Monday, August 10, 2009

Who Watches the Watchmen?

In framing a government which is to be administered by men over men you must first enable the government to control the governed; and in the next place oblige it to control itself. - James Madison

Thomas Woods on states' rights:

In 1798, the legislatures of Virginia and Kentucky approved resolutions that affirmed the states’ right to resist federal encroachments on their powers. If the federal government has the exclusive right to judge the extent of its own powers, warned the resolutions’ authors (James Madison and Thomas Jefferson, respectively), it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. The Virginia Resolutions spoke of the states’ right to “interpose” between the federal government and the people of the state; the Kentucky Resolutions (in a 1799 follow-up to the original resolutions) used the term “nullification” – the states, they said, could nullify unconstitutional federal laws.

These ideas became known as the “Principles of ’98.” Their subsequent impact on American history, according to the standard narrative, was pretty much confined to South Carolina’s nullification of the tariffs of 1828 and 1832. That is demonstrably false, as I shall show below. But it isn’t just that these ideas are neglected in the usual telling; as I discovered not long ago, these principles are positively despised by neoconservatives like Max Boot and the leftists at the New York Times (or do I repeat myself?). Neither one, in their reviews of The Politically Incorrect Guide to American History, so much as mentioned Jefferson’s name in connection with the Principles of ’98. It is hard to view such an omission as anything but deliberate. To mention Jefferson’s name is to lend legitimacy to ideas that nationalists of left and right alike detest, so they simply leave him out of the picture.

Jefferson once wrote, “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.” To resist this centralizing trend, the sage of Monticello was convinced, the states needed some kind of corporate defense mechanism.

Ralph Rossum, in Federalism, the Supreme Court, and the Seventeenth Amendment, wrote, regarding the Supreme Court's decision in US v Lopez,

Justice Anthony Kennedy wrote a concurring opinion with decidedly more activist overtones; he emphasized the need for the Court to "ensure that the federal-state balance is not destroyed." He found it strange that, "of the various structural elements in the Constitution, separation of powers, checks and balances, judicial review, and federalism, only concerning the last does there seem to be much uncertainty respecting the existence, and the content, of standards that allow the Judiciary to play a significant role in maintaining the design contemplated by the Framers." However, has he understood that the framers depended not on the Court but on constitutional structure, i.e., the mode of electing the Senate, to protect federalism, he would have found it less strange. And, further, had he understood that the ratification of the Seventeenth Amendment removed the structural protection of federalism and therefore fundamentally shifted the federal-state balance, he would have appreciated both the futility and inappropriateness of his efforts to protect the framers' design, now amended out of the Constitution. Kennedy rightly sensed that "the absence of structural mechanisms" renders it difficult to maintain the federal balance, but he showed absolutely no awareness that the framers originally provided for such a mechanism--namely, the election of the Senate by state legislatures--or that, by their ratification of the Seventeenth Amendment, the people removed it. Rather, he simply concluded that the Court should be free "to intervene when one or the other level of Government has tipped the scales too far."

The Senate was originally the "corporate defense mechanism" of the states against the centralized government. It is the 17th Amendment which has allowed the federal government to grow into the Leviathan. Repealing the 17th Amendment is the only way to yoke the beast and take the whip from its hand.

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