Federalist/Anti-Federalist ping. This is a 7000 word essay. Read it when you have the time.
Ping. As promised.
Canteen ping, as promised.
Thanks for the ping Prof!
Thank you for this. Bookmarked for later.
Possible major federalism action coming from Arizona right now.
Most excellent essay.
Thank you for the work you put into this. I found it really interesting. I wonder though, do you know the origin of the original use of the word ‘federalist’? At face value, it does seem like it would mean a supporter of more federal power. I had assumed that the modern day usage of the word as applied to conservatives, was referring to a return to the government upon creation. Whatever arguments Hamilton made, surely the federal government in his mind would still be vastly more limited than the one we have today.
Absolutely fantastic! Outstanding! Must read!
And that’s how we got to where we are today. The “federalist” tea party rebelling against the nationalist/fascist/socialist/statist/corporatist big government entrenched establishment. One big ass can of worms.
read later
Thanks, bkmk.
Thanks Publius, my bedtime reading tonight.
Excellent essay, but your jarring misuse of the word “theology” undermines its message.
“Ideology” is the word you were looking for.
Hope you find it of some value and I welcome you comments. I've got stuff on my plate that may prevent immediate response but I'll do my best.
First of all, I want to congratulate you on a thorough and extensive treatment of this subject. If you included references and footnotes, this could be a Treaties or a Law Review article. And with a little tweaking, the title could be changed to, “A Case for State Nullification” (which I favor and believe can be a valid response by a state that in a good-faith finding, deems a federal act unconstitutional).
The subject of use and misuse of words to either clarify or confuse is as relevant today as it ever was. IMO, the misuse of words is a tool in the Leftist toolbox. “Liberals” are about less liberty and more government. “Feminism” is the opposite of femininity. And here, you expose the duplicity and a certain confusion in the use of the word “federalism.”
So understanding the meaning and concepts behind words and ideas are important. But my interest is more in truth behind ideas and values than in the use of certain tradition words. When a word or term has been corrupted through misuse or the use of the term itself has become an issue, I try to do a work-around by using other words that plainly describe the same thing. I am more interested in values and truths than in maintaining the traditional use of certain terms.
“Federalism” in its original meaning seems hopelessly lost in confusion, especially because our central government is formally called the Federal Government, so today, the average Joe might think “federalism” means more federal government. So I try to describe our form of government as a decentralized Constitutional Republic and the Constitution itself defines and delegates the limited powers of the federal government, all other power and right presumed to the states and people respectively.
Having said all of that, here are some of my comments and responses to your text.
Hamilton…appropriated the name “Federalist” from the true Federalists, the States’ Men, and put the true Federalists in the position of calling themselves “anti-Federalists”… 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.
Maybe one of the first modern records of a Leftist (proponent of big government) twisting language to further his ends. I call it Satanic, really, because Satan is the author of confusion.
To a Federalist, the Tenth Amendment came later, modifies the Supremacy Clause, and is superior to it.
Not sure I follow this. There seems to be some kind of conventional wisdom that the Supremacy Clause supports any law Congress passes as "the Law of the Land". This is actually the “positive law” theory at work: any law Congress passes is valid. But that is not how the Supremacy Clause reads. It says that to be the Law of the Land, treaties and the laws of Congress must be “IN PURSUANCE” of the Constitution. The Constitution IS the Law of the Land and is, therefore, the rule of law in the U.S. Any law Congress passes must be consistent with the Constitution to be the Law of the Land. Any law that is unconstitutional is not the Law of the Land and is not valid law in the U.S. Otherwise you have the “positive law” rule of man running the show and that is tyranny. We know the Founders were dead-set against tyranny and a basic intent of the Constitution was to establish the rule of law as the bulwark against tyranny. The text of the Supremacy Clause itself and the Tenth Amendment confirms that purpose.
[Hamilton] Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Implied Power
[Me] Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Laws Necessary to carry out Enumerated Power
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.
IMO, Madison was never a “Hamiltonian nationalist.” Madison (and others) knew the need for a central government for the protection of the colonies. Without a solid central government, they legitimately felt vulnerable to invasion from larger, stronger foreign powers. What distinguished Madison is he understood the presumption of the Constitution as expressed in the Declaration of Independence, that man is born with God-given rights which he confirmed in the Tenth Amendment that certain of those rights are DELEGATED by the states and the people to the central government via the Constitution. Thus Madison wrote the first ten amendments, not as the popularly called “Bill of Rights” (the rights are already there – totalitarian regimes like the USSR invoke “Bills of Rights” which they can just as easily revoke) but to appease the Anti-Federalists who (justifiably) feared a run-away central government that would not abide by these Constitutional presumptions of rights.
[Under Jackson] as a Democrat and an avatar of Federalist theology…the federal government grew on Jackson’s watch because he needed federal patronage jobs for Democratic Party faithful.
Suggests personal political welfare over America’s welfare.
Calhoun then stated his Theory of Concurrent Majorities:
The will of the absolute majority, as exemplified by Congress, can be vetoed by concurrent majorities of the states.
The practical effect of this went beyond simple nullification. What Calhoun was suggesting was:
If two-thirds of the states nullify a federal law, that law is repealed.
ONLY IF states find congressional law unconstitutional. Otherwise, nullification violates the Supremacy Clause. If a federal law is in “Pursuance” of the Constitution, then it is the Law of Land.
But now [Jackson] 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:
Nullification = Treason
Secession = Treason
Nullification does not = Treason if federal law is unconstitutional.
Secession does not = Treason if federal acts continue to unconstitutionally abridge and interfere with states’ rights.
