Human liberty has two distinguishable but inseparable dimensions: the liberty of the individual to act according to his own reason and the corporate liberty of a moral community to pursue a vision of the good lived out in institutions and traditions that bind generations. These two dimensions are necessarily in tension. The individual’s autonomy can always transcend the current dictates of the community. Yet autonomy is not meaningful without the authority of an inherited culture through which it can be exercised.
Liberalisms of various kinds are inclined to see only the individual, abstracted from his moral community, as real. The task of politics, however, is to provide a system of legal protection for the liberty of the individual and for the corporate liberty of a valuable way of life uniting generations.
American federalism seemed the perfect solution to this timeless problem of politics. The states, as sovereign political societies, created a central government, endowing it with only enumerated powers, the most substantial of which were providing defense, making foreign treaties, and regulating commerce among the states. What was not delegated to the central government or necessarily implied in the delegated powers was reserved to the states. Individual liberty was protected both by the state constitutions and by federal authority, which created a vast free-trade zone among the states in which individuals were free to move. The states themselves, however, were the sole legal instruments for protecting a valuable way of life. What did they need protection from? The very central government they had created! The Bill of Rights was insisted upon not to protect individuals but to protect the corporate liberty of the states as distinct political societies. The First Amendment, which prohibits Congress from establishing a religion, was intended, among other things, to provide legal protection for the tax-supported churches still retained by some of the states.
American federalism was to be—and, in fact, long was—a rich mosaic of distinct political societies. If an individual found one of these societies and its laws oppressive, he could move to another. Local and regional economies flourished, and crossing into another state was often an adventure. Today, the states have been reduced to little more than administrative units of the central government. Cultural and moral distinctiveness has been flattened along with local and regional economic independence. The sterile, oversized, stainless-steel-and-glass office buildings that have become symbols of American cities and of the centralized managerial American state are faithful reflections of the abstract public soul of Americans. Only in private imagination and in private associations is an alternative vision of the moral life preserved.
The darkest warnings of the Antifederalists concerning what would happen to the political societies of the states if they joined the Union have been realized—and much more. How are we to understand this revolution? Many point to the Supreme Court as the main culprit. Through its expansive reading of the Commerce Clause, the Court has privileged economic centralization over local and regional economies and, in so doing, has rigged the rules to favor political centralization. And through perverse readings of the 14th Amendment, it has usurped powers reserved to the states and local communities under the Ninth and Tenth Amendments. Federal judges regulate law enforcement, voting criteria, and redraw voting districts without regard to the communities within them. They regulate morals, speech, welfare, and the public place of religion. To achieve abstract egalitarian goals, federal judges have coerced private contracts of all kinds; have forced children to attend schools out of their neighborhoods; and have ordered communities to raise taxes—something only the legislature can do—to meet social policies favored by the courts. Federal judges strike down state referenda and amendments to state constitutions that do not reflect their public-policy goals. They have even bothered themselves with the architecture and interior decorating of the school buildings they have ordered built and have regulated public-school dress codes and the length of students’ hair.
Notwithstanding these absurdities, however, it would be a mistake to see the Supreme Court as the cause of federalism’s demise. It is merely a symptom. The Court can do nothing without the support of Congress and the president. Blaming the Court encourages the illusion that, if only the Court could be reformed, federalism would be restored. But federalism is not a legal gift of the Court; it is a political gift of the states themselves. What the Court can give by a vote of five to four, it can take away by the same vote. The central government was created by political actions of the states and can only be restored by corporate state action.
There was a time when states were jealous of their corporate liberty and took action to protect their citizens from usurpations of the central government. James Madison, in the Virginia Resolutions (1798), argued that a state—being a sovereign party to the constitutional compact—had the authority and duty to “interpose” in order to block an unconstitutional act of the central government. Thomas Jefferson, in the Kentucky Resolutions (1799), went further and declared that a state had the authority to “nullify” an unconstitutional act of the central government. The case of Chisholm v. Georgia (1793) affords an example of how state-centered federalism was supposed to work. The Supreme Court ruled in favor of the plaintiff, who had sued Georgia over a bond issued before the Revolution. Georgia nullified the decision, arguing that, as a sovereign state, it could not be sued without its permission. The Georgia House of Representatives went so far as to pass a bill declaring that any federal agent attempting to enforce the Court’s order would be “guilty of felony and shall suffer death, without benefit of clergy by being hanged.” Jefferson also held that an unconstitutional act of Congress should be thought of as the act of a “foreign legislature” and “an act of treason against the State,” punishable by death. Other states did not deny Georgia’s nullification of this absurd act of the Supreme Court. Indeed, they agreed with Georgia and immediately put forth the 11th Amendment, which declared that an individual cannot sue a state without its permission.
