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Art. 1, Sec. 8. of the US Constitution: Congress “shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

Does this clause mean that the US Government can legislate in any way that benefits the Union? According to Thomas Woods, the general welfare clause “was a restriction on the power of the federal government: it had to exercise the powers delegated to it with an eye to the welfare of the country as a whole, not to the particular advantage of one state or section.”[i] That is to say, the Congress could provide for the general welfare of the United States only within its delimited powers listed in the US Constitution.

According to Thomas Jefferson, to interpret “general welfare” as granting the federal government an independent power to “do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.”[ii] In other words, why did the constitutional convention delegates bother to list the powers if the Congress could do anything it wanted? James Madison in the 1830s: “(I)t exceeds the possibility of belief” that those who believed in limited government “should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.”[iii] In Federalist #41:, Madison writes, “For what purpose could the enumeration of patriculars be inserted, if these and all others were meant to be included in the preceding general power?” He also observed that “(i)f Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, … everything … would be thrown under the power of Congress.”[iv] Therefore, in 1800, he concluded that “(i)n its fair and consistent meaning, [the general welfare clause] cannot enlarge the enumerated powers vested in Congress.”[v] We could generalize to say that any reference–directly or by implication–in the US Constitution to the powers of the Congress must be taken to refer to its enumerated powers or the document must be rendered as nonsensical. The problem thus arises when an enumerated power is stretched beyond its meaning even in a contemporary context. That is to say, we need not be limited to original intent (i.e., of the convention delegates) to find that the US Constitution limits the power of Congress.


Click to add a question or comment (and to view them) on the interaction of the general welfare clause and the enumerated powers on federalism in American constitutional law.

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[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 25.

[ii] Thomas Jefferson, “Opinion Against the Constitutionality of a National Bank,” in The American Republic: Primary Sources, ed. Bruce Frohmen (Indianapolis: Liberty Fund, 2002), 501.

[iii] Raoul Berger, Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987), 105.

[iv] Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Alfred A. Knopf, 1950), 129.

[v] James Madison, Virginia Report of 1800, exerpted in Document 5.

As to whether the supreme courts of particular American states, or republics, should be able to declare the general (U.S.) government’s health-insurance mandate unconstitutional in the sense of being an encroachment of the government of the union beyond its enumerated powers, it is typically presumed that the U.S. Supreme Court is the rightful and proper umpire--the court of last resort on disputes on federalism applied to particular legislation. Forgotten is the argument made by Thomas Jefferson against that court’s suitability owing to its institutional conflict of interest in contests between the U.S. Government, of which the U.S. Supreme Court is a branch, and a goverment of one of the several states.  Typically, we do not consider how the conflict of interest can be solved. We do not “think outside the box.” Rather, we feel resigned to have branch of one of the parties of the dispute act as the final decider short of a constitutional amendment.

We do not consider, for example, that perhaps a council of the States’ Supreme Court Chief Justices (or their attorney generals) might be a less problematic alternative. We need not throw up our hands and leave it to any state to nullify any federal law it doesn’t like. We can design an umpire of federalism in such a way that the the encroaching tendency of the center is counterbalanced by the interests of the states in deciding the question. That is to say, we ought to design the umpire mechanism in such a way that tilts in the direction of the states, given the tilt of power in the other direction historically and today. It is well worth reviewing Jefferson’s argument so this doesn’t sound so radical. Given our aversion to real change, the need for a constitutional amendment must be backed up by a mainstream figure.

Essentially, Jefferson maintained that there is a conflict of interest in one branch of the US Government–the US Supreme Court–being the ultimate umpire in federalism disputes between a State and the US Government. It is like having a member of one of the two baseball teams playing being the umpire. In college, I was a referee for intermural football. I was stunned when the coordinator of the refs, himself a student, assigned himself to referee the game involving his own fraternity. When I suggested that there is a conflict of interest in his self-assignment, he dismissed my concern out of hand. Sadly, this sort of attitude characterizes Americans in general with respect to institutional conflicts of interest in our government (and between business and government). I contend that we are blind to such ethical problems, and the viability of our federal system of public governance, which includes semi-sovereign States, is paying the price in the form of a massive imbalance.

