"Reserved to the States..."

A quick read-through of the Bill of Rights will leave you with a sense of how narrow the powers were that our Founders gave the Federal government. The First Amendment begins with the words “Congress shall make no law...” and the rest of the document continues in that vein. Congress' rights are limited so that the peoples' rights can be preserved. It's not that Madison and the other Framers didn't have a wealth of good ideas to pour into the new republic. They could have written dozens of pages into the Consitution to denote what every aspect of life should be like. Instead, they wrote 6 pages. This is because the power to determine all issues except for the ones addressed in the Constitution was left to the states, or to the people. Whether a state's citizens pass harmful laws or not, the federal government is duty bound to respect their decisions. Just like a family should never have to be told how to raise their children whether they do it poorly or well, so the states -closest to the people they serve- should be allowed to exercise their own discretion.

That's why it's disturbing to see Christians increasingly looking to Washington D.C. to define moral issues. Amendment X clearly leaves these “to the States respectively, or to the people”. Yet, some pro-lifers suggest that a Constitutional amendment would solve our problems. The proposal is to enlarge Amendments V or XIV to define when life begins. Though well intended, the addition of these words would fundamentally transform our Constitution. For the first time in its long history, it would be offering a moral definition. Once this weapon was added to the arsenal of government, everything sacred could be laid bare before the power of the state. Neither church nor individuals would have the shelter the Constitution was meant to provide in matters of faith. One day this power would be misused. What if an amendment were passed that defined marriage as between “two individuals”, for example? Unable to resist a Constitutional mandate, voters in the states could no longer decide for themselves. Before we rush into a legislative solution, let's remember that it was the Supreme Court's Roe vs. Wade that declared that the unborn were not human beings. Shouldn't it be the judicial branch, then, where it's resolved? If that ruling were reversed, States could expand their fetal homicide laws to prohibit abortion. This is the Constitutional way to end abortion and protect human life.

J.R.R. Tolkien had profound insight into what happens to us when we use forbidden power to advance our cause. When Frodo naievely offers Gandalf the One Ring, the wizard replies “I would use this ring from a desire to do good, but through me it would wield a power too great and terrible to imagine.” Before we resort to a Constitutional amendment to protect the unborn, let's keep that in mind.

The Dream of the Rood

Apart from reading the wonderfully harmonious Gospel accounts of the crucifixion, one of my favorite Easter traditions is reading the Anglo-Saxon poem, "The Dream of the Rood." ("rood" means "crucifix" in Old English) Not only are these verses the first, full Christian poem in the English language, they comprise what may be one of our earliest of all English poems. Historians theorize that the poem may have been penned by Caedmon, whom the Venerable Bede tells us was a plain, uninspired herdsman until taught in the course of a dream to write hymns to God. The poem's enduring quality apparently caught on among the churchmen of Northumbria. Parts of it were inscribed on an equally masterful work of art, the Ruthwell Cross. Side-by-side with such engravings as Mary Magdalene washing Christ's feet with her hair, the healing of the man born blind, and the flight from Egypt, the poem -through the eyes of the cross upon which Jesus died- captures the paradoxical nature of Christ at once submitting to, and yet conquering, death.

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1 Lo! I will tell of the best of dreams,
   what I dreamed in the middle of the night,
   after the speech-bearers were in bed.
   It seemed to me that I saw a very wondrous tree
5 lifted into the air, enveloped by light,
   the brightest of trees. That beacon was all
   covered with gold. Gems stood
   beautiful at the surface of the earth, there were five also
   up on the central joint of the cross. All those fair through eternal decree gazed
10 [on] the angel of the Lord. [It] was certainly not a wicked person’s gallows there,
   but holy spirits, men over the earth,
   and all this famous creation gazed on him.
  Wondrous was that tree of victory, and I stained with sins
  wounded sorely with defects, I saw the tree of glory,
15 honoured with garments, shining joyously,
  adorned with gold....

(Read the remainder of the poem here)

The Decline of Federalism, Part II

(If you missed the first part of this series, check it out here)

Over the next thirty years, the United States became embroiled in the slavery debate. The balance of free and slave states tenuously ebbed and flowed until the Supreme Court’s infamous Dred Scott decision. In Chief Justice Taney’s final verdict, slaves were branded as “property,” and Southerners’ defense of slavery as a matter of states’ rights was upheld. This pairing of two different issues in one unfortunate decision made state sovereignty, that vital half of federalism, appear specious, if not downright evil. Several years later, when the South resorted to the hotly debated right of secession, Abraham Lincoln built on Jackson’s precedent and called forth Federal troops to reduce the South to submission.

Even the most just wars end in diminished liberty, and the Civil War was no exception. The victorious Union overreacted to the problem the states had posed in their appeal to a supposed “right” to own slaves by stripping them of their rights altogether. The Fourteenth Amendment expanded the Bill of Rights to restrict states and placed liberties that had been sacrosanct to those states and their citizens perilously under Washington’s control. A wave of nationalism obliterated what loyalty remained to the state governments. Secession was branded with eternal infamy. “What was once a legitimate argument and rallying cry [came] to symbolize…the terrible injustice of a slave-based society.”

