Idaho nullification dead? Thank the GOP

March 5, 2011

In response to a couple of blog posts dealing with the Idaho Senate’s tabling of the healthcare nullification bill found at the Spokesman Review, I wrote the following responses:

“How utterly incomprehensible is Bart Davis:

‘I agree that we should do all we can to push the federal government to return to its enumerated powers,” he said. “But for me, I need to do it within the system. … My heart, but not my mind, is with the supporters of this legislation.’

Do all that you can? Maybe he should have his words read back to him very slowly so that he can see how ridiculous they are. Staying within a system that has been warped and twisted means that you will NEVER stop the encroachments of the federal government. Doing all you can do is casting a vote FOR nullification. Nullification is not treason, it is one way to help states fulfill their role as part of a federal system.

Well done Davis et al. You all went from vanguards of restoring republicanism to ambiguous defenders of the status quo (which means federalism stays dead).”

AND:

“From reading the comments from those posting regarding nullification I have to ask: when you say that the Constitution is the supreme law of the land what does that have to do with nullification? What if practicing nullification actually helps uphold the Constitution by giving states a middle way between leaving the union and suffering under laws that are unconstitutional?
And why is it that those who quote (often incorrectly) Article Six never mention the gross violation of the Constitution under the Tenth Amendment? It is a bit suspicious that all of the emphasis among legal scholars (including our own David Adler) and layman alike is on violations that seem to be in favor of restoring some state authority. If you want to devolve power back to the states and create some balance you are a radical; a bomb-thrower; a home grown terrorist on par with McVeigh.
This predicament we as a nation find ourselves in (losing control at the local level) is a direct result of the central government absorbing too many of the duties and prerogatives that have always been under the authority of the state governments. Why are we halting and concocting fictional constitutional scruples at this time when action is needed most? The way is open for us, why won’t we seize it?”

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Federalist No. 25

July 17, 2010

Hamilton’s cynicism is our reality. We have fallen victim to a collusion, not one of direct complicity between the legislature and the executive but one of acquiescence. From Korea to Iraq, the national legislature, with the brief exception of the immediate aftermath of Vietnam, has given the president everything he wanted from tacit permission in launching wars to the appropriations needed to continue them. This is all done not under the pretext of invading Indians but of invading communists, terrorists or other subversives. Hamilton mocks “parchment barriers” that protect liberty as well he should, for we in the 21st century have lacked the will to hold our representatives to account for the gross violations of such wise protections.

Mr. Hamilton continues the subject of military matters under the proposed constitution in this essay. His basic thesis is that the national government ought to be in charge of the military. Because if each state was in charge of raising its own military, Hamilton foresaw that a few members of the confederacy would gain a disproportionate martial force because of the dangers inherent in their geographic locations, whether it be American Indian tribes or European empires. As Hamilton explains,

In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority.

Note the irony for the readers of the 21st century. His fear was that military establishments would grow disproportionate large and unruly if left in the hands of the states. But the very opposite has come to pass. Now, under the central and centralizing national government the military establishment is the largest in the world and has grown almost without measure.

After discussing the need for national control of the military, an argument that makes logical sense, Hamilton resumes his attacks on those that question and caution against the maintenance of standing armies. Here he reveals the basic philosophic differences between a nationalist/broad construction of the constitution and the more local/strict construction of Jeffersonian republicanism. He mocks the Anti-Federalists who desire to lay down “parchment barriers” which in his view will only be violated the first moment a pretense can be found, or as he argues a necessary cause. Hamilton, ever the broad constructionist argues against any provision banning standing armies from being inserted into the constitution as worthless and without teeth. How will one prevent a standing army from forming? How will parchment protect against a collusion of the executive and legislative branches intent on warmongering. Indeed, “how easy would it be to fabricate pretenses of approaching danger!” writes Hamilton. “Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power”. Hamilton’s cynicism is our reality. We have fallen victim to a collusion, not one of direct complicity between the legislature and the executive but one of acquiescence. From Korea to Iraq, the national legislature, with the brief exception of the immediate aftermath of Vietnam, have given the president everything he wanted from tacit permission in launching wars to the appropriations needed to continue them. This is all done not under the pretext of invading Indians but of invading communists, terrorists or other subversives. Hamilton mocks “parchment barriers” that protect liberty as well he should for we in the 21st century have lacked the will to hold our representatives to account for the gross violations of such wise protections.

