In the opinion of Marshall DeRosa, one of the contributors to this book,
The transition from states’ rights to unitary nationalism, i.e., domestic imperialism, was the most significant development in American politics. This marks one of the worst fears of the framers coming to fruition, tyranny.
That is a self-evidently correct judgment. It is also one I never heard during the four years I read American history as a graduate student at Columbia, where the unexamined assumption was that the progressive subjection of the states to the federal government, from the earliest days of the republic until what look increasingly like the latter ones of the empire, was a development as natural as the evolution of man from the apes, as inevitable as the triumph of liberalism itself. Rethinking the American Union is a worthy collection of essays written from every point of view—the moral one, perhaps, most importantly. No book that I know of so uncompromisingly reveals the fundamental dishonesty, intellectual and political, of the American nationalists’ project, beginning with the Constitutional Convention from 1787 to 1789 and continuing through the Federalists’ scheming in the early national period, Lincoln’s criminal usurpation of power from his invasion of Virginia until his death, Reconstruction by scoundrels and the foundations of empire by other scoundrels around the turn of the century, Wilson’s New Frontier and Roosevelt’s New Deal, right down to Bill Clinton’s Defense of Marriage Act and Obama’s Affordable Care Act. Things change—but not in Washington, D.C., for the past 227 years.
It is a logical proposition that the larger a state becomes, the more complex it is to govern, and therefore the more difficult. One of many reasons for this is that the bigger a state is, the harder it is to understand in a comprehensive way. And since what is harder to comprehend has, in human terms, less meaning, it follows that the larger the state and the society it presumes (or pretends) to govern, the more meaningless that state and society become to the rulers as well as to the ruled.
Donald Livingston has spent many years considering the factors that determine the proper size and scale of societies and governments. He agrees with Aristotle that everything in nature has its proper size, exceeding which it become dysfunctional. One may argue, of course, just what the ideal size of a human polity might be. Whatever one decides, it seems eminently reasonable to suppose that a nation of 305 million people reduces to meaninglessness any notion of a “public good.” “By virtue of size alone, Washington could not be anything other than a scene of frenzied pork-barrel spending, waste, inefficiency, corruption, and special-interest patronage for the politically well-connected.” And size alone encourages “an abstract ideological style of politics that favors universalist, egalitarian solutions applying across the board to all elements of the population . . . ” (“Introduction: The Old Assumptions No Longer Apply”). John Taylor of Caroline, a subscriber to the compact theory of the meaning of the federal document that was ratified in 1790, accurately perceived the aims of Alexander Hamilton and other proponents of the nationalist theory of American constitutionalism when he charged these men with the intention to restore the states to their former rank of provinces, as dependent upon “a supreme national government” as the colonies had been under British rule, and to create a national government that would invoke “national splendor” and “national strength” in its appeal to the popular imagination, while its true motivations would be “ambition and monopoly . . . intended to feed avarice, gratify ambition, and make one portion of the nation tributary to another.”
Long before ratification, adherents of the compact and the nationalist theories were already confronting each other. Notable among the proponents of the first were Thomas Jefferson and James Madison; of the second, Hamilton and, later, Justice Joseph Story, Daniel Webster, and Abraham Lincoln. Compact theory holds that the Constitution is a compact between sovereign states, which acting together created a central government to which they delegated powers precisely enumerated and defined by a federal Constitution. That being the case, each of those states has the power to “interpose” its authority by “nullifying” an unconstitutional act by the central power; and, if necessary, to retract its delegated powers and secede from the federal union. Against this understanding, nationalist theory asserts that the states were never sovereign, that sovereignty resided (and resides) rather in the American people—the sum total of the citizens of all the states taken collectively. Thus, the states under the Constitution are simply administrative agencies of the central government, which itself represents the general will of the American public. As mere bureaucratic units, they have the power neither to nullify acts of Congress nor to secede from the Union. In the early days of the American Republic the compact theory was taken for granted; from the founding era down to the War Between the States, as Livingston notes (“American Republicanism and the Forgotten Question of Size”), “the right of State interposition and nullification was exercised in every section of the Union.” Indeed, Thomas DiLorenzo says frankly, “Hamilton’s superstition that the ‘nation,’ and not the states, was sovereign is the biggest political lie ever told in America” (“The Founding Fathers of Constitutional Subversion”). To which Marshall DeRosa (“The Tenth Amendment Awakening, the Supreme Court Be Damned”) adds, “the transition from states’ rights to unitary nationalism, i.e., domestic imperialism, was the most significant development in American politics.”
