt.

With the Great Depression and the election of 1932, Franklin Roosevelt cracked the Union created by Lincoln and replaced it with a New Deal Union in his own image. Corporate fascism yielded to democratic socialism as Big Government replaced Big Business. Thanks to the 1942 Supreme Court decision in Wickard v. Filburn, the federal government gained unlimited power over every detail of American life via the Interstate Commerce Clause in Article I, Section 8. The Tenth Amendment had become a dead letter by an act of the Court, not via the amendatory process.

After World War II, Federalism returned. Unfortunately, it returned to defend Jim Crow. That discredited Federalism and unleashed Earl Warren and the Supreme Court in a campaign to remake American society through judicial activism. Warren told his law clerks that he was less concerned with what the Constitution said than what was right or wrong. The problem is that the courts are not the proper venue for that discussion. What matters in court is:

The place for right and wrong is the legislature where the people’s representatives write the laws. Courts are not supposed to be in the business of legislating, but that’s not how Warren saw it. As he viewed it, it was the legitimate role of the courts to remedy social injustices.

With all restraints on the Supreme Court removed, activist judges issued the “One Man/One Vote” decision, took prayer out of schools, gave rights to criminals, wrote new laws governing abortion and upheld Affirmative Action. Justice William Brennan went so far as to say that the Court was not bound by the letter of the Constitution.

Beginning in 1912, the Democratic Party turned from Federalist to Nationalist. The Republicans remained Nationalist until Barry Goldwater brought the first fruits of libertarianism and Federalism into the party. The Republicans today remain divided between Nationalists and Federalists.

It is the Tea Party movement that has embraced Federalism. What has brought this about is the incompetence of the federal government in attempting to manage every aspect of American life, and the arrogance and viciousness of the federal government in preserving, protecting and defending that incompetence. By espousing a return to Federalism, the Tea Party movement has done nothing less than attack the Modern State itself.

Since the end of World War II, Americans have lived under the Modern State. The Modern State takes in vast amounts of tax money and distributes that money to certain favored constituents via the federal faucet. The Democratic and Republican parties exist today to fight over control of that faucet. The Modern State is how America projects power as the world’s policeman. The Modern State is how Americans govern and take care of each other now that the Modern State has destroyed American civil society. The Modern State is how the Union is held together, a combination of carrot and stick, pork and SWAT teams from federal alphabet agencies.

The Tea Party movement’s goal is to return to a model of Federalism closer to what America had before the Civil War, and that means the starvation of the Modern State. This is why the Mainstream Media, Wall Street and the federal government view the movement as a threat. From their perspective, there is only one way to govern in today’s world, and that’s the Modern State. They don’t believe that a return to the principles of the Founding Fathers is possible, desirable or even relevant. This is why they wish to destroy the movement. They view it not merely as a threat, not merely as subversive, but insane.

The democratic socialist paradigm is failing, and no one is quite sure what will replace it. But it will be either Federalism or Fascism.

For those who wish to do some reading on their own, there are several books to recommend.

States’ Rights and the Union, by Forrest McDonald, is the definitive book on Federalism, and no library should be without it.
Robert Remini’s seven volumes of The Life of Andrew Jackson is a lot of reading, but Remini has condensed his monumental opus into one volume for the layman.
Remini’s Henry Clay: Statesman for the Union is another book that looks at that period of history, but from a different angle.
The Great Triumvirate: Webster, Clay and Calhoun, by Merrill Peterson, tells how three men ran the country from Congress for 40 years while presidents came and went.

Federalist/Anti-Federalist ping. This is a 7000 word essay. Read it when you have the time.

I guess the Federalist/Anti-Federalist ping list which I am not on, is a different list from the Article V ping list which I am on.

Don’t want to overdo the ping list thing but this looks interesting. Publius, how often does the F/A-F ping-list go out on average?

8 posted on 10/20/2014 12:00:57 PM PDT by PapaNew (The grace of God & freedom always win the debate in the forum of ideas over unjust law & government)

I rarely invoke that ping list because there are so few really good articles on the subject. It may be an act of ego on my part that I would invoke it here, but I think I have some reasonably good educational material.

This topic drives me crazy...because every time I read this stuff I’m STILL left with the same problem: So, when somebody uses the word “federalist,” do they mean strong central government or strong state rights? And do THEY know the difference? Because if they don’t, everything is still confused.

You have hit the crux of the problem. Federalist meant — and should mean today — a greater emphasis on state authority than federal (or national authority). Hamilton’s little ploy still confuses people today. Thanks to Hamilton, people still tend to think of a Federalist favoring a greater national authority, when in the strictest sense of the word, it should mean the opposite.

Well, I’ve printed out this article to read later. The whole Federalist/Anti-Federalist thing interests me, so could you add me to that ping list as well?

12 posted on 10/20/2014 12:17:46 PM PDT by PapaNew (The grace of God & freedom always win the debate in the forum of ideas over unjust law & government)

Thanks. Definitely bookmarking. Very informative and poignant...especially the last sentence.

This essay started as a lecture I gave to a Tea Party organization in Georgia three years ago. I really had to work to get those last few paragraphs to sound right.

16 posted on 10/20/2014 12:48:35 PM PDT by PapaNew (The grace of God & freedom always win the debate in the forum of ideas over unjust law & government)

20 posted on 10/20/2014 1:10:27 PM PDT by yefragetuwrabrumuy ("Don't compare me to the almighty, compare me to the alternative." -Obama, 09-24-11)

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