One might counter that the separation of powers in the US Government make the US Supreme Court independent of the Congress and President. According to Thomas Woods, the separation of powers in the federal government cannot be relied on to distinguish the US Supreme Court’s interest from its basis as a branch of the US Government because the “three federal branches can simply unite against the independence of the states and the reserved rights of the people.”[i] In 1825, Thomas Jefferson wrote, “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”[ii] Jefferson believed that in a dispute between the states and the federal government, the resolution should not come from a branch of the federal government. With the US Supreme Court as the umpire on federalism questions, the states “would inexorably be eclipsed by the federal government.”[iii] Woods observes, “(S)ince the federal courts are themselves a branch of the federal government, how can the people be expected to consider them impartial arbiters? The [US] Supreme Court itself, after all, although usually pointed to as the monopolistic and infallible judge of the constitutionality of the federal government’s actions, is itself a branch of the federal government.”[iv] For one thing, US Supreme Court justices are selected by the US President and confirmed by US Senators. In this process, even an unconscious “similarity of perspective” is likely to be sought or welcomed even with respect to one’s vantage-point (i.e., perspective). Spencer Roane, a Virginia judge whom Jefferson would have nominated to the US Supreme Court, wrote, “the States never could have committed an act of such egregious folly as to agree that their empire should be altogether appointed and paid by the other party. The [US] Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members… . The [US] Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate… . They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause.”[v] As a branch of the Federal government, the US Supreme Court justices have at the very least a perspective from the “whole”–meaning the US as a whole–which is the vantage-point of the US Government. This is a background basis of similarity; the nominating President and the confirming Senators are likely to ask questions of a nominee that would show the nominee’s attitude or opinion concerning the power of the US Government (i.e., the power of the President and Senators!). The conflict of interest is clear, yet no one points to it. This is very odd indeed–tantamount to a societal blindspot.

Not unexpectedly, the US Supreme Court has consistently and overwhelmingly decided federalism cases in favor of the US Government. Even the Morrison and Lopez cases on the reach of the interstate commerce clause in the 1990s allow for indirect economic effects from such commerce to justify the jurisdiction of the US Government over those of the States. An indirect effect is just the sort of loophole that the US Government has been using to expand its power. So even the Rhenquist court was pro-US Government vis a vis the States. Joseph Desha, governor of Kentucky in 1825, wrote, “most of the encroachments made by the general government flow through the [US] Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors.”[vi] What amazes me is not so much the historical trend; rather, I’m bewildered by how such an obvious conflict of interest could be allowed to fly for so long under the radar screen of American public consciousness. This really should tell us something about ourselves, and we ought not to be flattered by what we see.


Click to add a question or comment on the ethics of the Supreme Court on federalism cases.

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[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 4.

[ii]Thomas Jefferson to William B. Giles, December 26, 1825, in The Writings of Thomas Jefferson, vol. 10, ed. Paul L. Ford (New York: G. P. Putnam’s Sons, 1899), 355.

[iii] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[iv] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[v] James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 156.

[vi] State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longman’s, Green, 1911), 113.

U.S. Sen. Rand Paul (R-KY), was the Tea Party candidate who challenged the Republican establishment to win the party’s Senate nomination in Kentucky on May 18, 2010. A day later, he publically criticized a plank of the Civil Rights Act of 1964. Specifically, he said in an interview with Rachel Maddow on MSNBC television that he supported the sections of the Civil Rights Act that applied to public accommodations but had concerns when it came to its applicability to private business. He had raised similar concerns earlier in the day about the Americans with Disabilities Act in an interview on National Public Radio. Asked by Maddow if a private business had the right to refuse to serve black people, Mr. Paul replied, “Yes.”

In citing the rights inherent in private property, Mr. Paul, an eye surgeon, was refusing to recognize the “publicness” in a business being open to the public, as distinct from someone’s house, which is not open to the public. In other words, Mr. Paul was ignoring the qualification to private property that comes into play as soon as said property is opened to the public.  Such property is quasi-public precisely because it is open to the public.  Hence, society, through its government, has a right to dictate the obligations going with that element of publicness.  Mr. Paul would have been on firmer ground had he limited his statement to private clubs, such as country clubs, which do not receive public money and are not open to the public.  However, even here, if people associate in a way that hurts others by intentionally excluding them, there might be an argument in favor of subjecting them to the Act, though such an argument seems weaker than those for freedom of association and on private property not open to the public.

