The right side of the World Wide Web has been aquiver with reports on Executive Order 13083, otherwise known as Bill Clinton’s attempted coup d’etat. How seriously should we take the Clinton plot to abolish the last vestiges of states’ rights? Setting aside the equivocations and dissimulations that mark all of Mr. Clinton’s official utterances, one can reduce his executive order on federalism (issued in Birmingham, England, in May) to two points: a very weak restatement of the principle that, under the Constitution of the United States, some powers are reserved to the states; and an aggressive and wide-reaching declaration of the conditions that entail an exception to the Tenth Amendment.

The first two exceptions, which involve interstate relations, are more or less justifiable. The rest are subjective to the point of being capricious. The federal principle is to be suspended when, for example, there is “a need for uniform national standards,” when “decentralization increases the costs of government,” or when states either have not protected individual rights or have failed to impose regulations from the fear that businesses would relocate. It is hard to conceive of any significant activity of state government that could not be usurped on at least one of these grounds.

Simultaneously with his decree that gives the coup de grace to constitutional federalism, the President also issued Executive Order 13084 on Indian Tribal Governments. On the surface, the EO appears to establish “regular and meaningful consultation and collaboration with Indian tribal governments in the development of regulatory practices on Federal matters that significantly or uniquely affect their communities,” etc., etc. In fact, the effect—and purpose—of the order is to circumscribe tribal sovereignties within a ring of federal regulations that will leave them only the name of sovereignty. The penultimate sentence is ominous: “This order shall complement the consultation and waiver provisions in sections 4 and 5 of the Executive order, entitled ‘Federalism,’ being issued on this day.”

Clinton’s orders are less alarming and more depressing than they appear at first sight: less alarming because they only confirm a status quo that has been established since the 1960’s; and more depressing because it probably does not matter what declarations and ultimatums are issued by the President. Real power is in the hands of a permanent establishment whose brains are in the federal judiciary and whose brawn consists of the tens of thousands of armed federal agents who, on mere suspicion, can raid your home, drive a tank through the walls, fill the rooms with toxic gas, and lay down a line of fire to prevent a few stray survivors from making their escape—all to the applause of congressional cheerleaders like Tom Lantos and Charles Schumer. (With Democrats like Lantos, who needs Nazis?)

If mere words meant anything, then Ronald Reagan’s beautiful Executive Order 12612 on federalism would have restored the republic. Reagan’s order not only reaffirmed the Tenth Amendment but went so far as to proclaim that “the people of the States created the national government when they delegated to it those enumerated powers relating to matters beyond the competence of the individual States.” In fact, despite Reagan’s best intentions (I think we should grant him that much), the centralization of power proceeded as rapidly in the 1980’s as it had in preceding decades.

“True but irrelevant” is the usual response of a sincere American nationalist. As much as he might regret the death of the old republic, the nationalist is a pragmatist who insists upon the recognition of new realities. With a little encouragement, he will go on to explain that this is a diverse nation of over 260 million inhabitants—citizens is no longer a relevant concept—and there is no reason that a people who subdued a continent cannot find a way of adapting their ancient Constitution to changing circumstances. “Even if we wanted to restore the states to their original rights and privileges, we would need all the power of a central state to accomplish the task. The real objective today is the reconstruction of the American nation, and while the interests of efficiency and even of justice might be served by a stricter application of the Tenth Amendment, the various devolutionist movements—whether they are calling for states’ rights or outright secession—by dividing the patriotic middle classes against each other, stand in the way of the populist uprising that will overturn the entrenched power of the current ruling class and rebuild Euro-American civilization.”

The argument makes a great deal of sense, and if there were any real prospect that Middle American Radicals would escape from the pages of Don Warren’s books and lead a peasants’ march on Washington, my heart (if not my head) would be with them. Unfortunately, a MARS attack on the federal government is about as likely as the restoration of states’ rights or an invasion of bug-eyed aliens from the red planet.