One may say that it is the history of American politics from 1790 to Barack Obama.
As Kent Masterson Brown (“Secession: A Constitutional Remedy That Protects Fundamental Liberties”) suggests, the meaning of the Constitution in respect of the relationship between the central government and the states is so extravagantly clear that neither intellectual density nor even incompetence can explain how the compact theory was gradually overwhelmed and defeated by the nationalist one. It was raw mental and political will that did the trick, abetted by intellectual dishonesty, demagoguery, and sheer mendacity. Hamilton’s assertion in the New York State Assembly that the states under the Articles of Confederation were “artificial beings” only, never sovereign states, is embarrassing. John Marshall’s insistence that the “whole people” created the states is simply wishful thinking, while his claim for the penumbral existence of judicial review in the Constitution is sheer effrontery. (The text makes no mention of any such thing.) Justice Joseph Story’s claim (in his Commentaries on the Constitution, published in 1833) that the secession from the Union of a single state would mean “dissolution of the government” was a logical absurdity. (Why, then, did the Framers suppose that a Union comprising 9 of the 13 states—the number required for ratification—would make a viable central government possible?) Daniel Webster’s argument that “The Constitution . . . is not a contract, but the result of a contract; meaning by contract no more than assent. Founded upon assent, it is a government proper,” sounds like the argument of a failing law student flailing rhetorically in moot court. And as if to prove that there are lies, damn lies, and polytechnics, history has recorded for posterity President Lincoln’s words uttered in his First Inaugural Address:
[In] legal contemplation, the union is perpetual, confirmed by the history of the union itself. The union is much older than the Constitution. It was formed, in fact, by the articles of association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and expressly declared and pledged, to be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was “to form a more perfect union.”
But if destruction of the union, by one, or by a part only, of the states, be lawfully possible, the union is less perfect than before, which contradicts the Constitution, and therefore is absurd.
As one of the contributors to this volume has noted, a discontented union from which one or more of the malcontents has removed itself would logically be “more perfect” than the original one. Clearly, the unwillingness (or inability) of America politicians to think is a hallowed national tradition, and not a modern aberration from the norm.
(Marshall DeRosa notes, deliciously, that Article III, Section 3, of the Constitution states that “Treason against the United States shall consist in levying war against them, or in adhering to their enemies, giving them Aid and Comfort.” The italics are provided by DeRosa, who explains, “this is why Lincoln’s invasion of the Southern states was the very definition of treasonous behavior under the Constitution.”)
Lincoln, as Kent Brown shows, invoked “contemplation of universal law” and the “law of national governments” in making his claim for the perpetual nature of the Union, as if the perpetuation of a changeless federal government amounted to an Aristotelian principle. Subsequent nationalist interpreters of the Constitution were satisfied with less (perhaps because they didn’t believe in universal law). During Reconstruction, Chief Justice Salmon P. Chase argued that when Texas joined the Union she “entered into an indissoluble relation.” Later, with the question of an indissoluble union seeming settled in perpetuity, nationalist jurisprudence, led by the U.S. Supreme Court, continued its long march through the Constitution, creatively reinventing that document (and the country) as it went. Indeed, the first quarter of the 20th century is commonly accepted by legal scholars as the age of “creative jurisprudence.” “We must,” Justice Oliver Wendell Holmes wrote in 1920, “consider what this country has become in deciding what the Tenth Amendment has reserved.” By 1920, nationalist democracy (or democratic nationalism) had merged with unionism to form a civic religion, whose spirit President Wilson captured perfectly in an address delivered in 1916 to commemorate the place of Lincoln’s birth:
[T]he hopes of mankind cannot be kept alive by words merely, by constitutions and doctrines of right and codes of liberty. The object of democracy is to transmute these into the life and action of society, the self-denial and self-sacrifice of heroic men and women willing to make their lives an embodiment of right and service and enlightened purpose. The commands of democracy are as imperative as its privileges and opportunities are wide and generous. Its compulsion is upon us.
If George W. Bush were less eloquent nine decades later, it was probably because he had speechwriters like David Frum working for him, rather than readers of Herbert Croly’s sophisticated but misguided magazine and a bevy of young Princeton graduates around him.