Rand Paul also said on ABC TV that President Barack Obama’s criticism of BP in the wake of the Gulf oil debacle sounds “really un-American.”  Paul said that the president’s response is part of the “blame game” that’s played in the United States. The game, he argued, leads to the thinking that tragic incidents are “always someone’s fault” when sometimes accidents just happen. Sen. Paul was ignoring that BP overrode Transocean in directing its employees not to use “mud” to maintain pressure in the well as cement “corks” were being inserted.  Also, managers at BP claimed to have the technology to stop any leak or spill when no such technology existed. In short, the managers at BP put the Gulf at risk in order to cut corners so as to earn more profit (as if $2 billion a month was not sufficient).  Rather than go after the mentality of shirking amid a “more, more, more” mentality wherein nothing is ever enough, Paul went after the representative of the victim–society as a whole.  That is to say, he added insult to injury by going after the victim rather than the culprit.  In so doing, he ignored key elements of the culpability.

Listening to the candidate the Maddow show on MSNBC, I was more concerned by the way he chose to evade questions than by his failure to take “being open to the public” into account in his view on civil rights law. At one point, Rachel Maddow asked him, “yes or no,”  on whether he would exclude private businesses from the Civil Rights law.  He replied that he was against the violence that took place in the 1960s in association with Walgreen’s lunch-counters. Beyond not answering the question, Mr. Paul seemed to be continuing with what he wanted to say–ignoring the question entirely as a mere interruption to be dismissed. I noticed a few times that after Maddow did indeed interrupt him, he simply picked up with what he had been saying.  Could his ignoring the questions be related to his ignoring the “open to the public” qualification and the risky shirking of BP?  In other words, might it be that Mr. Paul simply does not see what is inconvenient to his world view?  If so, I contend that this character trait is far more alarming than even his evasions and his over-simplified view on private property and the oil spill.  If you have ever tried repeatedly to tell someone something only to have your statement ignored as the other person continues on with what he or she was saying, you know what I mean. Sadly, I suspect that Rand Paul didn't notice it. This character flaw is by no means limited to him. Nor is this an invitation for partisan aspersions on the Republican Party.

Rather, I suspect that not answering questions--even asking one's own instead of given any answer to a question outstanding--is a growing attitude in modern America. I have witnessed it myself in emailing people I don't know on matters involving an actual or potential commercial transation. Does the computer come with Office 2007? Reply: When you would like to come by to look at it?  But what about Office 2007?  Or take apartment hunting:  Are utilities included in the rent? Reply: Call me to make an appointment to see the unit. Nietzsche would have a field day with such a mentality that vaunts itself as superior by "virtue" of its own assumed dominance. The basis of Rand Paul's non-answer, in other words, could have been an attempt to dominate beyond his place on Maddow's show. In other words, his non-answers could have been refusals rooted in a will to power that was biting off more than it could chew on someone else's show.

In terms of having a will to power based on strength, many of the stations or offices in modern society that we view as being entitled to dominate are in fact weak.  Nietzsche points to the modern moralist's thou shalt not as an attempt by the weak to dominate beyond their innate weak constitution. He also points to the attempts of the modern manager to dominate in such terms (and the priest as well). In watching various personalities giving non-answers while being interviewed on television, I find myself wondering if they know they are doing it. If they do, they are indeed rascals; if they do not, their stygian pathology is much deeper than I am equipped to investigate. Perhaps the modern illness is malignant narcissism to such an extent in a personality that the delimited perspective eclipses even awareness of what oneself is doing.