From shortly after the first Congress met in 1789 down to 1860, states in every section of the Union frequently interposed and nullified what they judged to be unconstitutional acts of the central government.
A striking example of how state-centered federalism worked is found in the reaction to the deeply contested Article 25 of the Judiciary Act of 1789, which gives the Supreme Court appellate jurisdiction over cases in which state laws are declared unconstitutional. From the beginning, a number of states held the law to be unconstitutional. The Virginia Supreme Court heard arguments for six days and concluded, in December 1814, that Article 25 was unconstitutional. In 1830, the governor and legislature of Georgia also nullified it. President Jackson supported the state and worked to repeal the act. In 1854, the California Supreme Court nullified the act, as did the Ohio Supreme Court in 1856. The Wisconsin Supreme Court nullified it in 1854 and continued to do so up to the War Between the States. Thus, from 1789 to 1860, the constitutionality of Article 25 of the Judiciary Act was disputed, with the sovereign states themselves forming authoritative judgments on the matter in an effort to reach a true constitutional consensus. That this process was taking a long time is exactly what we would expect of a federal system based on the consent of the peoples of distinct political societies on a continental scale.
During the first 70 years of its existence, the central government was kept within the bounds of its enumerated powers largely by state interposition and nullification. After Jefferson was elected in 1800—save during the War of 1812—the central government was restrained from imposing inland taxes and had to content itself with living off tariffs and land sales, which were more than sufficient for its enumerated powers. The freedom the states enjoyed under federalism was not lost by the secession of the Southern states, for that would have enhanced the liberty of states and individuals by creating a competing jurisdiction in the form of a second union. In just this way, liberty was enhanced by the peaceful secession of 15 states from the Soviet Union, which was 70 years old when it was dissolved—exactly the same age as the American Union in 1860.
Federalism’s decline began with Lincoln’s doctrine that the states were not and had never been sovereign political societies. They were creatures of the central authority of the Union and, thus, could not secede. Though historically absurd, this doctrine was seared into the national consciousness by war and conquest. Interposition and nullification lost their authority as instruments of civil resistance to centralization. From then on, the only question would be which agency of the central government would take what role in the protracted project (a disposition of all modern states) of centralizing power.
Lincoln took the lead, expanding the powers of the presidency through force by raising money and troops illegally. He rounded up thousands of political prisoners by suspending the writ of habeas corpus, and he ordered the arrest of the Chief Justice of the Supreme Court when the latter declared this action unconstitutional. After Lincoln’s death, however, it was Congress’s turn to usurp power by using the military to impose the 14th Amendment by force.
On Lincoln’s theory that the Union is indivisible, no state had, or could have, seceded. The war was about putting down insurrectionists who had seized state governments. Once the pirates were removed—so Lincoln’s theory went—and loyal unionists put in control, representatives of the Southern states would be seated in Congress. It is essential to the legitimacy of a unitary American state to insist on this historically and legally absurd theory because, as Chief Justice Salmon Chase would rule in Texas v. White (1869), if it were acknowledged that a state had seceded, the invasion would have been an unjust war of conquest. Accordingly, governments conditioned by loyalty oaths were established—a few shaped by Lincoln himself—and Southern states were included in the votes necessary to ratify the 13th Amendment, abolishing slavery.
The 14th Amendment, however, was a different matter. It reserved to the central government the power to determine who would be a citizen of a state and further declared that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It seemed to many that this latitudinous language could be broadly construed to consolidate all important powers in the center and, thus, destroy the states as genuine political societies, though the framers of the amendment insisted this was not their intention.
The bill proposing the amendment was introduced in a rump Congress that refused to accept representatives from the Southern states—in violation of the Constitution, which guarantees representation to each state. The bill passed the House, but a straw vote showed it would fail in the Senate. Congress voted to unseat an outspoken critic of the amendment, Sen. John P. Stockton of New Jersey, even though he had been duly elected and legally seated by the Senate. The Constitution requires a two-thirds majority to unseat a senator. The vote, however, passed by a simple majority of one. He was, nevertheless, unseated. In this dark way, the bill was sent to the states for ratification.
There were 36 states, so it would take ten states to block ratification. Ten Southern states voted against the amendment, as did Maryland, Kentucky, Delaware, and California. Congress was undaunted and passed the Reconstruction Act on March 2, 1867, which declared that “no legal state governments” existed in the Southern states that had refused to ratify, despite the fact that no change had occurred in these state governments, which had been included by Congress in the number of states necessary to ratify the 13th Amendment!