Once the American Union had become an end in itself, independent entirely of government’s responsibility for the freedom and general welfare of its citizens, and once the U.S. Supreme Court had succeeded in establishing precedence over the state supreme courts and bending them to its authority, the nationalists had pretty much accomplished their original purposes, and also many subordinate ones that cropped up in the wake of success and that they were quick to exploit. “The checks,” Donald Livingston concludes (“American Republicanism and the Forgotten Question of Size”),
from the States on central authority in the form of interposition, nullification, and secession are ruled out. But this is just another way of saying that the central government can define the limits of its own powers. And that is what the American colonists and the ratifiers of the 1789 Constitution meant by absolute monarchy.
It is no less than textual and intentional fact that under the U.S. Constitution the American states have the right to secede, either singly or in combination, from the Union. Whether or not, or when, they should do so involves questions of political justice, political efficacy, and political prudence. The remaining essays in Rethinking the American Union address themselves to these issues. Kirkpatrick Sale proposes that “Economic and social misery increase in direct proportion to the size and power of the central government of a nation,” a proposition he calls the “Law of Government Size” (“‘To the Size of States There Is a Limit’: Measurements for the Success of a State”). And Sale is able to demonstrate that a nation need not be large and self-sufficient to succeed in the modern world:
. . . 85 of the 223 political entities counted by the United Nations are under 10,000 square miles—that is to say, the size of Vermont or smaller—and they include Israel, El Salvador, the Bahamas, Qatar, Lebanon, Luxembourg, Singapore, and Andorra.
The same holds for the states in the American Union: “[T]hirty-one of the States (plus Puerto Rico) fall in a range where similar sizes in the rest of the world have produced successful independent nations,” while 29 of the 50 states have populations below five million people. Not only is secession a way to revive democracy in America, it is, Sale believes, the only hope for a democratic revival. The United States as she exists today, as Yuri Maltsev quips of the defunct Soviet Union, is simply “too big not to fail” (“Too Big to Fail? Lessons From the Demise of the Soviet Union”).
The volume’s final essay (“Most Likely to Secede: U.S. Empire and the Emerging Vermont Independence Movement”), by Rob Williams, presents a personal challenge to this reviewer. Vermont, of course, is the only state in the Union to have been an independent republic before she chose statehood in 1791. My father wrote what is, to the best of my knowledge, the first scholarly account of how this came about, in Vermont in Quandary: 1763-1825, published by the Vermont Historical Society in 1949. Three years later he bought a rather extensive farm property in West Windham (south-central Vermont), where I spent four and five months of every year growing up in the 1950’s and 60’s, in blissful rustic solitude. It is true that Vermont’s subsequent secessionist movement, described in some detail by Mr. Williams, has been a relatively successful affair, as such movements go. On the other hand, the Vermont I knew as a child (and still know today) is light years removed from the left-wing political and artistic culture (largely imported, as my personal experience suggests, by transplants from New York and Boston) on which the secessionist program depends. Obviously, the fact that 70 percent of the Vermont electorate voted for Barack Obama in 2008 indicates that the new Vermonters have had a good deal of success in winning over the old Vermonters to their point of view. And that to me is more than a pity; it is a tragedy. The people my family knew (apart from a few genteelly wealthy intellectuals who deplored skiing, skiers, and the new ski culture that had begun already to transform Vermont) were flinty, rock-ribbed, hard-faced but neighborly Republicans endowed with supreme endurance, metaphysical resignation, common sense, and a dry, hard-bitten sense of humor. I can’t imagine one of them voting for Obama, but anything is possible in this world, and so it may be that some of them did, though it seems to me more likely that most were buried in the village churchyard by 2008.
At any rate, the reasons for the severe ambiguity I feel regarding the prospect of a free and sovereign Vermont under the Second Vermont Republic, with its street theater and puppet shows, should be obvious, despite the fact that, as a believer in secessionist politics, I must concede to the state of Vermont its right of secession from the United States. But there would be little or no possibility of my returning to live under the Second Vermont Republic, and I should stay on here, where I have lived for the past 35 years, in Wyoming—a state for which secession, either state or regional, would almost certainly mean imperialist takeover by the international energy corporations, manipulated from a distance by Washington, D.C., and Houston. Yet only a political and historical naïf imagines that secession would simplify human life and fundamentally reform institutional politics. There are no solutions to human problems, only new problems arising from the latest imposed solutions that somehow turn out to be more complex than originally imagined. Donald Livingston makes it a point up front to say that Rethinking the American Union is in no way a blueprint for anything, only a suggestion that a process of rethinking about the future of America should begin. In this, as in other ways, it succeeds admirably.
[Rethinking the American Union for the Twenty-First Century, edited and with an Introduction by Donald Livingston (Gretna, LA: Pelican Publishing Company) 272 pp., $24.95]