ganic, and indivisible: “indestructible states in an indestructiblernunion,” as Texas v. White would put it. This formulation was,rnof course, nothing but a mask for power, and it ignored the factrnthat Virginia had been dismembered without its consent and inrnviolation of the Constitution to create the Republican state ofrnWest Virginia, and that Congress had dismembered the unionrnitself by expelling the Southern states that in theory had neverrnleft the union and had just recently ratified the 13th Amendment.rnAlthough there is no space to argue the point here, it seemsrnclear enough that, even without the Southern states, the 14thrnAmendment was not legally passed by Congress. But even if itrnhad been, Forrest McDonald has shown that it was not constitutionallyrnratified by the states. Yet this so-called amendmentrnhas been manipulated by the Supreme Court to turn the Constitutionrnon its head through the “incorporation doctrine.”rnThis doctrine, through judicial alchemy, has transmuted thernBill of Rights, which was designed to protect the states from therncentral government, into a grim rod of antinomic liberal individualismrnused to subvert the independent political societies ofrnthe states. The arbitrary use that has been made of the 14thrnAmendment and the consequent destiuction of the social fabricrnthat lias resulted from it is, nevertheless, a faithfiil imprint ofrnthe violence and arbitrariness of its birth, and indeed of thernbirth of the entire nationalist theory.rnBritish philosopher Alasdair Maclntyre has observed that tornread current decisions of the Supreme Court is to witness reenactmentsrnof Shiloh and Gettysburg. Tliere is today no intellechiallyrncoherent American jurisprudence. The Constitution is arngrant of authority by sovereign states to a central governmentrnendowed with only enumerated powers, hicoherence necessarilyrnarises from trying to read this document as the constitutionrnof a unitary state—as Story, Webster, Lincoln, and the gagglernof judicial activists spawned by the Warren Court haverndone.rnReform can only come through reviving the states as the substantialrnmoral communities and constitutional agents theyrnonce were. Runaway judicial activism must be countered withrnthe constitutional remedy of state activism. As far as the concentrationrnof power at the center is concerned, it matters littlernwho is President or which party controls Congress. The centerrnwill not (and perhaps, cannot) reform itself Political energyrnmust now be spent in forming a third part)’ devoted to genuinelyrnfederal principles and in electing state representatives andrnsenators endowed with the civic virtue to reclaim those powersrnthe states have allowed to drift away and to interpose state authorityrnto check unconstitutional action of the central government.rnSuch reform would of course overturn a large body of lawrnand judicial precedent. But righting long-standing constitutionalrnwrongs is more important than precedent. Nationalistrnliberals, in pursuit of a unitary state, have never worried aboutrnprecedent. The Warren Court and the rush of judicial activismrnthat followed it have overturned constitutional practices ofrnmore than 150 years. But the oldest of these usurpations is onlyrnsome 40 years. Surely that is not a sufficient span of time tornlegitimize a massive corruption of American’s fundamentalrnlaw.rnSome would acknowledge that usurpations by the centralrngovernment have occurred, but would say that they were justifiedrnin the name of a “higher law” to eliminate racial and sexualrndiscrimination. In a genuinely federated polit}-, there will bernpractices in some political units that will be considered unjustrnby those in other units; and it is understandable ttiat those believingrnthemselves to suffer injustice will be disposed to look forrna remedy from the center. Consequently, there will always berna political market for concentrating power at the center in thernname of human rights and for endlessly expanding the definitionrnof human rights. Most of the totalitarian regimes of thernmodern period, from the Terror of the French Revolution tornthe Marxist regimes of the 20th century, have claimed to supportrnhuman rights. What made them totalitarian was the destructionrnof those independent political societies (states, principalities,rnregional authorities, the Church) that had hithertornbeen a means of corporate resistance to tyranny from the center.rnThe people were then free of any injustice these intermediaternorders might perpetrate, but they were also bereft of theirrnprotection. Wliat has prevented the American polity from becomingrntotalitarian is not the current liberal notion of an everexpandingrnnumber of individual rights—for that has moved thernregime decidedly in a totalitarian direction—but the stubbornrnsurvival of its federated character. This bulwark, however, is inrndisrepair and will not survive unless it is understood, politicallyrnacknowledged, and imaginatively cultivated by state governorsrnand legislators.rnThere is indeed a “higher law” derived from the knowledgernof things human and divine. And one of the many things itrnteaches is that, in a polity of 265 million souls, the moral evilsrnthat humans are inclined to pursue can be handled better in arngenuinely federated polity of distinct political societies—eachrnpursuing its own vision of the human good and in moral competitionrnwith other societies—than in a unitary state. In arnregime of continental scale and size, a federation of states thatrnpreserve their distinct moral cultures, through interpositirnon and secession, is morally superior to consolidation into arnone-dimensional and dehumanizing unitary state. ‘CrnAn Historian’s (Or Someone’s) Apologyrnby Richard MoorernSometimes I see the world much clearer,rnmore striking, in my rearview mirror.rnI see, stalled in the traffic, thatrnthe car behind me’s an DCAT.rnIts driver, in that world of facts hernlives through, supposes it’s a TAXI;rnbut I can puzzle out each letterrnas well as he, and I know better.rnFEBRUARY 1998/17rnrnrn