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American federalism: What Changed between 1787 and 2004?

Commentary by Steve Scroggins

With Thanksgiving coming this week, I was looking for some relevant links to place on the GHC website, such as George Washington's first Thanksgiving Proclamation. I found a website containing "the Papers of George Washington."

The introduction gave background on the first Thanksgiving Proclamation. What struck me as noteworthy in the introduction was the deference with which President Washington treated the governors of the several States. This respect is not surprising for those of us who are familiar with early American government from the end of the Revolution (1783) to the Articles of Confederation to the drafting and ratification of the U.S. Constitution.

For everyone steeped in the propaganda and folk lore of the American Empire, and relatively unfamiliar with true American history, this would come as somewhat of a shock. Can you imagine the President of the United States asking State governors for anything?

It was universally understood by the Framers----and the State governments that ratified the Constitution----that the States were the supreme governments and that the federal government was the subserviant, limited agent of the States, authorized to carry out only the specific and enumerated powers delegated in the Constitution. If the President wanted to Proclaim something (especially something not specifically authorized in the Constitution), he had to ask the Governors or legislatures of the States for their approval and assistance.

Naturally, it was a Southern member of Congress who took exception to Washington's request. Everyone had great respect for Washington (a Southerner), but I suspect that this Southern Representative was just being a stickler for the roles of government and was wary of any precedents or power-grabs by the federal executive.

The reasoning for the Congressman's concern about the Proclamation, as I interpreted it, was a vigilant guarding of the turf (States rights). By design, the distribution of powers between the States and the federal government and between the respective branches of those governments (executive, legislative, judicial) was intended to provide "checks and balances" as each branch and each level of government jealously guarded its own turf to assure that others did not usurp their authorized and reserved powers.

The conflict between the centralizers and the decentralizers was apparent from the beginning. The exteme Federalists (e.g., Alexander Hamilton et. al.) wanted a National government with the States as merely political subdivisions of the central government. The moderate Federalists (e.g., Washington, Madison, et. al.) wanted a hybrid government with a central (federal) government strictly limited to specific and enumerated powers. The anti-federalists (Thomas Jefferson, George Mason, Patrick Henry, et. al.) wanted no central government at all and preferred to stay with the Articles of Confederation.

Once the Constitutional Convention was complete in 1787, the Constitution had to be "sold" to the States and their delegates, that is each State government held its own convention to determine whether or not to ratify the Constitution and join the new union. Nine States was the specified minimum for the Constitution to take effect.

The anti-federalists, who justifiably feared a central government (history proves their fears wise), began publishing letters criticizing the dangers of the Constitution (namely corruption and usurpation of unauthorized powers ultimately leading to lost liberty) under pseudonyms such as Cato, Brutus, and Cincinnatus. The Federalist Papers are a collection of rebuttal letters written to defend and promote ratification of the Constitution. They were written by James Madison, John Jay and Alexander Hamilton under the pseudonym "Publius."

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State." --James Madison, author of the Constitution, in Federalist Paper No. 45.

The author of the Constitution (Madison) was very careful not to use the word "national" or "nation." It was a confederation of sovereign, free and independent States voluntarily banding together for their mutual benefit. Each State had the option to join or not join. And when problems emerged that outweighed the benefits, it was universally understood that the Sovereign and Independent States could leave at will. In fact, several states included specific pre-conditions to that effect in their ratification documents.

"It is not by the consolidation, or concentration, of powers, but by their distribution that good government is effected." --Thomas Jefferson

"The consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it." --General Robert E. Lee, in an 1866 letter to Lord Acton.

The conflict between the federal government and the State governments has continued throughout American history and as long as some of us remember how it was in the beginning, that is, what the Framers intended, the conflict will continue. As Confederate President Jefferson Davis so aptly said, "The principle, [states rights] for which we contended is bound to reassert itself, though it may be at another time and in another form."

The American Revolution has been characterized as primarily a "tax revolt," (remember the Boston Tea party) though one must agree that there was another more important principle. The "great Experiment" was begun to see whether people can really govern themselves. As the Declaration of Independence made clear, Americans had a long, long list of grievances against Great Britain's King George which just happened to include "taxation without representation." Arguably, the most important principle was that "governments derive their just powers from the consent of the governed."

The second American Revolution, known most commonly as an oxymoron, "the Civil War," has other more accurate names including the "War Between the States," the "War for Southern Independence," the "war to Prevent Southern Independence," the "War of Northern Aggression" and "Lincoln's War." I'd like to add another suggestion: "The War to Preserve Federal Revenues."

Popular myth (propaganda) holds that this war was about slavery, but no substantial review of the facts will support that proposition. Lew Rockwell, in his essay, Genesis of the Civil War, points out that Lincoln promised NOT to interfere with slavery...but he also promised to enforce the tariff laws. Each State's secession ordinance was in effect a Declaration of Independence.

Like the first Revolution, the war could be characterized as a "tax revolt" or "separation to avoid unfair taxation," but also like the Revolution, it was a War to defend the right of the people to govern themselves, to defend the principle of "the consent of the governed," and it was simply self-defense against an illegal and immoral invasion. Note that Virginia didn't secede until Lincoln called for 75,000 volunteers to invade the South. Without Lincoln's ordered invasion there would have been no war.