As Calhoun had observed thirty years earlier, “…it is not possible to distinguish, practically, between a government having all power, and one having the power to take what powers it pleases.” With the states robbed of any effectual means of checking Federal power, federalism was dealt a mortal wound. As if on cue, Washington’s powers began to explode. Woodrow Wilson’s administration first passed the 16th Amendment. This legalized the income tax and ensured that the Federal government had a vast financial advantage over the states. “By employing its ability to make grants to the states to…implement national programs, Congress has…[transformed] the states…into administrative arms of the national government.” The 17th Amendment followed, making senators directly elected and divorcing them from their position as the states’ agents. The states were now without a voice in the government they had created.

Most foreboding of all was the Supreme Court’s new interpretation of the Constitution as a living document. This had its genesis in the relativistic view that, in Wilson’s words, “[Government] falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin.”

A Supreme Court armed with the ability to redefine the Constitution undermines the very idea of a written constitution and imperils our rights. It has proved especially deleterious to what traces of federalism remain to slow things down. In the 1930s, the Court coupled this judicial activism with support for the New Deal’s engorgement of Federal power. In 1941’s U.S. v. Darby Lumber, the Court held that the Tenth Amendment’s reservation of power to the states and people was only a truism; in Wickard v. Fillburn, the wheat a farmer grew for his own chickens was declared to be under the jurisdiction of the Constitution’s Commerce Clause.

In retrospect, Jefferson’s and Madison’s warnings were remarkably farsighted. Without true, state-centered federalism, the Supreme Court has indeed become a mere rubber stamp for Washington’s agenda. The Court’s endorsement of the New Deal led to its endorsement of the welfare agenda of Lyndon Johnson’s “Great Society” and the surge of Federal power it required. Moreover, the Court’s expansive view of the Bill of Rights as a limit not just on Congress, but on the states, has led it to conjure de facto “rights.” 1965’s Griswold v. Connecticut saw justices discover an individual “right” to contraception that overrode Connecticut law. Americans were granted the “right” to murder an unborn child eight years later in Roe v. Wade, even though most states had outlawed abortion. One wonders what other “rights” might be contrived by our government next - the “right” to gay marriage?

In 2001, George W. Bush’s “No Child Left Behind” initiative seized more control of education from the states and gave it to a Washington bureaucracy. Federal education spending has tripled, but grades have continued to decline. During the BP oil spill, FEMA regulations prevented states’ timely response to the disaster. Arizona’s controversial immigration law was a desperate answer to Washington’s inability to enforce the powers it has assumed. After more than a century of living outside federalism’s constraints, our government is finally facing its overextension. Our fiscal crisis is fundamentally caused by the consolidation of a massive array of powers that were designed to be dispersed to the states and people in true federalist fashion.

The answer to the fiscal crisis, abortion, gay marriage, government corruption, an out of touch administration, and citizens’ apathy, is to revive federalism and restore to the states the decision-making power they were intended to wield. “Federalism was all about keeping government within reach of the individual. It was…about keeping government in its place…and maintenance of…democratic sentiment. As federalism has diminished as a constitutional…and political principle, much of what makes this nation what it has been is put at risk…. Our ability to restore the primacy of federalism in America may well shape what this nation is to become.”

Straightening Crooked Judgments

By the early 6th century B.C., the people of Athens were embarking on a course free of monarchy. Without a king, a maelstrom of ambition ensued. Plutarch tells us of a struggle between the people of the hills who clamored for democracy, and those of the urban valleys who sought the protection of an oligarchy. The universally admired aristocrat Solon, full of poetic sparkle, seized this deadlock to make promises of "straightening crooked judgments" and equal justice for all. Shouts of acclamation from rich and poor alike made him dictator for a year. Solon quickly took control over the city's olive oil producers and banned the selling of cereal crops abroad so that they could instead feed Athenians. It didn't matter to Solon whether or not this meant bankrupting the cereal farmers. Solon's most radical reform was the abolition of the commoners' debts. Not only usurers, but all creditors, saw their money forcibly disappear as it was redistributed to the poor. Abuse was rife. The annals tell us of several of Solon's friends who anticipated this policy by taking out loans to buy swathes of land in the very hours before debts were to be eradicated.

Several centuries later we can see Rome's reformers treading the same proverbial road to hell paved with good intentions. As the Republican armies haphazardly acquired lands abroad, and as the Equestrians and Populares sought more influence in government, the Senate became divided. A starry-eyed reformer named Tiberius Gracchus arose from among the governing class. Tiberius had traveled throughout the colonies and had come to identify the financial plight of farmers as Rome's greatest problem. Encouraged by two Greek scholars, Tiberius presented a proposal to seize the lands of Rome's noble families and spread them to the lower classes. The tribune Octavius became the voice of the aristocrats' furor at this blatantly unjust scheme. But democracy, then as now, knew no law. Tiberius simply held an unconstitutional election where the Roman mobs deposed Octavius. After even this, the measure was not to pass. Tiberius was killed by rioting senators; his brother Gaius followed him when he attempted to carry out the very same plan. Robbing the rich to give to the poor was something that Romans were not yet anesthetized to.

