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False unity between States in bondage

December 19, 2010
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Connor Boyack writes for the Tenth Amendment Center:

While many people assume that the thirteen colonies which declared independence from Great Britain did so jointly as part of a newly-formed (or -forming) nation, this is incorrect. This belief is not only erroneous, but also dangerous.

If one assumes that a conglomeration of the colonies secured independence and international recognition as a single unit, then this warped view of history would lend support for seeing our country today as similar in nature: a singular entity, “The United States.”

History tells a different story. For example, an 1840 history book written by Abel P. Upshur notes the following:

The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. The colonies had no common legislature, no common treasury, no common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence; they had no right to vote in its elections, no influence nor control in its municipal government, no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever.

Prior to the creation and ratification of the U.S. Constitution, the states were separate countries—sovereign political bodies with no superior authority. This is evidenced, among myriad other sources, in the Declaration of Independence, where we read of the King’s “establishment of an absolute Tyranny over these States” as well as the colonies being affirmed as “Free and Independent States”. The Treaty of Paris that ended (most of) the conflict between the Crown and the states recognized each state individually, by name, as opposed to “The United States”. Indeed, the Declaration references “the united States of America” with a lowercase ‘u’, indicating that the several states were united in objective but separate in status.

After successfully seceding from Great Britain, the several states voluntarily entered into a political association under the Articles of Confederation. Fiercely jealous of their newly-secured sovereign powers, the states insisted and agreed upon veto power over any action made by the confederate government that exceeded its express authority.

One of the provisions in the Articles stated, for example, that “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.” While the Articles certainly had their flaws, they nevertheless recognized and operated upon the understanding that each of the states were voluntary participants in the “Perpetual Union” created by the document.

When several of the states later decided to secede from this “Perpetual Union” created by the Articles in order to accede to the new government (a “more perfect Union”) under the U.S. Constitution, they did so independently through ratifying conventions, and over a span of several years. Their accession to and affiliation with this new government was still voluntary, and their sovereignty still recognized, with federal supremacy pertaining only to the specific, limited, enumerated powers which had been delegated to the new government.

In order to further emphasize the fact that the Constitution empowered the federal government only with the powers contained in the document, the ninth and tenth amendments were passed. These specifically state that the powers and rights nowhere delegated to the federal government in the Constitution, nor enumerated therein, are reserved to the states and people. In other words, in all matters not relating directly to those delegated by the states to the federal government, the states retain their sovereignty and the people their rights.

While on paper this arrangement appears rock solid, an abundance of examples exist demonstrating either the inability or the unwillingness of the federal government to restrain itself accordingly. Despite those oft-referenced “checks and balances,” the states have, over two centuries, seen a steady and severe erosion of their sovereign powers. Thomas Jefferson warned of this trend long ago:

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.

So much power has been arrogated to the federal government that its title is now commonly written with a capital “U”, as in “The United States of America,” singular.

But despite its capitalization and therefore increased prominence in the title of the country, a quick peek underneath the surface reveals a political climate in which unity is difficult to actually find. The easiest way to observe disunity, of course, is to analyze a circumstance in which one state objects with another. It should be noted, however, that unity can be said to exist in regards to all powers delegated to the federal government within the Constitution; having previously agreed to subject themselves to the federal government on certain issues, one might say that they are then united in accordance with whatever decisions are made in regards to those issues.

On all other issues, though, no such agreement has been made, let alone unity established. When the federal government passes an unconstitutional law, a variety of responses can be found amongst the several states. Some might object primarily on principle, opposing the abuse of authority that was not delegated. Other states, whose citizens like the law, may not show any concern for its unconstitutionality. Others may justify an unconstitutional law with all sorts of intellectual gymnastics, preferring the new law to the contrary. And other states may object because the unconstitutional law’s effects are keenly felt amongst its populace.

The latter example can be found in the case of Massachusetts, one of the New England states that was hit hardest by an 1807 embargo, with its supplementary laws enacted in succeeding months, imposed by the federal government which prohibited American ships from departing to any foreign port, anywhere in the world. A federal district court ruling the following year, United States v. The William, ruled the embargo constitutional, but Massachusetts disagreed. Their legislature, in both houses, declared it to be “in many particulars, unjust, oppressive, and unconstitutional.” In an effort to help its citizens “find protection against outrage and injustice in the strong arm of the State government,” the legislature affirmed that the embargo was “not legally binding on the citizens of this State.”