Author Thomas DiLorenzo and others have characterized the 'War to Prevent Southern Independence' as a victory of the Centralizers or "Nationalists." Since that war, the republic with divided sovereignty our Founders left us has been turned inside out. The relative roles of the State governments and the federal government have been reversed. The federal government is now the supreme government and the states are mere political subdivisions of the national empire. The Constitution is routinely ignored and the vast majority of federal agencies and programs are not authorized by the Constitution. The States' effective ability to check or oppose unauthorized power-grabs ended in 1865.

Since the elections of 2004, there has been a lot of squawking about "blue state secession." The hypocrisy embodied in such proposals is discussed in another column. There are some "legal scholars" who still argue that secession is not legal. I gather that many law schools today foist this ridiculous assertion on their students. For example, a Boston paralegal named Russ Stein, in a Lew Rockwell commentary entitled The Califoria Revolution Begins, suggests that secession is illegal. Stein's commentary nevertheless suggests that Jefferson Davis was right, the issue has reasserted itself in another form.

Not being a lawyer, and therefore untrained in how to read meaning from between the lines or "emanating from the prenumbras," I simply read the text and I see that secession is not prohibited by the U.S. Constitution nor is it even mentioned. I see in the Ninth and Tenth Amendments to the Constitution that powers not specifically delegated to the federal government are reserved to the People or the States. I see from the prevailing debate as documented in the Federalist Papers and the Anti-federalist papers that the consensus was that the States "are, and of Right ought to be, free and independent States" (per the Declaration) and therefore, those States do not relinquish their sovereignty by ratifying the Constitution. Finally, I see in the Declaration of Independence the overriding principle that "governments derive their just powers from the consent of the governed." Taken altogether, it's clear that States do have the right to secede.

The key question is, will the federal government allow them (the Blue States or any others) to leave peacefully this time?

In 1794, the Whiskey Rebellion erupted and folks in Pennsylvania and elsewhere (southern states) refused to collect and pay the federal excise tax on alcohol. President Washington personally led 13,000 militia troops into the western Pennsylvania frontier as a show of force. "Yes, you will pay the taxes." Treasury Secretary Alexander Hamilton noted that the tax was being evaded and unpaid in a number of Southern states, too. But Hamilton did not recommend enforcement (a show of force) in those states. This is because secession and rebellion were very REAL threats in those days and the federal government didn't have the power to fully enforce its revenue laws THEN.

If Pennsylvania had rapidly held a convention and repealed its ratification (seceded), would Washington have led troops to enforce the federal tax collection? Of course, I can only speculate, but I strongly believe that he would not have done so...and he would have had difficulty finding sufficient militia to carry out the conquest, even if he were inclined to try it. The Federalist Papers (#46 below) suggest that the States would not have tolerated such coercion.

"...But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity?" --James Madison, from Federalist Paper No. 46

In late 1860, Southern states began seceding and accordingly, they discontinued the collection and payment of federal tariffs (considered null and void in their jurisdiction). Lincoln's language suggests that he was primarily concerned with "preserving the union" but it's obvious that his real concern was preserving the federal revenues (without which centralization of power is impossible). Hence, my new term for the War, "the War to Preserve Federal Revenues."

Numerous editorials in northern newspapers document that lost tax revenues and fear of competition (lost shipping business) were the primary reasons to oppose the independence of the South.

Northern Newspaper Editorials

The predicament in which both the Government and the commerce of the country are placed, through the non-enforcement of our revenue laws, is now thoroughly understood the world over....If the manufacturer at Manchester [England] can send his goods into the Western States through New Orleans at less cost than through New York, he is a fool for not availing himself of his advantage...If the importations of the counrty are made through Southern ports, its exports will go through the same channel. The produce of the West, instead of coming to our own port by millions of tons, to be transported abroad by the same ships through which we received our importations, will seek other routes and other outlets. With the lost of our foreign trade, what is to become of our public works, conducted at the cost of many hundred millions of dollars, to turn into our harbor the products of the interior? They share in the common ruin. So do our manufacturers...Once at New Orleans, goods may be distributed over the whole country duty-free. The process is perfectly simple... The commercial bearing of the question has acted upon the North...We now see clearly whither we are tending, and the policy we must adopt. With us it is no longer an abstract question---one of Constitutional construction, or of the reserved or delegated powers of the State or Federal government, but of material existence and moral position both at home and abroad.....We were divided and confused till our pockets were touched." ---New York Times March 30, 1861

The Southern Confederacy will not employ our ships or buy our goods. What is our shipping without it? Literally nothing....It is very clear that the South gains by this process, and we lose. No---we MUST NOT "let the South go." ----Union Democrat , Manchester, NH, February 19, 1861

From a story entitled: "What shall be done for a revenue?"