Sources: http://www.nytimes.com/2010/05/21/us/politics/21paul.html?ref=politics   http://www.msnbc.msn.com/id/37273085/ns/politics-decision_2010/

In October of 2009, the U.S. House Financial Services Committee voted to give the federal government the power to block the states from regulating large national banks in some circumstances. The compromise approved by the House allows the Comptroller of the Currency to override the states, but only if that office found that the state law “significantly” interfered with federal regulatory policies.  This clears the way for a new federal agency to protect consumers from abusive or deceptive credit cards, mortgages and other loans.  Adoption of the compromise was a partial setback for the banking industry, which would have preferred to avoid having to comply with state laws that are sometimes stricter than federal rules.  Barak Obama and Barney Frank were pushing in the other direction—for subjecting banks to the relatively strict state laws with no chance of appeal to the US. Government.

This case of compromise points to the influence of large corporations on the Congress as a culprit in the on-going eclipse of federalism.  Large corporations operating in many of the American republics would rather have one regulatory infrastructure, so they push the U.S. Government to assert itself at the expense of the State governments using pre-emption.  Even where the federal government is silent in a policy domain, it can keep the State governments out. This is not to say that industry is the only force behind the march toward consolidation.  Obama and Frank were no doubt assuming that health-care and education are properly directed at the level of the U.S. Government rather than by the States.  This involves adding strings to the spending clause of the U.S. Constitution.

While it might be more convenient to have Washington as the point-person, we might miss the checks and balances permitted by a viable federal system wherein the State governments can hold back an encroaching federal government.  Moreover, we might wonder whether one legislative size fits all in a Union of republics that spans a continent.  There is a reason why the delegates in the constitutional convention designed a federal system; they weren’t just acting on a whim.

So here is my basic point: the present holders of power might have incentives to use it at the expense of the long-term viability of our system of public governance.  In other words, it might not be in the interest of our federal officials and corporation executives and boards to maintain the viability of our federal system. To the extent that their interest prevails in spite of the inherent diversity in the United States, this could be the empire’s undoing before our eyes.

Source:  Compromise Bill Could Block States on Bank Rules http://www.nytimes.com/2009/10/22/business/22comptroller.html?ref=politics

In 1928, the Senate stopped the bill that would have given WWI vets their bonus then rather than in 1946.  Mass protests for weeks by thousands of vets on the U.S. Capitol may have swayed the U.S. House, but the Senate was undaunted: passage of the bill would be economically disasterous .   Such a scenerio is exactly what the delegates in the U.S. constitutional convention in 1787 would have predicted.  They designed the House to reflect the passions of the people, and the Senate as a check on such passion where it is intemperate.   Looking back at Shays’ Rebellion in Massachusetts, the delegates feared excess democracy.  No supporter of the Senate, Madison nonetheless points out that “a numerous body of Representatives were liable to err also, from fickleness and passion. A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils” (Madison’s Notes, p. 194).

However, the delegates also designed the U.S. Senate “to represent the wealth of the Country” (Pinkney, in Madison’s Notes, p. 198).  Col. Mason claimed that “one important object in constituting the Senate was to secure the rights of property” (Madison’s Notes, p. 200).  Does being wealthy make one temporate or enlightened?   Madison observes that “wisdom & virtue” are among the objects of the proposed Senate (Madison’s Notes, p. 195).  Does being wealthy mean that one is apt to stand up for virtue?  Does wisdom come from having inherited or earned wealth?

As if these two purposes etched in the design of the U.S. Senate are not sufficiently disjoined, the delegates also intended that the Senate represent the State governments so as to proffer them a means of defending their turf against encroachment by the U.S. Government.  Senators were selected by State governments before the ratification of the 17th Amendment in 1913.  It was debated in the convention whether popular election would give the senators a sufficient incentive to protect their respective State governments.  The delegates concluded that it would be insufficient, and history has proved them right–as the governments of the States have steadily lost power to the expansive U.S. Government.

So, the U.S. Senate was designed as a check on the excess democracy possible in the U.S. House, to protect the interests of property, and to represent the State governments and protect the balance of power so crucial to the viability of federalism.   It is not clear to me that these three functions are mutually-supporting or even compatible.  I don’t see evidence in Madison’s Notes of Debates in the Federal Convention of any consideration of the assumed compatibility.