The myriad violations not only of the war powers of the constitution but of nearly every restraint placed upon the national government laid down in Article 1, section 8 have produced the sorrowful state in which many understand the fundamental American law encapsulated in the constitution as “rules and maxims calculated in their very nature to run counter to the necessities of society.” What are our needs? Surely with the type of government we live under today it is one of insatiable appetite. One that seeks security in ruling rather than living in liberty. What are necessities for us today, mainly the maintenance of bases worldwide and acting in the role of international stabilizer, threatens to render or has already rendered the very fabric of the document that should be at the center of our political lives. With increasing centralization at home and maintenance of an empire of stability abroad that document drafted in the summer of 1787 is no longer fit to the necessities we have created for ourselves.

How many “wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.” This is why so many preach a “living constitution,” one that can be altered easily, can adapt to the growing demands of an ever-expanding national authority. For the lovers of liberty, this is a time of crisis and we must stand up or the constitution itself becomes a mere paper barrier.


Federalist No. 24

July 11, 2010

“And the arguments of those who, like the antifederalists, caution against an ever-expanding military with all of its accompanying externalities are quickly dismissed as the unpatriotic clamors of a “sinister and unprincipled opposition.”

Alexander Hamilton in Federalist 24 airs his frustration at the fear the opponents of the Constitution have concerning the new military power of the proposed national government. In short he cannot understand the cries of danger that emanated from antifederalists over the presence of standing armies in peacetime. He rhetorically states that a person just entering the debate at this point about standing armies must needs assume that the state governments “inserted the most precise and rigid precautions on this point, ” otherwise why would the opposition be so concerned now? But after discovering only North Carolina and Pennsylvania with constitutional provisions merely cautioning against, not expressly forbidding standing armies in peacetime, the impartial observer must suppose the “existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions.” And predictably such an explicit caution is no where to be found.

General Hamilton has plans for a standing army (click for video)

Why? Why if Hamilton is correct, did the Articles of Confederation not contain a prohibition against standing peacetime armies? What power did the congress under the Articles have to raise and keep such an army? Why would the Articles of Confederation contain such language against standing armies if it had not the power to raise and maintain such? This lack of power to raise troops, highlighted for Hamilton in Shays’s Rebellion, was the very argument he was making in highlighting the defects of the first American Confederacy. He knew why such a provision against standing armies was not in that document, it didn’t need to be. And clearly the legislatures of the states reflected more closely the will of the voting majority and could be kept under some control when it came to appropriating monies for such an army. But any one who today seriously doubts the threat a large standing army poses to the republican structure of government has a very different conception of what it means to live in a federal republic. With the abandonment of the constitutional and republican principles upon which both the colonial and early federal periods were built being nearly complete, the idea that large standing armies pose a threat both culturally and politically is seen as absurd. And the arguments of those who, like the antifederalists, caution against an ever-expanding military with all of its accompanying externalities are quickly dismissed as the unpatriotic clamors of a “sinister and unprincipled opposition.” This makes logical sense, for those who desire to keep up an overwrought military establishment to police the world today are heirs of the Hamiltonian persuasion.

Of course threats exist as Hamilton points out but even he states that the forces needed in peacetime were “small garrisons on our Western frontier,” before and after the Revolutionary War. The key word is small or better yet his meaning is closer to proportional to the threat. But as we have seen Hamilton was more than delighted at the prospects of war with France in 1798. Indeed after Washington, he was the highest ranking leader of the US military, which should give pause to swallowing whole his argument for the necessity of a standing peacetime army.