That either revenue from duties must be collected in the ports of the rebel states, or the ports must be closed to importations from abroad....If neither of these things be done, our revenue laws are substantially repealed; the sources which supply our treasury will be dried up; we shall have no money to carry on the government; the nation will become bankrupt before the next crop of corn is ripe.....Allow rail road iron to be entered at Savannah with the low duty of ten per cent, which is all that the Southern Confederacy think of laying on imported goods, and not an ounce more would be imported at New York; the railroads would be supplied from the southern ports." ---New York Evening Post March 12, 1861, recorded in Northern Editorials on Secession, Howard C. Perkins, ed., 1965, pp. 598-599.

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Many early editorials, such as the one below supported the right of Southern states to secede...but upon reflection (above), their wallets were more important than their consciences (or the rights of others) and the war fever went into high gear once Lincoln provoked Charleston into firing on federal ships attempting to resupply and reinforce the garrison at Fort Sumter.

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"If the Declaration of Independence justified the secession of 3,000,000 colonists in 1776, I do not see why the Constitution ratified by the same men should not justify the secession of 5,000,000 of the Southerners from the Federal Union in 1861..."

"We have repeatedly said, and we once more insist that the great principle embodied by Jefferson in the Declaration of Independence that government derives its power from the consent of the governed is sound and just, then if the Cotton States, the Gulf States or any other States choose to form an independent nation they have a clear right to do it..."

"The right to secede may be a revolutionary one, but it exists nevertheless; and we do not see how one party can have a right to do what another party has a right to prevent. We must ever resist the asserted right of any State to remain in the Union and nullify or defy the laws thereof; to withdraw from the Union is another matter. And when a section of our Union resolves to go out, we shall resist any coercive acts to keep it in. We hope never to live in a Republic where one section is pinned to the other section by bayonets ." --Horace Greeley, New York Tribune [ full editorial 12/17/1860 ]

We all know what happened, Lincoln ordered troops to invade the Southern states and destroyed the Constitution as left us by the Framers. The core idea of this commentary was to ask the question, "What changed between 1787 and 1860?" The following excerpt from James Perloff's "Yankee Apology" puts it in perspective.

In 1788, the Massachusetts state convention ratified entry into the Union by a vote of just 187 to 168. Let us suppose that, a couple of years later, a second vote has rescinded the first, and Massachusetts respectfully announced: “Upon further consideration, we have decided that belonging to the Union is not in the state’s best interest.“ I wonder if anyone can imagine George Washington issuing the following proclamation:

“ It has come to my attention that Massachusetts intends to depart the Union. I declare Massachusetts in rebellion! I am requesting the Governors of the states to muster armies which are to proceed to Massachusetts and invade it. I am dispatching federal warships to blockade Boston Harbor. Upon capture, the city is to be burned to the ground. Federal commanders shall torch other Massachusetts cities and towns as they see fit.

“I, George Washington, do further declare, that because the people of Massachusetts have perpetrated this brazen treason, all their rights are forthwith revoked. Of course, if any Massachusetts resident disavows his state’s dastardly decision, and swears an oath of loyalty to the federal government, his rights shall be restored. Such cases excepted, federal soldiers should feel free to loot any Massachusetts home. Crops not seized for army provisions should be destroyed without regards to the needs of the rebels and their families. After all, war is hell.

“And to citizens of other states, take warning! Consorting with the Massachusetts rebels will not be tolerated. It has come to my attention, in fact, that certain leaders and legislators in New Hampshire and Connecticut have expressed sympathy for their cause ! I am ordering federal troops to round up these “border state “ turncoats. They will [be] jailed without hearings. I hereby revoke the right of habeas corpus just accorded under the Constitution. In times as these, suspicion alone shall be suitable cause for imprisonment....”

No one believes Washington would have issued such a proclamation. And if he had, he would have swung from a tree. True, Lincoln did not state things so bluntly, but the foregoing accurately reflects Yankee policy. What had changed between 1789 and 1861 to warrant such a response? --James Perloff, article in Southern Partisan, 2nd Quarter 1997 [ Full Article ]

Mr. Perloff is correct, Washington would NOT have issued the Proclamation above to declare war on seceding states. But since Lincoln's War, things and attitudes have changed.

Today, we still read Washington's First Thanksgiving Proclamation and we agree that it's completely appropriate for Americans to pause and thank Almighty God for the blessings we have. We should also pray, as David Anderson suggests in his commentary on the First Thanksgiving, that our federal courts---now FAR outside their original boundaries and limitations of the Constitution----will not decide that Thanksgiving is an unconstitutional holiday and one that governments cannot acknowledge. Some ACLU terrorist is lying awake at night, dreaming of ways to make this happen.

It's really up to us. Are we going to just watch and complain? Or...are we going to do something about it? Are we going to do as Jefferson Davis suggested, and make sure the "issue" is reasserted? Author Thomas DiLorenzo said that constitutional liberty "is an empty slogan unless the people possess the rights of secession and nullification.... Until these powers are restored – and the Fed, the income tax, and the Seventeenth Amendment abolished – Americans have no hope of ever returning to a regime of constitutional liberty.

In any event, I'm sure that many of us in the "red" States would be Thankful if President Bush would allow the Blue States to leave in peace. It's really hard to imagine anyone fighting very enthusiastically to keep them.