Supposing a populist rebellion did succeed, what sort of America would be restored? Here is the real fly in the imaginary nationalist ointment. States’ rights is not simply a part of the American political inheritance: it is the core that has defined us as a nation since 1776, when 13 colonies individually threw off the shackles that bound them to the British Empire. They not only opposed the corrupt regime of 18th-century England, but they also rejected the concept of the modern unitary state (see “Mob Rules,” October 1998).

The usual counter-argument—that the incorporation of the “principles of the Declaration” into the Constitution justifies the national government’s usurpation of the rights of the states—is the tawdriest sort of propaganda, which is not to say that there is nothing to learn from Mr. Jefferson’s “unanimous Declaration of the thirteen united States of America.” Consider only the orthography: “States” is capitalized, because they are the sovereign parties to the agreement, while “united” is merely a descriptive adjective. The pattern is repeated in the conclusion, which goes on to spell out the fact that they are “Free and Independent States.” Their unity was through the Congress, a body composed of diplomatic representatives of the several states. In November 1777, the specific and limited form of that unity was declared in the Articles of Confederation, whose second article stipulates that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled.”

In time, some (by no means all) American political leaders came to the conclusion that the Articles had to be modified in the direction of a stronger general government that could act decisively to settle disputes between states and provide a stronger common defense against the infant nation’s many enemies, not all of them foreign. It is not easy to determine the exact relationship between the Articles and the Constitution adopted ten years later. In one sense, the Constitution obviously supersedes the Articles, but it is not always easy to understand the provisions of the later document without having some knowledge of the earlier. The Tenth Amendment, for example, is clearly an attempt to declare that the states, in ratifying the Constitution, were not giving up their rights under the Articles except to the extent that certain powers were explicitly delegated to the revised government. Even some of the more general language of the Constitution appears to have been borrowed deliberately from the Articles so as to leave less room for misunderstanding.

James Madison, often called the “father of the Constitution,” complained that the general government of the United States was attempting “to enlarge its powers by forced construction of the constitutional charter which defines them,” adding that

indications have appeared of a design to expound certain general phrases . . . so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the States, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be to transform the present republican system of the United States into an absolute, or, at best, a mixed monarchy.

In Madison’s view, then, republicanism itself depended on the preservation of states’ rights, and he opposed the broad construction of general language (in, for example, the preamble) which, he says, could not possibly be misinterpreted because “having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued.” So, expressions like “common defense” and “general welfare,” as they are used in the Constitution, are to be read in the light of the Articles.

Madison’s protest against the centralization of power is not a personal expression in a private letter. It is contained in a set of resolutions passed by the Virginia House of Delegates in December 1798. Almost simultaneously, Kentucky passed an even longer and more explicit declaration of states’ rights. The gist is given in the first Resolution:

the several States composing the United States of America are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States . . . they constituted a General Government for special purposes. . . reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the power delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

This is the strongest possible statement of what became known as the “compact theory,” and in the eighth Resolution, Kentucky laid her cards on the table—and they were all trumps. Arguing that the unauthorized centralization of power “is not for the peace, happiness or prosperity of these States,” it is resolved that “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy. . . . Every state has a natural right . . . to nullify of their own authority all assumptions of power by others within their limits.”

The author of the Kentucky Resolutions was not a 16-year-old John C. Calhoun but Madison’s political chief and then-mentor, Thomas Jefferson. Madison, in drawing up the resolutions that were moved by John Taylor in the Virginia legislative, was acting in concert with (or, rather, under instructions from) Jefferson, who was working feverishly in this period to prevent the break-up of the federal union. A firm stand on states’ rights, he thought, would keep Virginia from bolting.

The Virginians were disgusted with the New England administration of John Adams, which (so they believed) was every day assuming monarchical dimensions, and they were infuriated by the Alien and Sedition Acts, designed to punish the Jeffersonians and their immigrant friends. “But if,” wrote Jefferson to John Taylor on June 4,1798, “on a temporary superiority of the one party, the other is to resolve to a scission of the Union, no federal government can ever exist,” because the habit of fissioning, once established, would not cease until North Carolina and Virginia would part company. “A little patience,” he concluded, “and we shall see the reign of witches pass over, their spells dissolve, and the people recovering their true sight, restore the government to its true principles.”