In the end, I am not arguing for a full and complete dismantling of our military forces, only that we recognize there are dangers of a huge military force both to our politics and the world’s. I only wonder what need there is for an “empire of bases” all over the world today? In the aftermath of the Cold War need we continue to build up? I know we are at war with religious extremists but are there not better ways to practice preemptive prevention without disproportionately expanding that peculiarly aggressive martial spirit while at the same time growing our presence abroad? Res publica, non certe imperium.


Federalist No. 23

July 7, 2010

“This philosophy of unlimited and undefined power, whether in military or civic affairs,  is arguably the most dangerous doctrine set forth by Hamilton in the Federalist Papers, and from the New Deal to the new healthcare law its logic is ruthlessly driven home by the national government on a routine basis.”

Federalist 23 signals a shift in the essays as Hamilton focuses his arguments away from why the Articles of Confederation are defective to why the union needs a more energetic national government under a federal system. Hamilton makes the case that the government needed is a government that has necessary power to effectively provide for the “common defense of the members,” preserve of the “public peace” and the “regulation of commerce”.

Centering on the need to provide for the common defense, Hamilton reveals a dangerous doctrine to republican liberty: namely unrestricted and undefined governmental powers. In terms of the martial power of the new government “no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” And this principle of undefined and unlimited power should extend to all political spheres of the new government because as Hamilton argues, it is a universal principle that the “means ought to be proportioned to the end.” And since the ends cannot be fully discerned in the present these “powers ought to exist without limitation”. This philosophy of unlimited and undefined power, whether in military or civic affairs,  is arguably the most dangerous doctrine set forth by Hamilton in the Federalist Papers, and from the New Deal to the new healthcare law its logic is ruthlessly driven home by the national government on a routine basis. But some will argue that it is only the progressives who are to blame, that they have abandoned the principles of limitation as set forth in the constitution. While that maybe true, they are simply following through with the principles as laid out in this essay by Hamilton. For the progressives and other believers in big government, the ends justify the means, whether those ends are total military dominance or the ending of poverty, government must be made to facilitate the good fight regardless of what rules have been laid down. This abandonment of what F.A. Hayek calls the “Rule of Law” means that the government is no longer “bound by rules fixed and announced beforehand,” a sure principle of republican government (Road to Serfdom, 80). While it is surely impossible and even impracticable to never have the means of purchasing a Louisiana territory, the exception has become the rule in modern American government and can clearly be traced back to Hamilton. So what is the result of such a political philosophy of undefined power? Tyranny and loss of liberty. This has happened so subtly over the last century and a half as to make one who suggests it now ridiculous. But thus did all the prophets of old appear in the eyes of those to whom they came. Read the rest of this entry »


Federalist No. 22

July 6, 2010

“Hamilton would hate the recent Arizona immigration law because it is not uniformly enforced throughout all 50 states. The antifederalists would be fine with it precisely for that reason: the people through their legislature have spoken…”

The list of defects of the system of American government that Hamilton continues attacking in Federalist 22 is so long that it makes one wonder why Americans ever agreed to it? Was it really as awful as Hamilton and Madison have presented it? Or have we all been told of “phantoms”? Either way some of the defects that Hamilton addresses in this essay alarmed both federalists and antifederalists, namely the lack of power among the national government to regulate commerce, provide for the common defense and adjudicate matters of national importance.

The main problem that Hamilton witnessed and decried as it related to commerce was the unsavory and unjust economic wars between states under the Articles. These often petty squabbles among neighbors were left unto themselves with no recourse whatsoever to a national authority. And because the Confederation Congress had no power to either set a uniform commerce policy or hear disputes involved it was in, Hamilton’s wording, an intrinsically feeble  structure that was going to sooner rather than later break to pieces.

In addition to the problem of commerce, Hamilton attacks the quota system used by the national government to raise troops during the Revolutionary War. The ineffectiveness of this system is quite evident in the want of men with which General Washington had to fight. Hamilton, being a veteran of that war, was well acquainted with the lopsided contributions from states closest to the action in comparison with those furthest away from battle. There is no doubt that a national system with proper authority is necessary to gather together an army but there are added dangers to a republic in making a system of levying troops too effective and well funded.