Just as any human institution is apt to subtly morph if it endures for a sufficient time, the U.S. Senate has changed through the centuries.  As a result of the 17th Amendment wherein U.S. Senators are now popularly elected (by State), the U.S. Senate is more democratic–hence more like the House.  The six year senatorial term is a buffer, to be sure. However, re-election is never too far off to be absent from a given Senator’s political and legislative calculation.   Hence we are unwittingly leaving ourselves vulnerable to our own excesses.  Are we assuming that our passionate, spur-of-the-moment, collective impulse cannot be reckless and ultimately not in our own best interest?

I have already pointed to the implications for the State governments, and we have seen their eclipse through the last century.   What about the protection of property?  How does this mix with the more-democratic “structural tendency” in the Senate?   Are Senators more oriented to the upper-class voters while soothing the rest as if we too are being represented?  In other words, is there a sort of duplicity built-in to this combination?

In my opinion, the U.S. Senate can represent the State governments while simultaneously serving as a check on the intemporate excesses possible in the U.S. House.  Property is sufficiently represented in the U.S. Government as a whole, given the small number of elected and appointed officials relative to the entire population.   I would look to the commensurate European Council in the E.U.   The Council not only represents the State governments, the chief executives of the States (or their ministers when specialized topics are decided) sit on the Council.   It is a viable check on the European Parliament, which is commensurate with the U.S. House (i.e., elected representatives by the people of the EU).   We could do better by emulating the European Council.

Accordingly, I recommend that the governors sit in the Senate (which would meet periodically…with the governors’ respective staffs doing the leg work), with the relevant members of the States’ cabinets meeting on specialized topics.   This might seem confusing, but it works in Europe.  Essentially, officials in the respective State governments would meet in a common council.  50, not 100 members.  The latter number is too numerous for a council.   Because governors are elected, democracy would not be shirked even as the Senate would be a viable check on the excesses in the House (because the governors acting in a council are “two degrees” from the voters while the U.S. Reps are only one).   To be sure, the Senate would not be meeting every day, but meeting periodically to decide the major points.

The Senate representing the State governments would distinguish the Senate from being a replica of the House.  Do we really need two Houses?   Strictly speaking, proportional representation applies where citizens are being represented.  In contrast, in an intergovernmental council each government is a member–a person, as it were–regardless of how much each weights (e.g., different populations, territorial size, or wealth).  The European Council deviates from the “intergovernmental council” model because the number of votes assigned to the governments is influenced by its population.  I don’t see why the Senate would no longer be an intergovernmental council just because the votes are proportional; the key would be that governments would be voting, so the one vote per government could be relaxed.  Because proportional represention is the rule in the U.S. House, the big States can protect themselves.  So I don’t view the one vote per government in the Senate as problematic in terms of the Congress as a whole.  In general terms, the more we can distinguish the two bodies of the Congress, the more we enrich our system of government by taking advantage of the unique contributions from different forms of polity.   If there is a downside to proportional representation,  a Senate not partaking of that method would automatically be a check (and vice versa, of course).

A constitutional moment engaging the citizenry is urgently needed with respect to the system of government in the United States. In short, the citizenry should decide, as a people, whether to revert back to a federal system or to make the political consolidation that has ensued official. If the latter, Alexander Hamilton's suggestion that the states be districts of the US Government, whose energy he thought could not directly extend to the outer reaches of the empire (i.e., into the wilderness of states distant from the seat of the U.S. Government). This was Hamilton's view in the U.S. Constitutional Convention; his writings eventually published in The Federalist Papers were meant to sell the proposed constitution rather than to give his own proposal. His own view may have come to pass, though through incremental Congressional encroachment on the turf of the governments of the several states and concurring U.S. Supreme Court assuaging (or enabling) doctrines.  I submit that this process of change over many years has eventuated in a gap between the system of governance as it is and as it is to be constitutionally.  Whereas some people argue that we must revert back to the constitution following a "strict" construction, I believe we the people, as a people, should commence a constitutional moment of heightened attention and debate concerning whether we want centralized consolidation (i.e., no states), decentralized consolidation (i.e., states as districts), or federalism (which entails dual sovereignty and a balance of power between the general government and the governments of the states).  I believe the latter is the best suited for an inherently diverse empire-scale political union, but that the people reach a decision is the imporant point now.  For otherwise, we will continue to live a lie--to claim to be a federal system while actually being consolidated: essentially flying with miscalibrated instruments. 