By 1798, Jefferson had quarreled with his old friend and colleague John Adams, and neither of the men (or their supporters) was capable of being fair to the other. The followers of Vice President Jefferson viewed President Adams as “King John,” a priggish and conceited despot in embryo and an enemy to republican government. The misnamed Federalists, on the other hand, red-baited Jefferson and his friends as bloodthirsty Jacobins, already sharpening the blades on their guillotines. There was some truth (though not much) in each side’s propaganda. John Adams was something of a prig—how could the descendant of Puritans help it?—and he had grown flat-footed, politically, from standing too much upon ceremony.

Jefferson, on the other hand, was subject to most of the follies of the 18th century. He believed in progress and enlightenment, viewed inherited rank and status as the enemy of humanity, and believed that the purely moral doctrines of Jesus had been perverted by priests and bigots into a system that oppressed the human mind. As a conventional child of the Enlightenment, Jefferson was a platitudinizing leftist with an ability to turn a phrase, an honest Voltaire, a Tom Paine with roots. But Jefferson did have roots in the soil of Virginia, with runners connecting him with the best families in the Old Dominion. It was not his fashionable radicalism or acquaintance with French intellectuals that made Jefferson distinctive, but the lessons he learned as a Virginian. Jefferson the radical is merely an American philosophe; Jefferson the Virginian is the great reactionary of the American political tradition.

Jefferson showed his two sides on virtually every issue, but as he matured, the Virginian slowly overtook the philosophe (a reversal of the Jekyll and Hyde story). In his early days, he spoke windily about the need for a new, more progressive education; he ended up both as a militant apologist for the classical tradition and—as Albert Jay Nock pointed out—as a staunch elitist. The authors of Who Killed Homer? are aware that Jefferson’s University of Virginia had something like an open curriculum. What they do not know is that UVA required graduates “to be able to read the highest classics in the language with ease, thorough understanding, and just quantity.” (Jefferson took a keen interest in Greek and English prosody.)

In his political struggle with Hamilton and his allies, Jefferson came to believe that Hamilton was attempting to reinflict the British system of organized corruption upon the American people. The fulfillment of this ambition required a centralization of power that went beyond the limits laid down in the Constitution: a national bank undergirded by a national debt that would make the government dependent upon the commercial interests who, in turn, would support the government; restrictions on the press that would prevent the emergence of a principled opposition; and a crackdown on foreigners that would quarantine Americans against the French political disease.

In protesting against the Alien and Sedition Acts, the Jeffersonians had to move cautiously, to avoid the impression that they were either opposing the ascendant Federalists for purely political motives or defending traitors and foreign agitators. Madison and Jefferson took their stand on the Constitution’s reservation of unenumerated powers to the states and to the people. In the Kentucky Resolutions, Jefferson goes to what seems to be the absurd length of insisting that “alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens.”

Even the most entrenched advocates of states’ rights would probably concede that immigration and naturalization are matters better left to the general government, but Jefferson’s position is far from unworkable. In frontier communities, for example, aliens were often allowed to vote in local elections, on the grounds that they were part of the local—if not of the national—community, and it is not too much of a stretch to imagine a federal republic in which Florida might choose to take in an unlimited supply of Cuban exiles who would not be allowed to enter Georgia. Contrariwise, Florida would have been able to reject both the “Marielitos” expelled by Castro and the Haitians whose highly dubious claims to refugee status were acknowledged by the federal government, much to the disgust of the people of Florida and their governor. The whole immigration debate might be depoliticized if border states were able to import seasonal labor without imposing them as welfare claimants and supposititious citizens on the entire nation.

