June 30, 2010 – Federalist No. 46 – The Influence of the State and Federal Governments Compared, From the New York Packet (Madison) – Guest Blogger: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law
Federalist 46 continues Madison’s arguments that the federal government could never dominate or obliterate the states. He sketches out possible scenarios of federal over-reaching, and explains why the states would prevail in every case. Addressing the worst-case scenario, Madison assures his readers that a tyrannical President with a powerful army could never impose his rule on America, because the entire American population possesses firearms.
Federalist 46 is important today because it is instructive about the right to keep and bear arms as the ultimate safeguard of civic freedom, and because of the growing trend of state resistance to the federal exercise power on intrastate activities, such as the use of medical marijuana, or other health care choices.
Madison begins by reminding readers of first principles. The federal and state governments are both servants of the same master—namely the people. Opponents of the Constitution act as if the federal and state governments were uncontrollable entities who would be at war with each other. To the contrary, both governments are mere agents of the people, who are the supreme controlling power. The people choose to use their federal and state agents for different purposes. So there is no reason to think that the people will allow their two agents to fight with each other, or to interfere with each other.
The people, who are the ultimate deciders, will be much more attached to the state governments, Madison predicts. For one thing, there will be many more state employees than federal employees. Not only the individual employees, but their family, friends, social networks, and so on, will therefore inevitably have more affection for their close-at-hand state employer than the distant, small federal government.
Madison’s prediction is still true. Beginning with New Deal, the federal government began to grow enormously, but state and local governments also grew rapidly. As of 2008-2009, there were about 3.8 million state government employees, plus 11 million local government employees. This compares to 2.8 million federal civilian employees, plus approximately 1.5 million active duty U.S. military. So today, the number of state/local employees outnumbers federal employees by about 4:1. To the extent that employment promotes loyalty, Madison remains generally right that the states have the advantage.
Then there’s practical experience. Madison reminds his readers that even when the Continental Congress was fighting the Revolutionary War, a task of supreme importance to everyone’s freedom, people generally liked their state governments better. Except for a brief period early in the war, the national government was at “no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.”
But from Teddy Roosevelt to Barack Obama, many Presidents over the last century have worked assiduously to build an idolatrous cult of personality around themselves. Over the last century, some men—including Calvin Coolidge and Ronald Reagan–have led successful political careers by resisting proposed enlargements of federal power. But many more politicians have built careers by promising that the federal government will do ever-more in taking care of the American people as a de facto parent.
Given the advantages currently possessed the by state governments, Madison continues, the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable. And if so, there’s nothing wrong with the people giving their confidence where it is most due. Even then, the states would have little to fear, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”
The nineteen-sixties were a time when Madison’s prediction about a transfer of affections proved prescient. At the time, the federal government was indeed far more competent and vigorous, and far less corrupt, than many state governments. National trust in the federal government rose to levels never since achieved. One reason for post-sixties decline is that as the federal government has tried to do almost everything, it has become less competent at carrying out its core functions. As Madison knew, only with a certain sphere can federal power be advantageously administered.
Another power advantage of the states is that persons who are elected to serve in the federal government will still retain some disposition towards particular state and local interests. In contrast, hardly any state or local officials will have a bias to favor federal interests over state and local interests.
Absolutely true, to this very day.
Suppose one side or the other goes too far? Again, Madison writes, the advantage lies with the states. If a state is inclined to infringe on the federal sphere, the state actions would presumably be popular with the people of the state, and would immediately be carried into effect by the state government employees. The federal government would have no practical means to overcome the states, except by the use of force, which would always be viewed with reluctance.
Conversely, if the federal government goes too far, the state’s people and government would refuse to cooperate, and could obstruct federal actions. If a large, resistant state were joined by its neighbors, it would be nearly impossible for the federal government to prevail.
This analysis proved accurate for a long time. Whether in a good cause (such as resisting federal implementation of the Fugitive Slave Act) or in a bad cause (resisting the Supreme Court’s desegregation orders from Brown v. Board of Education), state governments with strong popular support have often been able to frustrate locally-unpopular exercises of federal power.
But one major change upset the Madisonian balance. In the 1936 case United States v. Butler, the Supreme Court said that Congress could use its spending powers for purposes that had nothing to do with the enumerated powers which had been granted to Congress (such as the power to raise armies, set up post offices, and so on). Accordingly, Congress quickly started doling out money to state governments.
The result was to make the state governments into de facto wards of their federal sugar daddy. Whenever Congress tugged the purse strings, the states danced.