Actually making a decision on the type of political system is better than having the system inadvertantly change as a byproduct of whatever issue is being legislated at the moment. If the latter habit continues, I suspect that the United States will continue along the trend of consolidation at the expense of the State governments, with Congress, the U.S. President, and the U.S. Supreme Court gaining more and more power without sufficient checks on their abuse of power.  Progressives could look back on Congress and the U.S. Supreme Court allowing President George W. Bush to essentially declare war on Iraq and command the forces, while conservatives could look back on "Obamacare" applying to every state. Being concerned about the government of the Union having too much power is or ought to be an American proclivity. So too, the need for a decision on what type of political system the United States should have bears on every citizen, regardless of party.  This is what a constitutional moment is, after all; the people itself rising to discuss the system of government itself without being distracted by partisan issues of the day. To be sure, such a moment requires self-discipline among the people and responsibility in the media, so to keep on topic.

I find myself wondering why I even make the arguments.  It would take so much energy and agreement just to get to a constitutional moment wherein the citizenry as a whole become engaged in revisiting the governance system itself.  We are so easily distracted, and do we, as a citizenry, really care whether our government is federal or consolidated?   It might be that most of the citizenry is ready to say good riddence to federalism.  If so, then so be it.  Let’s at least make a decision.  If we as a people are incapable of making such a decision, it might be asked whether we are capable of democracy itself. It would be ironic if we were preaching democracy to the Middle East while not embracing popular sovereignty here at home.

In December, 2009, Abdullah II, King of the state of Jordon,dismissed the prime minister and replaced him with a palace aide and loyalist, dissolved Parliament and postponed legislative elections for a year.   For all the defects of a representative democratic system, it is far superior to autocratic rule, especially by one.   It is natural for people to resist preemption. “The nature of humans is they want democracy,” said Ali Dalain, an independent member of the Parliament that was dissolved. “One person cannot solve all problems and cannot make everyone happy, so people must share in determining their fate.”   These quotes are revealing from the standpoint of human nature and political theory.    In reading “one person cannot solve all problems,” I thought of the imperial US presidency—not only at the expense of the governments of the republics within the US, but also of the Congress.   The health-care insurance reform legislation, for example, is said to be Obama’s, even though he is in the executive rather than the legislative branch (having only a veto, which can be overridden, in the latter).   It would seem to me that the Speaker of the US House and the Majority Leader of the US Senate ought to have their own agendas—that the Congress should not simply be led by the president’s agenda.   Foreign policy is perhaps the one area where the Congress ought to defer—but only in terms of agreeing to consider what the president has negotiated abroad.  Had the UN climate talks in Copenhagen produced a treaty in December, 2009, the US President would have asked the US Senate to consider it.  Were the Senate to routinely ignore the President’s negotiations, it would be very difficult for the US to negotiate internationally.   In terms of foreign policy, however, one person does not hold a monopoly of wisdom or truth.  So in general, we could take a lesson from Jordon, even as we pride ourselves on our having a representative democracy rather than a monarchy.  I think perhaps we discount too readily the vestages of one-person rule in the US.  A unified long term vision is nice, but stepping back to see and enunciate it is different than deciding what it shall be and imposing it. 

In terms of the American presidency, there may even be a bit of hero or idol worship that has held on from ancient king-worship, as if eons of practice etched it in the human genome.  It is evinced not just when a president is sworn in, but also when he gives the State of the Union address—should I capitalize this?   Honor in the office, it is said, but the president is just a man.   The media obsesses on his every move, including what he is doing on vacation.  This obession gives us the illusion that we know the person.  Who is that behind the curtain anyway?   Do we really know, as we watch the screen? 