A state-and-local approach would also defuse the abortion debate, the same-sex marriage crisis, Mormon polygamy, the war on drugs, and the gun issue. Nationalists will always protest, claiming that guns, drugs, and homosexual couples will find their way from one state to another, but Muslims have no difficulty, apparently, in bringing their harems and high explosives into the United States. Fifty separate (but cooperating) jurisdictions would have to do a better job of putting tourniquets on the spreading poison of drugs and automatic weapons than the manifestly incompetent and brutal murderers who work for the BATF, the FBI, and other agencies that maintain strict compliance with the Americans with Disabilities Act.

States’ rights and federalism, we know, are relics in the museum of dead ideologies; consolidation of power is inevitable and progressive, the wave of the future. But we live in the future, and it does not work. Perhaps it is time to give the sage of Monticello a second chance. He was, after all, no simplistic ideologue on the subject of states’ rights. As Dumas Malone points out, Jefferson had acknowledged the need to strengthen the government set up by the Articles; his criticisms of the Constitution “related, not to the reduction in the powers of the states, but to the lack of safeguards for individuals.”

In drafting the Kentucky Resolutions, according to Malone, “Jefferson went further in his emphasis on the rights and powers of the states vis-a-vis the general government than he had ever done before or was ever to do again.” This is not entirely accurate. The 1798 Resolutions may represent the high-water mark of his defense of states’ rights, but that is partly because the nature of the crisis demanded a strong and principled response. In 1800, Jefferson was in office and could hardly regard his own administration as a threat to Virginia, and his Virginia dynasty lasted through three presidencies for 24 years. However, it was only in his later years that Jefferson fully articulated his vision of decentralized political authority, both in his plan for a localized system of state education in Virginia and in his blueprint for a government of wards, outlined in a series of letters written in the last ten years of his life.

In Jefferson’s comprehensive vision, each level of government —national, state, local, and neighborhood—would have sufficient autonomy to manage its own affairs. Each ward (corresponding to a township or neighborhood) would be given “those portions of self-government for which they are best qualified, by confiding to them the care of their poor, their roads, police, elections, the nomination of jurors, administration of justice in small cases, elementary exercises of militia.” In short, says Jefferson, these wards will become “little republics . . . for all those concerns which, being under their eve, they would better manage than the larger republics of the count)’ or State.”

Ultimately, the principle of devolution works its way down even to the household, to “the administration of every man’s farm by himself” This principle, if carried out, would serve as a secure foundation of political liberty: “Where every man is a sharer in the direction of his ward-republic . . . and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but everyday . . . he will let the heart be torn out of his body sooner than his power be wrested from him by a Caesar or a Bonaparte.”

It hardU’ needs to be said that would-be Bonapartes and their lackeys are instinctively revolted by Jefferson’s vision. Today, he would be called President Moonbeam, because it is a mark of insanity to believe that a government can be anything but corrupt.

What are the inspirations for Mr. Jefferson’s vision? His own experience of managing an estate and working with his neighbors must have been at the back of his mind, but Jefferson also had read enough about the history of ancient Greek and Renaissance Italian city-states to know that political liberty and national creativity are always rooted in local attachments. His radically American dream may have drawn its strength from ancient and medieval sources, but despite the constant opposition of national and state governments, America remained a predominantly Jeffersonian nation through the 19th century. Most so-called public schools were owned and operated by communities as small as one of his wards, and the volunteerism that he recommends (“Get them to meet and build a log cabin,” he urges Joseph Cabell in describing how a local community can take charge of its own affairs) and that is described by Tocqueville was the spirit that animated the towns and villages that sprang up on the prairies without any “by your leave” from any of the Caesars and Walpoles who had taken up permanent residence on the Potomac.

When honest men ponder the future of the United States, they would do well to consider Jefferson’s recommendation that the best defense against dictatorship is the independence of neighborhoods, counties, and states. In a famous pamphlet, Ezra Pound floated the idea of Jefferson and/or Mussolini. As usual, Ol Ez was half right, but whatever good points Mussolini had, he was Caesarist. If that is what the nationalists of left and right desire for their country, I wish they would say so. But for my political leader, I shall take Jefferson without any ifs, ands, or buts.