So Southern state government resistance to school desegregation did not end because of a few instances in which the President sent in federal troops to enforce court orders. As Madison expected use of military force was still a last resort. Formal southern resistance ended when Congress’s Civil Rights Act of 1964 cut off federal education money to segregated schools. A good result, although not all subsequent federal threats of withholding money would be for such benign purposes.
What about a worst-case scenario, in which a federal tyrant attempted to use the federal standing army to impose a national dictatorship? Madison derided the possibility, since the people would never consent to the long-term build-up of a powerful military establishment. Here, Madison was correct for about a century and a half. After the Civil War and World War I, the large federal military was quickly demobilized, and the standing army shrunk to a size appropriate for a mid-level European power, or less.
But the aftermath of World War II did not go as planned. The Soviet Union, rather than becoming a global partner in peace and stability, emerged as an aggressive superpower intent on taking over wherever possible, and seeking the ultimate destruction of the United States. In the resulting Cold War, the United States by necessity grew used to a large, permanent standing army.
Madison continued his hypothetical: the largest possible federal army could not constitute more than one percent of the total population. This is indeed the size of the current federal military, counting active duty plus reserves. But with conscription, the federal army could be much larger than that. In 1945, the U.S. military constituted 6% of the total population. (8 of 132 million.) Today, that would mean a military of about 18 million.
Against this federal army, Madison said, would be essentially the entire able-bodied male population, with their own guns, and organized into militias directed by the state governments. This huge force could never be conquered by the much smaller federal army:
To these [federal soldiers] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
The crucial reason why America was free and Europe was not that Americans had guns and state governments. The combination of the two would be sufficient to demolish any national tyrant:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
Fortunately, we have never had to see whether Madison was right that a federal tyrant with a standing army could be defeated by the people. We do know that in other places (e.g., Israel fighting for independence from Great Britain in 1946-47) armed popular forces have been able to drive out very strong armies. Of course the modern availability of nuclear weapons would give an American tyrant weapons which armed civilians could never defeat. But the use of nuclear weapons against Americans might well cause an outraged U.S. military to depose the tyrant itself.
In any case, we do know that Madison was right then and now about “the advantage of being armed, which the Americans possess over the people of almost every other nation.” In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.
Federalist 46 also shows the error of the notion that James Madison, the author of the Second Amendment, imagined that any individual could decide that the federal government was tyrannical, and then resort to violence. To the contrary, Madison envisioned that, in the very unlikely event that forcible resistance were necessary, it would be led by the states. Federalist 46 is an important corrective to persons (including gun prohibitionists who like to conjure up extreme scenarios) who imagine that a strong interpretation of the Second Amendment must lead to the legal authorization of anti-government violence by stray individuals.
Madison has been proven correct in regarding mass national armed resistance to federal tyranny as a very unlikely possibility. He was also right in a much broader sense, in that the American system of federalism, which many powers retained by state governments, and the American gun culture, with its associated spirit of self-reliance and responsibility, have helped form the freedom-loving American national character which has prevented the federal government from degenerating into despotism.
David B. Kopel is Research Director at the Independence Institute, in Colorado, and is Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law. www.davekopel.org
Given the differences in communications and the real possibility of federally controlled media and internet, at what point and by what manner do prudent Americans develop and maintain a communications apparatus outside of federal control? Something as simple as an earthquake has left civilian populations without the means to communicate with each other. It would be far simpler for a tyrannical leader to cutoff or misinform a population. They already do it every day, (not the cutoff part).
What has struck me is how strong State loyalty was up until the Civil War. It was almost and in some cases above allegiance to the Country. Case in point, Robert E. Lee, who resigned his commission in the Regular Army even though he did not hold with slavery. It would seem to me that this loss is a major contributing factor in the weakening of the check to federal power that was supposed to be the States, individually and collectively.
Greetings and Salutations,
Kopel’s insight into the Federalist Paper No.46 is exceptional and self explanatory. In fact I would go so far as to say there really isn’t much more to say.
The only point I would argue that is left out of this discussion and one that Madison himself didn’t for see is the establishment of a political army., such as in the case of Germany’s Brown Shirts from 1933 to 1939. (This evolved into the now infamous German Nazi SS who then were black.)
Obama during his campaign called for the establishment a para civil armed forces for the internal security issues which would be parallel, and equal to the US Armed Force. Such a move would introduce conflicts in jurisdiction with local and state police authorities. This would require such radical legislation that it would be difficult not to be a Constitutional violation.