As touching the courts, Hamilton plainly states his understanding that the final say in legal matters belongs to them. “Laws are a dead letter without courts to expound and define their true meaning and operation”, Hamilton writes. He continues:

The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL…To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

The reasoning behind Hamilton’s statement is clear but the logic, if followed to its end would allow for and has allowed for a kind of “judicial tyranny” of a minority ( and an undemocratic one at that) to have a final say in any matter concerning government and laws and thus have a chance to overturn the majority will. But in this same essay Hamilton laments that under the Articles of Confederation each state had one vote. Thus the small and contemptuous Rhode Island can overrule the large and important state of New York or Virginia. In the end, there is in Hamilton a need to make uniform the whole system of government, something his antifederalist opponents shutter at. After all, why should each state be exactly the same as the others, if a majority of their citizens choose differently? To make this relevant, Hamilton would hate the recent Arizona immigration law because it is not uniformly enforced throughout all 50 states. The antifederalists would be fine with it precisely for that reason: the people through their legislature have spoken, thereby exercising their liberty and who cares if Utah or Florida follows suit?

In the end this fear of localism, which Hamilton demonstrates more so than any other founder, leads him to condemn the compact theory of the US Constitution. For Hamilton the idea of secession is a “heresy” and he admits such a possibility did exist under the Articles. To remedy the possibility of secession he suggests, “laying the foundations of our national government deeper than in the mere sanction of delegated authority.” Instead of the states being the source of sovereignty of legitimate government, “the fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE.” One mighty unbreakable empire. How long will that last?


Federalist No. 21

June 29, 2010

“For all of Hamilton’s faults both politically and philosophically, he had it right when he stated that indirect taxes ‘must for a long time constitute the chief part of the revenue raised in this country.’ This would ensure that the government was truly small and limited.

In Federalist 21 Alexander Hamilton relates the peculiar limits of the United Confederacy under the Articles. After having spelled in great detail the problems associated with republics and confederacies of the past, Hamilton does the same for the United States in 1787. Hamilton bemoans the awful situation, in his mind at least, of having the American government under the Articles with “no power to exact obedience, or punish disobedience to their [national government] resolutions”.  In a preview of his later ability to stretch articles and clauses to meets his needs, Hamilton sees the only way to give resolutions of the national congress teeth is to loosely construct the meaning of the Articles but he argues that this would  be difficult in light of Article II, which states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  This Article seems to have made it through the death of the Articles to become the basis for the 10th Amendment to the Constitution as part of the Bill of Rights demanded by anti-federalists. In this way Hamilton reasoned, the national government could have greater powers to act in its sphere. But this of course was not what the spirit nor the letter of the Articles meant, and Hamilton knew it.

So rather than a painful stretching of the Articles to meet the demands Hamilton foresaw for the young nation, he proposed ratification of the Constitution which would alleviate much of the problems that had plagued republics for centuries. It is interesting to note that Hamilton is reluctant to take a broad interpretation of the Articles of Confederation but is more than willing to do so with the US Constitution, and in fact might be considered the “Father” of loose construction of that document. Perhaps it was because he wanted to save the latter and scrap the former.

To further prove his point on the weakness of the national Congress, Hamilton relates the problems in Massachusetts: Shays’s Rebellion. Daniel Shays was a veteran of the Revolutionary War who, like so many other veterans found life at home economically difficult upon his return. To remedy this situation, Shays, with other veterans and fellow debtors marched on Springfield to seize arms and powder, close down courts and cause a general panic among the merchants and bankers. The rebellion was put down by Benjamin Lincoln after moneyed interest pooled together to raise a militia. From the days of Hamilton to the university class of today, this incident has been seen as an obvious reason for a stronger national government. It should be pointed out that anti-federalists gave minimal credence to this “little” affair and were weary of the way it was used to justify the Constitution. But as it has been said recently by the Obama Administration it’s a bad idea to let a good crisis go to waste.