While the effects of this embargo could be felt around the country, some states with strong manufacturing bases benefitted, as a termination of the influx of foreign goods sent Americans looking domestically of necessity. They, along with others whose hostility to the British was enough to rally support for such an embargo, praised the law. Others, like Massachusetts, openly defied the federal government, and in other cases, their citizens engaged in smuggling or civil disobedience to make the embargo an utter failure.

“Why should not Massachusetts take the same stand, when she thinks herself about to be destroyed?” asked a New York congressman at the time. Another legislator from Connecticut rhetorically asked: “If any State Legislature had believed the Act to be unconstitutional, would it not have been their duty not to comply? … I consider that the state legislatures, whose members are sworn to support the Constitution, may refuse assistance, aid, or cooperation as to an Act of Congress which they sincerely believe to be unconstitutional.”

Due to the widespread resistance amongst several states, the embargo failed and was later repealed. Rhode Island’s objections summarize the opposition of many of the states which felt a duty “to interpose for the purpose of protecting [the people of their respective state] from the ruinous inflictions of usurped and unconstitutional power.”

State-led opposition to unconstitutional federal mandates, however, do not always enjoy such broad support. A decade earlier, when Jefferson and Madison penned the Virginia and Kentucky Resolutions, the other states found no problem with the Alien and Sedition Acts to which the aforementioned states objected. In such cases, what is a state to do?

The post-”Civil War” style of “Union” suggests that the federal government is supreme, and states are duty-bound to comply with the mandates it produces. But a staggering list of examples demonstrate that, for a state concerned with retaining its sovereignty, there are numerous other opportunities for resistance and recourse that have been and can be employed. Court challenges are a common method, but have a large achilles heel; relying upon one branch of the federal government to overturn the actions of another branch is something which might sound okay on paper, but has too infrequently succeeded. Jefferson knew the danger in deferring all such decisions to the courts:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Other, more fruitful and proper avenues exist for opposition, such as interposition and nullification. Interposition could best be summarized by Connecticut governor Jonathan Trumbull, who convened a special session of his state’s legislature in 1809 to deal with the embargo mentioned previously. He said:

Despairing of substantial relief from any other quarter, the people are now looking with anxious solicitude and hope, to the wisdom and direction of the Legislature of their own choice [their state legislature] ; and seem confident that some mode may be devised to remove the pressure under which they are at present suffering. To your collected wisdom and prudence they submit the task. And may it not be hoped, that, with our united efforts under a temperate, discreet and firm consideration of our situation and circumstances, we may be able by the influence of divine aid, to fulfil the just and reasonable expectations of our fellow citizens? Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task—it is their right—it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.

Interposition is an official action taken by a state government to publicly question the constitutionality of a federal law. The state government affirms its sovereignty and states its intent to protect its citizens from unnecessary or unlawful mandates. The Virginia and Kentucky Resolutions fall into this category, being vocal, official protests to an unconstitutional policy. In addition to simply stating an objection, interposing actions often declare that if no resolution is to be found within a certain time frame, the law will be nullified.

Nullification can be viewed as the next step in and escalation of opposition towards an unconstitutional federal law. Thomas Jefferson regarded it as “the rightful remedy” to an encroaching federal government. It is, in effect, a state simply refusing to obey with a federal mandate it views as clearly unconstitutional.

While nullification is not to be treated lightly nor employed for casual motives only, consider the circumstances. A sovereign state is part of a federal government, surrendering a few of its powers to that government. When that government decides to exceed its authority and force the state to comply, what should the state do? Bending over in submission has not worked well over the past two centuries. Relying upon federal courts—a branch of the very government exceeding its authority—has, in too many cases, proven a futile endeavor; lawyers in black robes have historically shown little concern for the sovereignty of the several states.