As most members of Congress now openly admit to passing legislation that are all openly defiant of the constitution. It is clear that Madison’s insight and scenario’s recognized the possibility that mistakes will be made and that the frequent elections to replace representatives frequently (every 2 years) is the people greatest tool to restore power to the people. The practice of professional politicians is the true failure in America and is the one thing Madison and Hamilton called for as a serious threat to American Liberties. We now have proof to that end and it is up to us to simply break the cycle professional politics.
As a newcomer, this is my first posting. To start, I wish I had learned about this forum sooner & I am going back & reading some of the earlier posts as much as I can.
I felt a couple of thoughtful insights were to be found in #46. I was glad that Professor Kopel so ably articulated them. The idea that “the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable” is I would suggest central to the whole reason this blog exists. As Professor Kopel relates, up until the 1960’s, a segment of our population felt disenfranchised by & powerless regarding their local & state governments. The federal gov’t was their only recourse. People around the country who were sympathetic to their plight also saw the Federal gov’t as the only way of remedying the situation. So, a generation of people have seen the Federal gov’t as superior to state & local because the former has addressed injustices that the latter had actually instituted.
The task of lessening the power of the Federal gov’t is to ensure that local & state gov’t functions address the needs of their constituents regardless of rich or poor. If they don’t, the unaddressed needs will be elevated to whatever level it takes for them to be met. And, as Professor Kopel says, “politicians have built careers by promising that the federal government will do ever-more”.
The issue of loyalty, and where it lies, is an extremely important one. While Madison noted that people will generally have affinity for their state governments over the federal government unless the federal government is “manifestly better and more capable” this ignores a fundamental Progressive tenet that has been used to shift loyalty: Government largess.
Alexander Tytler is often credited with expounding on the relationship between government largess and the loyalty of the voters, and with good reason. Progressives know that the best way to shift loyalty to the federal government is to make the people dependent upon the federal government. The social welfare programs of the New Deal were specifically intended to create dependence upon and loyalty to the federal government and FDR himself, and it took 12 long years of dependency-culture politics for Americans to see the error of their ways, at which point they rushed to ratify the 22nd Amendment and reject Progressivism. We’ve forgotten that threat, and the creeping cancer has returned.
The welfare society that existed up until Clinton’s reformation in 1996 mired millions of poor people in both economic privation and servitude to the federal government. When your daily supply of food, shelter and clothing comes from the federal government, you will be loyal to whomever in the federal government promises to extend your benefits.
The welfare system radically shifted the loyalty of the dependent class towards the central government and away from the state governments. And this was part of the Progressive plan to marginalize state sovereignty and power. This plan continues today with the “carrot-and-stick” method of coercing compliance by the states by threatening to cut off federal funding.
Today, while welfare reform limits the lifetime benefits enjoyed by individuals and requires them to move out of the dependent class, the Progressives are tightening the noose of dependency around the necks of the states themselves by imposing more and more unfunded mandates and federal dependency on the states, and then using Congressional power over the budget to gain obedience to the Progressive agenda by the states.
But when the federal government takes money from state residents, skims the cream to fund the federal bureaucracy, and then jerks the strings of the puppet state governments in munificently returning a lessened portion of the tribute paid by the states, it becomes politically impossible for state representatives to stand up to the federal government and turn down largess, because like any politician, bringing home the pork is what’s most important to getting reelected.
This is where Madison’s intellect failed. He did not foresee the deliberate, calculated plan by Progressives to permanently affix the states to the federal teat using the expedient of the federal budget and unfunded mandates as the tool of enslavement.
We need “welfare reform” for the states.
Seth, thank you for clarifying the problem that had started to come into focus for me.
I agree we need “welfare reform” for the states, since the state governments have forgotten their place in the powers structure of our Republic. Our Republic was designed for the States to be the most influential, thus Senators were supposed to be chosen by the State legislature and sent to Washington, that way there was a way to bring them home if they did not perform their job subject to the individuals in their state. We have been disconnected from that influence as is evident in what is going on in both chambers of congress in Washington. We need to revert back to the strong state model as prescribed by the Founders.
Arizona is testing the Federal Government with their new immigration law to take effect in July 2010. Arizona was awash in illegals and after communicating with the feds to no avail wrote their own law, very similar to the federal government’s. Now the federal’s are threatening to sue the state government.
At first, all one heard from the outside sources were name calling and demonizing Arizona. Lately, other states are giving at least oral backing to Arizona. Let’s see if Madison was right, that several states banding together can make the feds back away without armed force.
I am concerned also that Obama’s civilian security army is totally unconstitutional. Does anyone know how far it is in gaining enlistees and what funding has been alloted to them for buiildup?