Source: http://www.nytimes.com/2009/12/23/world/middleeast/23amman.html?ref=world

A Republican US President pushes hard for the US Government to play a more active role in K-12 education via “No Child Left Behind.”  A Democratic US President pushes hard for the US Government to play a more active role in health-care.  In regard to the latter, proponents of the health-insurance law argue that Congress acted within its authority under the Constitution’s Commerce Clause.  However, Ken Cuccinelli, the attorney general of Virginia, says the U.S. Supreme Court has never ruled that the clause allows Congress to require citizens to purchase a good or service like health insurance. Cuccinelli’s complaint also argues that the Virginia law that outlaws the federal government from forcing state residents to purchase health insurance trumps the federal law because it is a matter assigned to the states under the Constitution’s 10th Amendment. That amendment says that all powers not explicitly granted to the federal government remain with the states.

In spite of being semi-sovereign (plus having the residual sovereignty beyond that which is enumerated for them and for the US Government), the State governments have generally been sleeping through federal encroachments for decades.  This is understandable, as past efforts to thwart federal encroachment have failed.

In 1830, Andrew Jackson sent federal troops into South Carolina because its legislature had decided that it could nullify federal law encroaching on its domains of governmental sovereignty.  The South Carolina legislature relented (though its succession document would be retreived in 1858 after the Congress passed a tariff on rice and cotton exports).

In 2010, one would think that the lesson against nullification had suddenly been lost on several of the State governments.  In March, the Senate defeated an amendment that would have allowed states to opt out of the health-insurance requirement.  Yet the governor of Virginia signed the nullification bill into law nonetheless.  The policy argument against nullification stresses that state opt-outs would reduce the size of the insurance pool and thus preempt the anticipated cost-savings.  There is also the point that if access to health-care is indeed a redistributionist right, then it could be argued that it ought to exist in the entire Union.  However, such a right could be argued to be basic law, and thus requiring an amendment to the US Constitution.  Alternatively, it could be argued that the determination of whether a right is involved ought to reside with the states.  In terms supremacy and nullification, if the power to require health-insurance is not within the commerce clause, then the federal law would not override state laws to the contrary.  However, it is commonly thought that preemption and supremacy go with any US law.  Yet this has not stopped states from reasserting their constitutional prerogatives.

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on March 12, 2010 declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota. On the day before, Wyoming’s governor, Dave Freudenthal, a Democrat, had signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul. In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session that week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.” Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority. Rhode Island, Vermont and Wisconsin — none of them known as conservative bastions — are considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

Given the Nullification Crisis in the nineteenth century, the actions in the twenty-first seem likely to be dismissed by US Supreme Court. Given the structural conflict of interest, the federal high court has tended historically to interpret the Constitution in the federal government’s favor. It is like having a member of one of the teams as the umpire.  So it is easy to dismiss the state laws as political theater.  However, ignoring them would only stoke the fires of resentment and add to the pressure that could eventually dissipate the Union.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Alabama.  Article 6 of the US Constitution indicates that federal law is superior over state law where there is a conflict, but it wouldn’t make sense for this to apply outside of the federal government’s enumerated powers—for otherwise why even include the latter?  In other words, a constitution cannot be both consolidated and federal with the republics having some governmental sovereignty, or autonomy, from the government of the Union.  We can’t rely on elections to protect the balance of power necessary for our federal system to remain federal (and thus operate as a check on each government); there are too many other contending issues and character traits at issue in a given election.  “Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain,” said Mr. Woods of the von Mises institute. Also, drawing the federal dividing-line by election presumes that the people understand federalism.  Even so representatives pushing for more of a balance miss it. “Who is the sovereign, the state or the federal government?” said State Representative Chris N. Herrod, a Republican from Provo, Utah.  In actuality, both governments have governmental sovereignty in the American federal system.  It is not “either or.”

States opting out is not unprecedented in federalism.  In the EU, for example, three States have opted out of the EU’s currency.  One State has opted out of the EU’s social program.  If the US Supreme Court will not allow us to do likewise, we can propose and ratify an amendment to the US Constitution instituting a process for it.  If we deem that as insufficient to restore a balance, we can propose and ratify an amendment stating that the supremacy and spending clauses pertain only to the powers that are enumerated expressly for the US Government.  Lastly, we can propose and ratify an amendment that puts sitting State Supreme Court Justices on the US Supreme Court (on a rotating or nominated basis) so to counter the conflict of interest in having a federal branch being the umpire on conflicts involving federalism questions.  The deck, as it were, is presently stacked against a healthy federal system in favor of a consolidated Union.  The individual republics standing up in protest by passing laws that will likely be cut down by the US Government Court may be counterproductive because people might assume the efforts are sufficient and go on to other things.  Proposing and ratifying amendments to the federal system take a lot of energy—it would be ashamed to dissipate it just when it could be used for structural changes…systemic change…real change.