If the word “union” means anything, it means the joining of separate, distinct bodies into one. The states have explicitly authorized such unity in all matters relating to the powers delegated to the federal government. On any other issue, no such unity as been promised, nor does it exist. Just as unity would not exist between my wife and I if I were to force her to comply with an unreasonable or abusive request, so too are states not united with each other when unconstitutional mandates are produced and enforced by their creation, the federal government.

If our “more perfect Union” is to shed some of its saturating hypocrisy, states must affirm the voluntary aspect of their affiliation with the federal government; being forced to comply with mandates it neither agreed to nor desires is plenty of reason for a state to become defensive against federal aggression.

Indeed, states are, in our current political system, in bondage. They are in bondage to a federal government which, like an abusive husband, demands many unreasonable things, and brutally enforces its mandates. (To be sure, some of this bondage has been invited by the states who have succumbed to the temptation of “federal funding”.)

In addition to bondage to “The United States of America,” states may soon be in bondage to one another. Last week, Representative Rob Bishop (R-UT), Co-Chair of the Tenth Amendment Task Force, introduced an idea for a constitutional amendment he will be sponsoring in Congress. The purpose of the amendment is, in his words, to “provide citizens, through their elected state representatives, with a powerful tool to check an overzealous and power-hungry federal government.”

You’d think he was describing nullification. Instead, however, his “Repeal Amendment” simply states:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Note that, of course, this amendment refers to all laws passed by the federal government—not just those which exceed constitutional authority. Thus, even though the states have empowered the federal government with taxing authority, a few dozen states could overturn any given tax through a coordinated set of resolutions.

While this might be interpreted by some supporters of state sovereignty as a good thing, I believe otherwise. This amendment would, in effect, further erode a state’s sovereignty by requiring that any opposition to an unconstitutional edict be likewise supported by two-thirds of the other states in the “Union”. In other words, states wanting to declare opposition to an unconstitutional federal law would only be able to effectively do so when such opposition is agreed upon by a majority of Americans. (If this amendment dealt only with constitutionally-authorized laws, that would be a different thing, and one which I might consider supporting.)

But what of Virginia and Kentucky, whose opposition to the clearly unconstitutional and detestable Alien and Sedition Acts found no such support? This amendment creates a structure of bondage not between a state and the federal government, but between a state and its peers. Under such a law, a state’s sovereignty would further be subjected to majoritarian law and popular opinion. Nullification would surely be seen, with this amendment’s passage, as a less viable and desirable option, for opponents would no doubt argue that if a federal truly was unconstitutional, most of the states would agree with that opinion.

What happens, though, when a federal law is both unconstitutional and narrow in focus? What if its effects are only negatively felt in one or a few states, with the rest showing either ignorance or apathy in mustering up enough opposition to come to the aid of those other states? Should the sovereignty of any state be subjected to popular vote?

A quote attributed to Benjamin Franklin states that “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” Defensively contesting an unlawful action of aggression is what nullification is and does. Rep. Bishop’s proposed amendment, on the other hand, is a system described by the former sentence—a state’s sovereignty would be contingent upon the democratic decisions of a majority of other states. This is bondage.

States, like that lamb, should be free to determine their own fates. They should be able to voluntarily participate in a “Union” of their choosing, as they have, and upon the terms they agree to. Those terms are outlined in the U.S. Constitution, where the states have surrendered supreme authority in regards to a few powers only; all others authoritatively remain to the states and the people. They should be (and are) able to refuse to comply with any act that clearly falls outside of that delegated authority. Interposition and nullification are the foundational political tools used to achieve that end.

In 1854, Justice Smith of the Wisconsin Supreme Court noted the importance of these tools of resistance when he wrote:

But the real danger to the union consists, not so much in resistance to laws constitutionally enacted, as in acquiescence in measures which violate the constitution. It is much safer to resist unauthorized and unconstitutional power, at its very commencement, when it can be done by constitutional means, than to wait until the evil is so deeply and firmly rooted that the only remedy is revolution.

States must free themselves of the shackles of bondage—both to the federal government and to each other. Danger to our true union stems not from resistance to certain laws deemed unconstitutional, but to the long-standing deference to federal authority in all matters, and the systemic unwillingness of Americans to stand up to such federal aggression.

Connor Boyack [send him mail] is the state chapter coordinator for the Utah Tenth Amendment Center. He is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.

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