Very well said Seth. Until we end the dependency on the government for our basic needs we can not break free from their grasp. “Never bite the hand that feeds you”….we need to change the hand that gives us our “food” and take that control back for ourselves.
Kelly said,
“we need “welfare reform” for the states, since the state governments have forgotten their place in the powers structure of our Republic”
I agree with the idea that “we need “welfare reform” for the states”. However the sentiment “since the state governments have forgotten their place in the powers structure of our Republic” presupposes they ever knew “their place”. In any case I speculate even if they knew their place in our history there’s little they could have done about it. We ourselves haven’t known and/or required it of them, yet.
By we I mean the voting population. Let’s face it when it comes to voting we pay most attention to presidential elections, US senators and congressman less so, State officials even less still and forget about mayors etc. One only need look at voter turnout records to verify this assertion.
My point is I believe we should take care to make it clear to State officials that we will rally around them in droves if they defend us. Even more so we should take what we are learning here and encourage other voters to do the same. Imagine how much more empowered our State officers would feel if State office voter turnout doubled or tripled this year. I won’t go on hopefully you get what I’m driving at.
Jon, I beg to differ. We the people pay more attention to and know more about American Idol than the Presidential and other elections combined, how that for a bread and circuses mentality.
Jon, you make a very salient point. Our state and local representatives respond to votes and the support of the public. It’s as necessary for any politician as air. We too often engage ourselves in selfish and self-centered political decision making, asking only “what can government do for me.”
But when we demand that government “do for us” we empower government to bind us to servitude to the State, and rightfully so. As Madison said, if a national government is to be constituted, then it must be constituted with all the powers necessary for it to function, otherwise there is no point because faction will paralyze it. But allow it to wield all that power unconstrained, and it will enslave us all.
This is true at the state and local level too. And yet it’s an interesting dichotomy because there is nothing I pray for more in any government than paralysis. That government is best that governs least, and it is precisely the balance of powers that is supposed to prevent excesses on either end of the political spectrum by slowing things down to a crawl, where sober reflection and debate can chart a course somewhere near the center of public opinion and desire.
And yet what’s missing from our political debate is the willingness on our part to sacrifice and give up the benefits that government might offer us as an inducement to let it hammer home the rivets on the golden chains (or at least gold-plated) that Progressives want to set upon us. We say we want fiscal reform, but if it means affecting OUR financial status, we turn on our elected representatives like savage beasts and drive them from office for not granting us the largess we want while simultaneously unburdening us from the duty to pay for what we receive.
How many of us are willing to eschew Social Security, for example, even though we may be “entitled” to it? I have, and I know it’s going to be a hard row to hoe. But I resolved not to be part of the dependent class, no matter what, long ago, and I lived my life knowing that I would never accept one dime of government largess, so I’ve provided for myself and will forfeit whatever Social Security benefits I might have coming, because I’m not a thief, and refuse to retire on the backs of succeeding generations. That’s just immoral.
It is this schizophrenic public character that leaves us with representatives who pander rather than hold to the hard course. We, the People, need to decide who we are and what we really want. Do we want liberty and justice for all, or do we want comfortable protection from Mother State?
If it’s the former, we must face the fact that there are hard, lean times ahead and we must resolve to stop being selfish about our own pleasure and comfort and set to the hard work of reforging liberty through self-reliance and sacrifice. If it’s the latter, then we need do nothing, because the chains are in place and the hammer is raised above the anvil, and we will enslave ourselves by our complacency…and deserve it.
Oh how I wish there was political debate. What passes for debate now a days is nothing more than talking points and name calling. It is the rare venue that actually has a give and take on the genuine pros and cons of an issue.
What am impressive essay, and impressive comments following, and of course, the No. 46 itself! The states and the federal government, their roles and our roles, are all coming into focus, number by number, essay by essay.
Republic For Which It Stands
The states will sound the general alarm
And the people with sufficient storm
Will rally against all usurpation
That Federal forms against the norm
The genius of the people reign
And will forever be the mindful stance
Fervor will forsake the season
And be quieted by right circumstance
The Federal will know its place
And knowledge will be the armor
The people wear to venture forth
Reasoned passion is the banner
They know their rights, stand by law
The branches right all wrongs
With checks they witness righteous measures
And balance out the demigods
Hail the unity, Hail the purpose
Hail the mighty temperate pride
Raise the calling for all posterity
Deny not your inherent stride
Be the voice, be the vote
Continue your living legacy
Be the evergreen of scene
Ring true the blessed liberty
Janine Turner
June 30, 2010
[...] Federal Governments Compared,” from the New York Packet, by James Madison. My essay thereon is here, at Constituting America’s series on The [...]