Unconstitutional Federal Law/Acts = Treason.
It is important to note that back in the early 1800’s, states were fiscally independent and not in reliance of federal funds.
http://people.duke.edu/~ew41/Research_files/cps.03.pdf (page 478).
Today, however, states are slavishly dependent on federal funds.
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:
States may neither nullify nor secede.
Although the reason for the tariff was alleged to be mischievous, South Carolina’s nullification lacked constitutional grounds. The nullification was, therefore, invalid. The Jackson Precedent completely misses the point which is whether nullification or secession is based on an unconstitutional act by the federal government. Since the Jackson Precedent is also without constructional grounds, it is flawed and invalid.
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.
As we’ve seen, “theologies” and terms move around all the time. Going from “federalism” to “nationalism” could be as much a function of the changes in the meaning and “theology” of these terms as anything. The important thing to look at what Madison’s constitutional-based reasons were for his alleged “changes.” If Madison’s reasons were consistent, then his position represented no real fundamental change.
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.
At the time, the Constitution did not delegate the issue of slavery to the federal government. Slavery, like abortion and marriage, was a states issue, not a federal issue.
[Lincoln] understood that if the Union were to be dissolved, a constitutional amendment would be the proper instrument.
Not sure about Lincoln’s understanding here. Constitutional authorization is required for valid federal action. Not so with state action as confirmed by the Ninth and Tenth Amendments.
State secession doesn’t “dissolve” the union. The union remains less the seceded state(s).
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. Lincoln’s reaction was extreme:
All of his foregoing acts listed were unconstitutional.
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.
Yet if it could be shown that the federal government had acted to interfere with slavery, the southern states had a plausible constitutionally-based case for nullification/secession because the federal government had no constitutional authorization to interfere with slavery.
According to Lincoln, states could not leave the Union without the permission of the other parties to the contract.
According to Lincoln, but is his reasoning is constitutionally based? If not, then it’s just one man’s opinion and back to the tyranny of the rule of man.
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.
Nothing is “settled" when the Supreme Court makes a decision not based on the best understanding of the original understanding and text of the Constitution.
From http://www.americanthinker.com/2013/01/on_secssion.html : “Texas v. White, even if given the utmost respect, and considered binding precedent, does not stand for the proposition that no state may ever break its bonds with the Federal Government of the United States. At the same time, if it is considered the final word on the Federal Government's right to prohibit a state from seceding, then that right is far from established.”
Warren told his law clerks that he was less concerned with what the Constitution said than what was right or wrong.
The very definition of “judicial activism”: replacing the rule of law of the original intent and understanding of the text of the Constitution with a Justice’s own personal morality. Judicial activism goes hand-in-hand with “positive law”, which says a law is valid because it is a law, regardless of the Constitution. Both judicial activism and positive law are tyranny.
Thus,
The democratic socialist paradigm is failing, and no one is quite sure what will replace it. But it will be either Federalism or Fascism.
I would say the distinction and choice is between the Constitutional rule of law (which includes the decentralized power of federalism) or the Fascist rule of man.
Reading now.
The Founders had understood the term “means to an end” and had essentially made a list of “ends,” evidenced by Congress’s constitutional Article I, Section 8-limited powers, trusting Congress to perform its duty to accomplish its Section 8-limited ends by reasonable means. And this gives us an idea why the delegates to the Con-Con ultimately removed the word “expressly” from the 10th Amendment before ratifying the “Bill of Rights,” leaving it up to Congress to employ reasonable means to perform its Section 8 duties.
However, traitor Alexander Hamilton was the probably the first to exploit problems with the idea of “means to an end” which ultimately completely defeated the purpose of Congress’s Section 8-limited powers imo.
More specifically, probably the only reason that Hamilton attended the Con-Con was to convince his fellow delegates to grant Congress the constitutional Article I, Section 8-limited power to establish a national bank. In other words, Hamilton probably wanted to see an additional clause in Section 8 which gave Congress the power, the “end,” to establish such a bank.
But probably to Hamilton’s disappointment, when delegate Ben Franklin had suggested adding wording in Clause 7 of Section 8, the clause which gave Congress the power to make mail roads, to also give Congress the power to build canals presumably to facilitate commerce (mail roads and canals regarded as “ends” for Congress to achieve), the following happened. The delegates from some states feared that establishing a national bank, which the delegates didn’t want, would be a justifiable means for Congress to achieve its “end” to regulate canals. So since delegates didn’t want to give Congess an excuse to establish a natonal bank, a means becoming an unwanted “end," Franklin’s suggestion to add canals to Clause 7 was ignored.
Consider the following excerpt from Thomas Jefferson’s writings concerning this particular debate.”
“A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was, that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution [emphasis added].” —Jefferson’s Opinion on the Constitutionality of a National Bank : 1791.
I suspect that Hamilton planned “evasive maneuvers” from that point to get his national bank. This is evidenced by Hamilton later using his power as Treasury Secretary to argue such a bank as a “means to an end” in conjunction with the “necessary and proper” clause, Clause 18 of Section 8, to get his national bank, a strategy that ultimately worked.
To grasp the folly of this equation, all that is necessary is to a) realize that the practical definition of "Necessary and Proper" ultimately is a matter of opinion, and to me it is not quite clear which individual or entity claimed the ultimate exclusive and permanent right to make it.
And b) shudder to think that a William B.J. Clinton doppelganger took it upon himself to claim it. "Necessary." and "Proper" in the same manner as inventing an ambiguity in the word "is!"
Bottom line for me : a similar genesis for the unchallenged acceptance of "Law by Executive order!"