The South was placed under military commanders who were to disfranchise most Southerners who had supported the Confederacy; these were to vote on a constitutional convention, ratify a new constitution enfranchising blacks, and ratify the 14th Amendment. The bill passed, despite President Johnson’s veto.
When Southerners appealed to the Supreme Court for relief, the Court claimed that it had jurisdiction only over rights of persons and property, not over the political rights of the states. On another occasion, when confiscation of property was made the basis of a suit, Congress passed a bill removing the Court’s jurisdiction over the Reconstruction Acts. Weary of military rule, and fearing the draconian threats of members of Congress to confiscate property—beyond the massive confiscations already under way—the Southern states “ratified” the 14th Amendment. Without the Southern states, the ratification would have failed. However, the “ratification” was not valid, because the votes taken were not acts of legal governments—by the express declaration of the Reconstruction Acts!
There were many other legal irregularities surrounding the 14th Amendment. Ohio and New Jersey rescinded their ratifications while other states were still considering the amendment. Oregon later rescinded its ratification. Congress, however, refused to accept rescissions. West Virginia was illegally carved out of Virginia, and Nebraska did not have the required number of people for representation in Congress.
Through brute force, the Lincoln administration and the radical Republican Congress opened the floodgates that held back the waters of centralization. During the early 20th century, it was the Supreme Court’s turn to lend its hand to the protracted work of centralization. Through the Incorporation Doctrine, the Court so broadly construed the 14th Amendment as to turn the Bill of Rights on its head. Instead of protecting the corporate liberty of the states from the central government, the Bill of Rights would now protect the sovereign individual from the political societies of the states.
This had two baneful consequences. First, when the shape of the public sphere began to be determined by federal judges, politics and civic virtue started to dry up. Americans have become so accustomed to this regime of legalism that they wait breathlessly to see what new shape the Supreme Court will give to their public sphere. Much of the entertainment on television consists of court dramas, real and fictional. The heroes of the managerial state are lawyers, and the clergy of liberalism are federal judges.
Second, taking social policy out of the realm of politics and transmuting it into constitutional rights has led to civil discord. If I am outvoted on a question of social policy, my position remains in the public realm as a legitimate minority opinion to be pursued on another day. If the question has been transmuted into a matter of constitutional right, however, my position suddenly becomes illegitimate. To insist on it is to invade your constitutional rights, thereby provoking a constitutional crisis. The Supreme Court’s adventure in social engineering has played a major role in wrecking the social fabric of America and perpetuating a condition of chronic civil discord.
Legal scholars, such as Raoul Berger in Government by Judiciary, have shown conclusively that the framers of the 14th Amendment meant only to extend basic civil rights to freed blacks, not to overturn federalism. But so what? No agency of the central government has an interest in enforcing a reversal of usurped power to states and local communities. The people themselves must recall those powers. What Americans must now acknowledge openly—and what some law professors are already saying—is that the Constitution, as a federal instrument preserving the corporate liberty of states and local communities, no longer exists. If the people wish to restore constitutional government, they will need to frame a new constitution, one that will limit the central government to jurisdiction only over delegated federal powers and provide—as Madison and Jefferson urged—some sort of veto by the states to protect against inevitable usurpations by the central government.
At present, the only veto the states have is the right to vote on calling a constitutional convention of the states. The convention must be called by Congress, however, which could refuse to do so on the ground of some legal sophistry or manipulate the agenda to render it ineffective. There is no reason to think that a contemporary Congress would not be as arbitrary and violent as the rump Reconstruction Congress was. That is why, in these pages, William Quirk once proposed a constitutional provision that would allow any state to initiate a constitutional amendment that, when ratified by three fourths of the states, would automatically become part of the Constitution.
The Confederate Constitution, which was designed explicitly to limit the centralization of power, allowed any three states to initiate and compel a vote on a constitutional amendment. This provision was intimated in Madison’s doctrine of state interposition and in Jefferson’s doctrine of state nullification. Had it been in effect, at least three states would surely have challenged the Supreme Court’s fantastic readings of the 14th Amendment regarding school prayer, abortion, and a host of other powers reserved to the states and local communities. Indeed, the mere threat of such a state constitutional initiative would have put a brake on the Court’s arrogance—itself a reflection of the arbitrariness and violence of the 14th Amendment’s origin. The fires being kindled today for Confederate symbols are consuming one of the most important historic ties to the federative republicanism of the Founding Fathers.