Federalist No. 46 The Influence of the State and Federal Governments Compared How is this relevant today?
Tomorrow, Virginia Attorney General Ken Cuccinelli will appear before U.S. District Court Judge Henry E. Hudson to argue against lawyers from the Obama Administration, who have filed a motion to dismiss Virginia’s challenge to the recently passed healthcare bill.
Cuccinelli will argue that the provision that forces citizens to purchase health insurance by 2014 or pay a fine, is in violation of the Commerce Clause of the U.S. Constitution, because it compels citizens to engage in commerce.
Virginia recently passed a law stating that Virginians do not have to purchase health insurance. Florida has filed a lawsuit similar to Virginia’s, and over 20 states have joined.
Cuccinelli is quoted in today’s Richmond Times Dispatch as follows, “”The Commerce Clause [of the U.S. Constitution] does not give the federal government the power to order you to buy a product. We’re fighting to protect liberty as best as we can.”
The Richmond Times Dispatch article goes on to quote Governor McDonnell as saying that the healthcare legislation would cost Virginia an additional $1.5 billion in health care costs by 2022. One of the primary cost factors is the expansion of Medicaid.
As Madison predicted:
“On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”
And:
“They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.”
Throughout the Federalist Papers, the above themes surface again and again. The ultimate authority of the government derives from the people. If the federal government oversteps its bounds, the people will sound the alarm, and the states will rise to defend their rights.
For many years, and for various reasons the people and the states have let the federal government slowly encroach. But the people are awake, and are awakening the states. The alarm is sounding.
Tomorrow, Cuccinelli’s court appearance is an important step in guiding our country back to the path of liberty, and back to the constitutional structure envisioned by our founding fathers.
AND Thank you to David Kopel! I LOVED the breakdown of how many state, federal, local employees there are, and how many military! Last night when I read Madison’s statement in Federalist 45 that fewer people will be federal employees than state employees, I immediately began trying to find those numbers, and finally gave up, because it was so late. I was happy to read your essay this morning and see that you had them.
Thank you to all those who commented today, and thank you to our founder and co-chair Janine Turner for her great press appearances today on Laura Ingraham and Megyn Kelly! I believe it was Chris Wallace who said Janine is spreading the word like a modern day Paul Revere. I could not think of a better description. All of you who are participating in this blog, and in the Constituting America effort are great patriots, and our founding fathers would be proud.
Good night and God Bless!
Cathy Gillespie
For true political debate, it behooves us to side by side the Publius and Brutus articles. You’d see statement of problem, statement of solution, reasons for, counterpoint to the otherside’s argument.
Susan,
I agree with your sentiment as it relates to the entire population of the U.S. Somewhere in the federalist Madison said language and the written word was a terrible media for conveying ideas and I am a shining example of both limitations.
When I made reference to voters I noted “By we I mean the voting population”. My thinking was; we = voting population and voting population = actual voting population.
Now to the quality of knowledge of elections vs American idol, you’re point is well taken. This is the great challenge we face.
Cathy,
Excellent piece, and many thanks for bringing the “commerce clause” to our attention again. Seth, myself and others have written about this several times so I won’t go on except to say.
I believe the abuse of the commerce clause is the open ended license congress knowingly uses to violate the constitution and us. I would love to believe, I pray that if the American people understood this one single issue, (effectively an open ended contract in the government’s eyes) they would understand, and be afraid, afraid enough to change it.
I’m afraid that decision was made when We the People elected FDR, along with Congresses that allowed him to nominate all but one of the SC Justices who were responsible for the infamous Wickard v. Filburn decision. The question, then, is whether We the People are willing to realize our mistake.
Gradually we are coming to the realization that the populace came to at the end of WWI [our first dose of Progressivism]. A prime example of what happens when we allow our history to be edited and/or corrupted. “Those who do not learn from history are condemned to repeat it!”
Bravo Seth! I’m glad to hear someone else to who feels he (or she in my case) needs to be willing to give up our “benefits” to ensure the future of our country. I realize not all people can do the same, but for those of us who have the resources, we need to be willing to decline being dependent upon the federal (or state) government.
And, as others have suggested, we need to force and then support our states when they stand up for us! Our AG, Rob McKenna, has joined in the lawsuit against health care reform, even though our Governor is against him doing so. McKenna is receiving a lot of support from the citizens of Washington state.
