Wednesday, March 03, 2010

Federalism, Not "States' Rights"

I've alluded to this before, and in light of the association of "states' rights" with unpopular ideas, I definitely think it's a good idea to use the more accurate term "Federalism". Gary Wood has a great post on why "Federalism" is a better fit:

We must understand states’ don’t have rights but an obligation to use their governing power to defend their citizens’ rights whenever federal power oversteps its enumerated obligations. We are not secessionist, nor are we abolitionists but rather restorationists devoted to our original meaning and the foundational strength of the 9th and 10th Amendments combined with an acceptance of personal responsibility.

We honor the federal laws as supreme laws of the land when they are pursuant to, and in keeping with, the U.S. Constitution while we oppose all efforts for federal laws and mandates beyond their granted powers no matter what moral clothing they are dressed in. Unconstitutional law, even if clothed in good intention, is still bad law and the states are obligated to check it, and declare it as such. If an unconstitutional law is so universally good as to benefit the general welfare of all citizens in all states let the processes of Article V be invoked. Until such time we stand by the duty of states’ powers to protect us for many unconstitutional laws and mandates that began with good intentions have crippled our economy and usurped authority far beyond original meaning.

Let every member of every organization supporting state sovereignty and federalism cleanse the language so our opponents cannot easily attack the wrong target. Should they target federalism and the original meaning we can defeat them with truth. Freedom is not outdated, federal government is an agreement among the people of different sovereign states, the 10th Amendment has never been repealed, and virtue is still necessary for securing our posterity’s future rights to life, liberty, and the pursuit of happiness.

The common usage of the term "rights" is engaged when people discuss an abuse of power. If someone had the power to do some wrong to me, and they did so, we say that they violated my "rights". Likewise, when the federal government has the power to do something it doesn't have the authority to do, we say that the federal government violated someone's "rights". But these terms are so misunderstood now that too many people find it acceptable for the federal government to overstep its authority as long as it is accomplishing something they consider good. The problem is that a limited federal government is good, and allowing it to become unlimited in order to feed the poor, or provide health care to children, or criminalize/decriminalize abortion still allows it to violate its authority, of which it has none in those areas.

The original Constitutional Senate was the protector of federalism because it provided a constant pressure to keep federal power limited. That's why those who favored unlimited, centralized power needed to have it removed. And that's why the only way to return to a Constitutionally-limited government is to repeal it.

1 comment:

Brian said...


I my spare time I started to research Orestes Brownson and Territorial Democracy and particularly his explanation penned in the "American Republic."

Kirk, Russello, and Elazar have written modern analysis.


In The American Republic, Brownson sought to explain American government in light of the Civil War. Out of that great conflict a new nation had arisen; what was its relation to the old? Some had argued that each of the states had independent existences that could survive the dissolution of the Union. Others believed the nation was, or should become, a unitary state, centralized in Washington. To Brownson, both sides were wrong. The states were neither pre-existing nations that had "contracted" with one another, nor were they mere provinces of a general government. The former, for Brownson, contradicted principles of sovereignty; the latter equated the federal system with the centralized democracy of Jacobin France.

Rather, the states are sovereign in their own spheres, but that sovereignty exists only because they are part of a nation. Brownson calls this understanding of the American system "territorial democracy": "not territorial because the majority of the people are agriculturists or landholders, but because all political rights, powers, or franchises are territorial." Power, in other words, is not portable -- as it was, for example, in pre-modern nomadic peoples or in medieval Europe, where the "state" was wherever the royal court happened to be.

Rather, sovereignty in the modern state exists only within the physical area of a particular society. The sovereignty of New York, for example, exists only because it is part of the geographical entity known as the United States. As Brownson puts it, "The American States are all sovereign States united, but, disunited, are not States at all." Brownson's territorial democracy is consistent with American federalism, and in fact has greater explanatory power than either the nationalist or secessionist versions. The Founders knew that government should be as close to the people as possible, so it could be more accountable. The national and state governments each derived legitimacy from the people, and each had a legitimate claim to govern within its own sphere.

Brownson joined territorial democracy with another interpretive tool, the "unwritten constitution." The unwritten constitution included the mores, customs, and ways of life that together formed the American political culture and supported the written Constitution. Brownson had supported democracy, sometimes in a radical form, throughout his life. Indeed, despite recasting his political beliefs in the light of Catholic social teaching, he remained a believer in democratic government, which he argued reflected power granted to the people from God.

Russello agian,

Russell Kirk and Territorial Democracy
Gerald J. Russello
Seton Hall University

Russell Kirk is one of the most important American conservative thinkers. This article traces the development of Kirk's understanding of federalism, which was neither nationalistic nor based in the usual arguments about states' rights. Specifically, Kirk adapted what the American thinker Orestes Brownson called "territorial democracy" to articulate a version of federalism that is based on premises that differ in part from those of the Founders and other conservatives. Further, Kirk believed that territorial democracy could reconcile the tension between treating the states as mere "provinces" of the central government and seeing them as autonomous political units independent of Washington. Finally, territorial democracy allowed Kirk to set out a theory of rights that was based in the particular historical circumstances of the United States while rejecting a universal conception of individual rights.