Sources: http://www.msnbc.msn.com/id/35906430/ns/politics-the_new_york_times// ; http://politicalticker.blogs.cnn.com/2010/03/24/virginia-governor-to-sign-law-firing-back-at-health-care-bill/?fbid=UERb4EI-c6a#more-96318

Rand Paul claimed when he was the republican nominee for the US Senate from Kentucky that there is not enough money just in welfare to cut the federal government’s deficit. Approximately 40% of the budget is military. So the candidate said, “Part of the reason we are bankrupt as a country is that we are fighting so many foreign wars and have so many military bases around the world.” The Tea Party is animated by opposition to the exorbitant levels of federal spending and indebtedness. Applying their frugality to foreign policy, the party could make a clean break from the neo-cons. If one believes that bureaucrats are incompetent in running the healthcare system in the US, one is apt to be dubious of plans to have bureaucrats create democracies abroad. Also, we can’t viably fight the neocons’ wars with the supply-siders’ tax rates—and a bankrupt country cannot defend itself.

According to Randolph Bourne, in War is the Health of the State, “As a general rule, the longer a war lasts, the more centrally planned and government-controlled the entire economy becomes.” Robert Higgs wrote in Crisis and Leviathan that among the effects of WWI were “massive government collusion with organized special-interest groups; the de facto nationalization of the ocean shipping and railroad industries; the increased federal intrusion in labor markets, capital markets, communications, and agriculture.” Thomas DiLorenzo points to these quotes and adds that inflationary war finance “inevitably leads to calls for price controls, which inflict even greater damage on the private enterprise system by generating shortages of goods and services.” Such shortages in turn can serve as an excuse for even greater central-planning powers. The Tea Party could thus have good reason in going with its principles for opposing even a standing army. Rand Paul wants the federal budget to be 80% national defense. “So I believe that the defense of our country may be the primary enumerated power. Does that mean I believe in a blank check for the military? No.” This, in short, is the argument for why the Tea Party could come out against the war machine and protest along side the left—albeit for different reasons.

Rand Paul’s mention of defense as the primary enumerated power is interesting because it hints of another possible counter-intuitive conclusion. Although defense is not primary (as regulating interstate commerce—preventing war between the states is another crucial power delegated to the US Government), the notion that the federal, or general, government be limited to its enumerated powers and that this be reflected in its budget does not exclude the states engaging in social spending.  In fact, the notion of fifty laboratories befitting a federal empire (of states, or countries) implies that the state budgets take on social spending.  That is, the Tea Party being in favor of federalism could mean that social spending (and thus programs) are to be handled by the several states individually rather than by the general government. In being for this shift, the Tea Party is not necessarily opposing social spending (only that which is done by the US Government—the general government of the Union).  Rarely is this distinction made, which allows for the federalists in the Tea Party to accept even universal health-care in any state where the majority vote for it through their legislatures. We typically assume that if someone opposes a program in Washington that the person doesn’t want it at all; it could be that the person is oriented to re-establishing federalism rather than being opposed to the policy itself.

So the Tea Party could come out with a lower US Government budget, with a higher proportion being spent on defense (but less than today), and at the same time leave it up to the several states to decide for themselves what sort of domestic programs they way.  I contend that an ardent federalist in Texas would not necessarily oppose Massachusetts having a single-payer system of universal health care as long as the majority of the citizens of Mass wanted it.  The federalist would object to the program being applied by the US Government because it would apply in Texas and because it would exceed the enumerated powers delegated to the US Government by the states.

Sources: Thomas Di Lorenzo, “Inflating War: Central Banking and Militarism are Intimately Linked,” The American Conservative (August, 2010), 16-18.
W. James Antle, “Rand Plan: Will the Tea Parties Turn Anti-war?” The American Conservative (August, 2010), 8-9.