“But ambitious encroachments of the federal government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm.” I wish this were more in evidence!
I agree Seth that we need to give up any “right” we feel we have to Social Security. I’m NOT well off and have paid into Social Security my entire working life, but I realize that it is a program that does not work the way it was intended. We can not continue to take from future generations to support the current. You can not always bank on the future. Look at our current jobs situation…..if people are not working they are not paying into the pot. There will also be times when you take in more money than you need and times when you don’t take in enough. Unfortunately, Congress can not keep their hands off of money that may be in excess to save it for the leaner years. I have already written off any money that my family may have “claim” to for paying in.
A key point most posters missed and that was not really addressed in the essay is that it still was voters who have approved of the expansion of the federal government. Voters elected congressmen and presidents who supported the expansion of the federal government. Most are reelected, and there is rarely any movement to undo expansions because those expansions are popular with the majority. To put it in the terms of Madison’s Federalist 46, the state voters have turned over authority to the federal government. This is not the state governments or the federal governments acting in abstraction, these are voters all across the states. The expansion of the federal government has not resulted from some nefarious plot, but the active decision of voters. This is the result predicted by economist/philosopher Joseph Schumpeter as a result of the success of capitalism in his treatise Capitalism, Socialism, and Democracy.
Another issue about the size of the federal government and competence, the article points to clear historical examples of clashed between the state governments and then makes broad claims about federal incompetence. I challenge that. What about the National Institutes for Health? Voters of all stripes love that. The Dept. of Labor? Workers, not so much entrepreneurs, have greatly benefited. Dept. of Education? A little unnecessary, but very competent when given the right authorization. An then there is the federal judiciary. Without the administrative state, we would need a massive expansion of the federal judiciary to handle private claims by individuals against multi-state corporations because every claim or issue now handled through agencies would be fair game for a law suit. For example, Dow dumps chemicals into a local river, it would not be the Environmental Protection Agency that takes action, it would have to be a private claim of nuisance to stop Dow from polluting your yard.
Andrew, the Dept of Education is competent??? I beg to differ strongly. As evidence, there is an article in today’s news that there is a problem with finding qualified employees – can not do basic math, follow complex instructions, can not read above the 8th grade level. Whereas if you go back in history and find an 8th grade advancement examination from the latter portion of the 1800’s I seriously doubt many college students would have advanced to the 9th grade.
Good point Andrew.
Few people realize that the power of the Federal Government is in its ability to set the standards of weights and measures to make them uniform across all the states AND the regulation of the court system. It is the duty of Congress to monitor the operating costs of lawsuits that span inter-state affairs; and when these judicial proceedings get to be too costly, it behooves congress to pass statutory law to summarily regulate the judiciary on a temporal affairs of a certain nature. Passing laws that Congress is not expressedly granted as an enumerated power in the Constitution can only be justified IF the purpose of the law is to cut court costs.
In an interconnect commerce of states where corporations, employees, and markets span across state boundries, and then how technology has drawn us closer together than ever before with ready access to jump on a plane for a meeting the same day or join a web conference at home, it is inevitable that the Federal would aggregate central regulation power by proxy of its constitutional power to regulate the Federal court system.
Andrew, I must disagree with your implication that only federal bureaucracy is capable of dealing with issues like health and the environment. The states are fully capable of not only regulating conduct within their own states, they are perfectly capable of creating “confederations” of unified state organizations through intergovernmental agreements and multi-state compacts. The Colorado River Compact is an example of states cooperating to fairly apportion the waters of the Colorado River precisely to PREVENT the federal government from interfering in fundamentally state issues.
If someone dumps chemicals in a local river, then state authorities are the appropriate avenue of redress. The EPA is in fact one of the many federal bureaucracies that needs to be defunded and dismantled precisely because it arrogates too much power to the federal government.
Take the case of the Delta Smelt. Central California agriculture is withering away, unemployment rates in the area exceed 45 percent, and people are literally going hungry and are having to abandon some of the most fertile agricultural lands in the nation because the EPA thinks it’s more important to divert water for the protection of a tiny and biologically insignificant fish, the Delta Smelt, under the authority of the Endangered Species Act.
But the Delta Smelt exists nowhere but in California, and it should be up to the state of California to decide if its economy and it’s people are more valuable than the Delta Smelt.
This example of the disdain of human beings and the elevation of other species to the egregious detriment of humans at a national level demonstrates why the abuse of the Commerce Clause must stop, and why such decisions must be left to the states, and the people who are affected by such decisions.