Amongst all the discussion of the problems of the Articles, Hamilton does offer some solutions, particularly economic solutions to the national revenue problem. His suggestion is rather straightforward and might sound familiar to modern ears. He understands that the states must grant the national government power to raise revenues or face economic ruin.  He suggests this be done by collecting:

Imposts, excises, and, in general, all duties upon articles of consumption, [which] may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions…It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue.

Note the level of financial independence and management he assumes Americans will exercise, a faith that seems far from possible with today’s consumers and their government. Minus the bit about an excise tax, which will get Hamilton in trouble over whiskey, the idea of a consumption tax is rather fair minded. I have not researched this fully but might this be the origin for the modern movement for a FairTax? For all of Hamilton’s faults both politically and philosophically, he had it right when he stated that indirect taxes “must for a long time constitute the chief part of the revenue raised in this country.” This would ensure that the government was truly small and limited. But no matter how true the statement, it is slightly ironic coming from a man whose future plans and vision for America, which has become our reality, requires a government and military that is much too big for the type of indirect taxation whereof he writes.


Federalist No. 20

June 25, 2010

True federalism is not a “government over governments” but a sharing or more properly stated, a division of important powers.

Federalist No. 20 is the last in a series of articles on the light the history of republics shine on the defects of the Articles of Confederation. Hamilton and Madison again team up to demonstrate, from history, the need for a more active central authority. They chose as their subject the United Province of the Netherlands (1581-1795) to relate the misfortunes that doom even the greatest of confederacies that lack the necessary powers as proposed by the US Constitution.  After relating the political structure and organization of the Dutch republic, the authors make note of the inconsistencies of the Dutch confederacy as apparent from what is “delineated on parchment” to the actual experience of that nation. What the authors find is similar to the ancient republics thus far reviewed: “imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace and peculiar calamities from war.” In short, republican confederacies, like the Articles of Confederation are doomed to repeat the same problems over-and-over again until they adopt the important articles of the new constitution.

With each new crisis in the Dutch confederacy, which stems from “popular convulsions,” more power is called for from one province or person to correct the problem and thus in the end tyranny reigns over the republic in a greater degree than if the nation would have had a stronger, more active constitutional authority. So why did the Dutch republic survive as long as it did? Because it had the Stadtholder to keep it somewhat unified. This is meant to be an obvious attack of what the authors consider a major weakness of the Articles of Confederation, as it did not provide for any type of executive. “How,” might Madison and Hamilton ask supporters of the Articles, “can the United States remain even a loose confederation of independents when it has no executive authority to carry out laws passed by the national congress?” Without the stadtholdership anarchy would have broken up the Dutch union in its infancy. This is meant to be a clear warning to Americans in 1787 that the current constitutional regime could not long endure without active, unifying national forces.

But is that true? If as the authors wisely state, “experience is the oracle of truth,” does history provide one example of a modern republic that has endured without a national government with sufficiently broad powers to keep it together? The answer from what I know would be not one the size of the United States. The authors of Federalists No. 20 were indeed correct in such a conclusion. But from our present situation many of the benefits of such a strong union are revealing their weakness as well.  When the bread one earns is robbed by the “legitimate” hand of a national bureaucrat and distributed to a myriad of complex and shadowy uses one is compelled to wonder aloud if a strong, active government was indeed a needful thing. For what is the end of civil government? Is it to provide for every needful thing for every living thing? If this be the case then please let me leave to live my life elsewhere in a civil polity of my choosing. But we can’t leave; we must stay, for apparently somewhere in the document Hamilton and Madison were defending it states unequivocally we can’t. Surely it must be very clear that you cannot leave because the bloodiest war in American history was fought over the principle.

But despite the defects of the Articles, as pointed out by the example of the Netherlands, the authors make clear that they are not arguing for a unitary system of national government. They warn that a “sovereignty over sovereigns, a government over governments” is inconsistent with the “order and ends of civil polity.” So again, for all of their criticisms of the Articles of Confederation, Hamilton and Madison DO NOT argue for a strong unlimited national government but one with important checks not only among the central branches but between the states and the national government. True federalism is not a “government over governments” but a sharing or more properly stated, a division of important powers.