Common Cause, Federalism and the Constitution.

by Brent Lawler

We as Americans all claim to love our Constitution. Whether your politics are on the right, left or somewhere in between. But what does it mean to love the Constitution? To different people, I suspect, it means different things. Especially since most people cannot agree on what the document actually says.

Since the beginning we have been jostling back and forth as to what the Constitution actually means. Of course, original intent is easily discernible by reading the notes from the Philadelphia Convention, State debates on ratification, and the “Federalist” and “Anti-Federalist” papers. Today, neither side completely or honestly represents the Constitutions true meaning since it doesn’t fit either agenda in the aggregate. Consequently, this argument and the factions created to defend each side, has served over time to split our beliefs about liberty, and undermine our uniting principles. But, is there an underlying theme that exists within the Constitutions true intent that can bring us all together and once again unite us under common cause? Or have we lost the concept of liberty altogether, along with any semblance of a free society?

 What does the Constitution actually constitute?

The impression that many Americans are under today is that the Constitution was drafted as some sort of “charter of rights.” That it was the Constitution that gave us our rights as Americans, and as such was the purpose of the founders in drafting the document. Nothing could be further from the truth.

It is important first to understand what the founders were trying to achieve with drafting a new Constitution to replace the Articles of Confederation.

Under the Articles, we were a Union of States that seemed to be in crisis. There were many problems that needed to be dealt with if the Union were to be continued. Such as, The General Government did not have enough power or money to sufficiently defend the Union in the event of an attack. Also, the States were erecting trade barriers between each other in the form of tariffs. These problems were blamed on flaws in the Articles, and a lack of sufficient power in the General Government. So, after much toil, and effort by James Madison and the Federalists, (Nationalist’s would have been a more suitable name as the Anti-Federalists, or republicans as they were known then, actually promoted federalism) a Convention was called in Philadelphia to “amend” the Articles and deal with such flaws.

Madison showed up to the convention with an entirely new plan-”the Virginia Plan,” which was presented by way of Edmund Randolph. It contained the basis for the constitution, and began the long process of abandoning the Articles of Confederation altogether, and finally giving us the Constitution.

The purpose of the Constitution was to constitute a new and more powerful form of government. One that could bring an end to the issues that had arisen under the Articles of Confederation, have enough power to defend the Union from attack, and resolve trade barriers. But not enough to relinquish the sovereignty of the States. In other words, the Constitution was a plan of government, and how to limit that government. Nothing more, nothing less.

The Bill of Rights is a charter of rights, right?

What about the Bill of Rights then? Is that not a “charter of rights?”

All outward appearances would suggest that it is. However, this enumeration of rights was not meant to be a finite list of rights that the Constitution bestowed upon us all. If anything it declares that our rights are off limits to the federal government.

First, to understand that the Bill of Rights was not a finite list, we need only look at the reason for including the 9th amendment.

Many of the founders were afraid that if they were to list the rights that could not be infringed upon by the new government, that would give future governments the impression that any rights not enumerated would be subject to their regulation or infringement. Therefore, it was deemed important to exemplify this point, and quell any future assumptions by including the 9th amendment:

“The enumeration in the Constitution, of certain rights, shall not be  construed to deny or disparage others retained by the people.”

Not only was the Bill of Rights anything but finite, but its ultimate goal was to keep the new federal government from infringing on the rights and liberties the States and their people already enjoyed.

The rights of man were not bestowed upon us by the constitution, as many are led to believe. Much to the contrary, our rights are by nature, God-given and inalienable. We are born with them. This concept is known as natural rights.

You see, the peoples rights and liberties pre-existed the creation of the Federal Constitution. They were already in practice, and the States legislatures had already protected them (not created them) within their own constitutions.

Why then, would the States need to protect their rights a second time within the Federal Constitution?

They didn’t…and that was not the purpose of the Bill of Rights. It’s purpose was to ensure that the new government could not over-rule the States when it came to their rights and liberties. They wanted to keep their right to self government, as they were wary of central government infringement (see King George). In other words the Bill of Rights was meant to restrict the new federal government, not the States, from infringing on rights already protected by the States. The States had just won their independence they were not about to give up their sovereignty, nor their ability to secure their own liberties. That just wouldn’t make sense.

As the preamble to the bill of Rights clearly States:

THE Conventions of a number of the States, having at the  time of their adopting the Constitution, expressed a desire, in order to prevent  misconstruction or abuse of its powers, that further declaratory and restrictive  clauses should be added: And as extending the ground of public confidence in the  Government, will best ensure the beneficent ends of its institution.

Who or what were they trying to prevent misusing powers by further restrictions? Themselves? Not likely. It would stand to reason that they were trying to limit the newly created federal government they were so weary of. Conveniently the preamble is left out of most copies of, and our learning of the Bill of Rights in public schools.

The Constitution is Federal in nature and not a National one

Often referred to as “the Father of the Constitution,” James Madison described the soon to be ratified Constitution as Federal in nature, not National. This serves to back up my points about State sovereignty, and the Constitution, and Bill of Rights applying only to the new federal government.