Another example is the response to the oil spill in the Gulf of Mexico. It was reported today by the Associated Press that an environmental group has filed suit to prevent BP from burning surface oil on the presumption that it might harm endangered sea turtles. Now, I don’t want to deliberately hurt sea turtles, but give me a break! It’s far more important that the oil be burned and prevented from contaminating the shore, where the ecological devastation would be even worse, not to mention that not burning the oil is just as likely to harm sea turtles as burning it is. But the objectors prefer ideological purity over practicality and necessity, which is one of the major failings of the ESA.
So, the question isn’t whether there should be an administrative state, it’s WHERE the power should lie, and it’s NOT with the federal government, which is supposed to be a limited government of enumerated powers, not an Imperial Executive with administrative power to do without constraint that which it finds convenient or useful. Any administrative state should, for reasons of Separation of Powers and state sovereignty, be kept as close to those whom it affects as possible.
If by the underlined you refer to something conceived by human agents, probably not.
What you’re forgetting is the ability of the judiciary to expand executive powers, as it did by collusion with the executive branch in Wickard v Filbun, and by fiat in Massachusetts v EPA.
I am happy that there were a few civil responses to my challenge. Still, nobody has adequately addressed the issue of voters actively choosing to allocate power to the federal government.
Posters also focus on Wickard v. Filburn but ignore the United States v. Lopez, striking down the Gun Free School Zones Act, which held the federal government may act under the commerce clause if the action itself affects interstate commerce.
Further, what makes the Federalist papers the ultimate authority on interpretation of the Constitution? Yes, Madison was the chief drafter of the Constitution, but like all legislative interpretation, all that matters is what language is in the final text. The Supreme Court has interpreted the Constitution to allow the federal government to act and so that is what the Constitution means.
Voters seem to like that reading and so it is not a matter of what the Constitution means in an idealized world that ignores 220 years of history but getting voters to elect leaders who share the constitutional vision of this site.
Other than this case appears to be an attempt to use the commerce clause to limit the 2nd amendment what makes this case different from the use of the commerce clause to limit the individuals freedom of ownership of property for the sustainence of his family?
I don’t see anyone here claiming SCOTUS always gets it wrong, so I don’t know what your point is.
Beyond that, especially on constitutional questions, SCOTUS needs to get it right every time; and when they don’t, their ruling needs to be ignored by the other branches, and Justices who assent to rulings as odious as Wickard need to be impeached.
Again, I don’t see anyone here making this claim.
No, what matters is the meaning of that language, and documents like the Federalist Papers are invaluable in ascertaining that where it is not patent.
Here you’re absolutely dead wrong. If SCOTUS is the final arbiter of the meaning of the Constitution, then oaths to protect, support and defend same amount to pledges to bow to the will of nine unelected, black-robed Ephors.
Andrew, it is true that in the abstract sense, the People have permitted the federal government to attain more and more power, but this is not a matter of them doing so “actively,” which suggests that the voters actually voted on the issues directly, which of course they did not. The vast majority of expansions of federal authority have taken place in the chambers of the Supreme Court, and it’s important to note that of all the branches of government, the Court is the one branch that has absolutely NO direct representation of the public. Supreme Court Justices are appointed by the President and confirmed by the Senate under the “advice and consent” provisions of the Constitution, and they are appointed for life.
The problem with this system is, of course, that a radical president, like Woodrow Wilson, or FDR, or Barack Obama, or George Bush, can use vacancies on the court to set the political agenda for decades into the future. The People themselves have little to no input into this appointment, but they are ultimately subject to the breadth of power that the Court deems Congress may exercise. This cannot be seen to be a direct choice by the people to grant new authority to the government.
Thus, one cannot really say that the voters “actively” chose to allocate power to the federal government, since the allocation was actually performed by an unelected Supreme Court. One argument in this regard is that Supreme Court Justices should be nominated by the President, examined by Congress, and ratified by popular vote.
However, it is certainly true that we, the People, have been complacent and remiss in REVOKING arrogations of authority granted by the Court to the Congress. Part of this problem lies in the great (and deliberate) difficulty of amending the Constitution. While the Constitution authorizes the calling of a Constitutional Convention by the states, this method has never been used, in part because a Constitutional Convention is a very dangerous thing. Once opened, EVERYTHING is on the table, unlike a Congressionally-instigated amendment, which can be on a specific subject. Thus, there is great reluctance to meddle with the Constitution on the part of the People, which is a good thing, but which also has unfortunate consequences from time to time, like Prohibition. Part of the purpose of this site, and this discussion, is to begin the dialog about whether it’s time to call a Constitutional Convention to, among other things, amend the Commerce Clause. I think it is.