So much for the celebrated ancient reformers. To find an example of reform that was fair to all, regardless of the money they had or didn't have, it's necessary to look beyond the West. We now turn to the story of the exiles' return to Israel. Although the Israelites astonished their neighbors by reconstructing Jerusalem's walls, problems still abounded. The fields that had lain un-tilled for so long could not immediately bear a harvest. This plunged farmers into debt as they enslaved their children in order to get grain. The governor, Nehemiah, recognized the property of all men as sacrosanct. Instead of using his power to force the redistribution of weath, he relied on the Israelites' fear of the Lord to prompt their voluntarism. Nehemiah exhorted the noblemen to restore the fields, vineyards, sons and daughters that had been taken from the poor, lest they all become an object of scorn amongst their neighbors. As one, the nobility disavowed usury and restored what they had taken. Unlike Solon's bankrupting of Athens' creditors, or Tiberius Gracchus' socialistic seizure of private property, this manner of reform didn't entail taking at sword point from those who had in order to give to those who had not. It required a people who feared the Lord, and an understanding that only by encouraging man's free will, his voluntary effort, can good ever be done. Socialism knows no higher law than the here and now, and so it compels what is right. The fact that it creates poverty by grinding down the rich reminds one of Proverbs 12:10: "Even the kindest acts of the wicked are cruel."

The Decline of Federalism, Part I

(Read part II here)

When conservatives look to Washington to enact every part of their agenda, they are unwittingly kicking the supports -all fifty of them- out from under conservatism itself. How far we have come from our Founders’ vision of a republic where “The powers delegated…to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." If the states are closest to the people, it is only in their legislatures that most issues can be properly and effectively settled. "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power,” Jefferson warned, “it will render powerless the checks provided of one government on another, and will become as…oppressive as the government from which we separated." The most pressing public policy issue of our day is the decline of “federalism,” that is, the dispersal of power between states and the nation. Indeed, our “Federal” government’s increasing lack of federalism is at the heart of every other struggle our nation faces today.

To the Founders, the states were indispensable bastions of freedom. The people identified themselves as Virginians or New Yorkers, not Americans. They were represented in their state capitals by men whom they knew, and who knew their concerns, often personally. The states also maintained a healthy competition with each other in their rich diversity of tradition and law. “For these reasons, the states seemed the more appropriate locus for government authority. Only by maintaining the sovereignty of the states could republican government flourish.” To that end, but also to impel cooperation among the states, the Constitution created a Federal government that could act decisively in its own sphere of power, but one that would “owe its existence more or less to the favor of the State governments….” This dependency was another piece in the elaborate machinery of checks and balances that the Founders planted in our nation at its inception, ensuring that Washington’s reach would remain limited.

Almost immediately after the ratification of the Constitution, this novel idea of a “federal” government of “dual sovereignties” -a national government with a few defined powers, the others being retained by the states or people- aroused fierce controversy. James Madison had made it quite clear in Federalist #39 that “The proposed Constitution…is…neither a national nor a [confederal] Constitution, but a composition of both….” but finding this middle ground of “federalism” proved difficult for the young nation. As early as 1798, when the dubiously constitutional Alien and Sedition Acts were passed, parties emerged that erroneously claimed that the government was one or the other. The disagreement revolved around whether an act of Congress that was unconstitutional was binding on the states. The implications were profound.

In response to the Alien and Sedition Acts, men like Jefferson and Madison argued that, had the United States been founded as a national government whose decisions were binding on the states even if unconstitutional, then “…that would have made its discretion, and not the Constitution, the measure of its powers….” In effect, Congress could acquire new powers without fear if it was accountable only to its own Supreme Court, and not the states. To that end, it was argued, each state reserved “an equal right to judge for itself, as well of infractions as of the…measure of redress” –i.e. the right to “nullify,” or refuse to enforce, an unconstitutional Federal act.

Although Daniel Webster had used this theory of nullification to oppose the draft, and the Hartford Convention had drawn from it to encourage New England’s secession, no one put it into practice until 1828. A Federal tariff passed that year was refused enforcement by South Carolina on grounds of unconstitutionality. Taking up Jefferson’s mantle, Vice President John C. Calhoun defended this act of nullification, contending that “The Government is one of specific powers, and it can only exercise those powers expressly granted…all others being reserved to the States….” Nullification was seemingly discredited when President Jackson threatened to send troops into South Carolina, and the state backed down. The more vital issue of state sovereignty became guilty by association. It now appeared to be simple Southern feather-ruffling. This did not bode well for federalism, hinging as it did on the concept of states’ independence in their own sphere. If the Federal government could intrude into that sphere to force acceptance of its will, did the states retain any freedom in reality? 


TO BE CONTINUED