In my mind, what’s needed is a citizen-initiative process that permits the circulating of petitions to Congress for an amendment. The text of the amendment would be set forth by the petitioners, and if some fixed percentage of the citizenry, say 10 percent, sign the petitions, the amendment would be submitted to the Senate, and the Senate would be required to consider and vote upon it. If the Senate passes the amendment, then it goes to the state legislatures for ratification
At this rate I feel we here discussing are akin to the 1st Continental Congress. I for one, a year or so back undertook to make the language of the Declaration of Independence more accessible to the teens in my sphere. What ultimately came out was a document that is my interpretation of what the founders would have written had they been looking at the current iteration of the Federal Government. When I read it over, I scared me into learning more about our true history not as it is propagandized by our education system.
Seth’s sentiments on the SCOTUS allowing encroachments by the Federal is very key.
And a revised method for the citizenry to be able input amendments is something I had in mind like first getting an amendments convention method as an amendment itself to the US Constitution, then there would be a means to rally the people and the states around a cause that may not require approval of the US House; but I do like the US Senate having a vote, much like how the US Senate is the chamber to approve treaties with other nations accept this is like a treaty among the several states. This however would require repeal of the 17th Amendment to restore State representation.
I also would purport a few conventions of action that citizens can also partake in to annul runaway Federal power spurred on by the SCOTUS.
1) Acquittal by Impartial Jury of Peers and Rule of Law.
2) Personal interpretation of law by the Common Law and Rule of Law.
1- Juries have the power to acquit somebody guilty of breaking a law; but the citizens themselves either deem the law as unlawful, or the application of the law as unjust and so disannul the government from putting somebody in jail. Then we have the Rule of Law. The Rule of Law says that judgment cannot be overturned and is final. No other authority can change a decision made between one party against another party. But that is just it. That is only a judgment between two parties and falsely is construed to be as law because of the court’s propensity to keep legal decisions consistent. But a jury can acquit and make the SCOTUS precedents of none effect.
2- Our laws have a civil code basis on the Common Law. We are a Common Law country. All our legal underpinnings and legal terms have their origins in the Common Law and must be interpreted as such. To not do so would be to change the meaning of the Constitution and thwart the entire amendment process. James Madison decried such a practice calling out the interpretation of yesterday’s laws into today’s meanings, intents and purposes, thereby ignoring the people, states, and legislatures who put a law on the books in the first place, as injustice. [I have not relocated the source of James Madison's sentiments here.]
As much as US academics and media, and Progressives, want to deny it the Common Law is the defacto law of the land because that is exactly what our Constitution was argued upon. International Law lawyers know this too even though Americans seem to be ghastly, and purposely, made ignorant of it. In many European countries the civil code is based on the Civil Law, and in many Muslim countries, the Sharia Law; but in this country, the civil code basis is the Common Law. In the 1880’s the SCOTUS began to depart using the Common Law and altogether used Case Law, which essentially is arbitrary law, to interpret law. If we as citizens demand a restoration of Common Law, then the SCOTUS would have much less wiggle room.
Jon Said: Let’s face it when it comes to voting we pay most attention to presidential elections, US senators and congressman less so, State officials even less still and forget about mayors etc.
This is yet another symptom of the 17th Amendment. When the Senate was selected by the Legislature, that was yet another reason to pay close attention to whom you voted for state legislature.
Additionally, the states could check federal expansionism in the Senate, as the pre-17th Amendment Senate was designed to represent the state governments as opposed to representing citizens.
As time goes on, the brilliance of the old white guys who designed the system astounds me more and more.
Additionally, the arrogation of tax and spending to the Feds and sending the funds back to the states (with strings) has crowded out the ability of states to operate autonomously.
No matter how badly Tennessee (for example) might want to withdraw from the federal funding and extortion system set up by Congress now, there is not enough revenue remaining for the state to refuse managed federal funds and take care of their own affairs.
“In any case, we do know that Madison was right then and now about ‘the advantage of being armed, which the Americans possess over the people of almost every other nation.’ In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.”
I was reading the American Rifleman magazine (NRA) a year or two ago, and they interviewed this Japanese soldier from World War II. They asked the soldier, why didn’t Japan immediately invade the west coast of the United States after Japan crippled our Pacific Fleet at Pearl Harbor in December 1941.
The Japanese soldier replied that they weren’t stupid: Japan knew that American citizens had the right to bear arms–which means the Americans were well-armed.
Today, there are 300 million firearms in America’s arsenal of liberty.