“Each State, in ratifying the Constitution,
is considered as a sovereign  body, independent of all others,
and only to be bound by its own voluntary  act.
In this relation, then, the new Constitution will,
if established, be  a FEDERAL, and not a NATIONAL constitution.”
- James Madison

Today most assume, due to minimal education on the subject, and activist judges “interpretations,” that the Constitution was always meant to be our National Constitution. That it was to supersede the State Constitutions, and force States into compliance of federal laws. If that were true, what would be the purpose of having a State Constitution, or State legislatures for that matter?

To solidify the fact that the States were not giving up their sovereignty by ratifying the Constitution, the 10th amendment was added:

“The powers not delegated to the United States by the Constitution, nor  prohibited by it to the States, are reserved to the States respectively, or to  the people.”

Knowing that the Bill of Rights was meant to limit the newly created federal government from encroaching on the liberties already enjoyed and protected within the States, the 10th amendment becomes much clearer in it’s intentions. It could be described as the exclamation point of the Bill of Rights.

What did Madison mean when he said the constitution would be a Federal one, and not National?

In short, it means that the States would not be giving up their sovereignty, (right to self governance) and it would not apply nationally. The States would only be giving up those powers which were outlined therein, and nothing more.

What about the “supremacy clause”?  For the answer to that I will direct you to Michael Boldin’s response to a New York Times article by Monica Davey concerning the supremacy clause:

“Here’s something important that NYT writer Monica Davey claims:

…the Constitution’s supremacy clause ordinarily allows federal law to, in essence, trump a state law that conflicts with it…

I have two main points to make here:

1.  The “supremacy clause” does not allow federal law to trump state law in all situations.  It only does so when both laws are in pursuance of a power that has been delegated to the federal government by “We the People.”  All those delegated powers are in the Constitution.

2.  We know that this is the case because Monica’s version of the supremacy clause was actually proposed by leading founders – and rejected.  When the Constitution was being drafted, James Madison and others proposed the “Virginia Plan.” A major part of this plan was to give the congress a veto over state laws.  It was defeated.  That means, that Davey is wrong in her claim.  Period.

So we know from that short lesson that the supremacy clause did NOT authorize the power that the New York Times is claiming.  In fact, the main things that are unconstitutional in this country are those times when the federal government exercises powers not delegated to it in the Constitution.

Unfortunately, though, not enough people know this important history of the Constitution, so they’re easily swayed by patently false statements.”

As you can see the “Supremacy clause” argument is easily defeated by historical facts and records.

A national system of government would be one that would give exclusive legislative, judicial, and executive powers to a central authority, allowing it to make laws and enforce them uniformly throughout the entire union. The founders (most of them) did not want this.

A federal system of government is one that only gives certain powers best suited for a central authority, while leaving all other powers intact at local and State levels. In other words division of powers to avoid centralization.  The latter is what the founding generation insisted upon in an effort to retain their liberty, and self-determination.

In this way the people of the sovereign States would be free to determine their own rules, and forge their own destiny, while the new government would be empowered to handle foreign affairs, trade, and a few other common interests that the States either couldn’t previously agree on, or thought would be best handled as a whole.

The most important aspect to this is leaving the States free to govern themselves as they see fit. And it is here where the people can find common cause, even when they do not agree. Which is essential in a land as vast as ours, with so many differing beliefs among such a large population. Losing this indispensable part of a federal system due to centralization is why we have become truly divided. Instead of solving matters of a social or regulatory matter in our own States and localities, we instead are making the same mistake as past republics. We try to solve our disagreement with top down, one size fits all solutions at the federal level. That only serve to divide us, and eternalize the fighting.

Why federalism is important

There are several reasons why federalism is preferred over nationalism. Alexander T. Tabarrok summed up the importance well in his 2001 article Arguments for Federalism. He Writes:

Federalism is so important to the cause of liberty and to the American constitutional structure—and so little appreciated—that its study should occupy a central place in the education of all Americans, especially students of government and law. Here I shall only summarize the key arguments for federalism.

His key points are as follows:

1. Laboratories of Democracy

States can try out laws and regulations. Good or bad, these policies can be an example for other States. when they are damaging policies it does not affect the entire Union

2. Diversity of Preferences

People of different States and localities have different preferences. Therefore national one size fits all laws only serve to divide us and keep us fighting.

3. Subsidiarity: Matching Economic and Political Jurisdictions

Subsidiarity: “higher level governments should not do anything that lower levels government can do as well or better.”

Impact jurisdictions should be matched to political jurisdictions: Not using other States’/district’s

money for your State/district spending.

4. Liberty through Mobility and Competitive Federalism

Oppression at a national level is hard to avoid. Federalism allows for “voting with your feet, and provides competition for good government as a result.

Read the entire article to get a full explanation of all these points and more.

Common Cause

Finding what we all have in common is easy. We all have a natural desire to be free, and live as we see fit. Finding common cause is where it gets difficult, as we have fallen into the trap of using a nationalistic government to make others live and believe as we see fit. It is this that we must recognize as the main source of our discontent as Americans. We must learn once again how to live and let live. What may be right for the people of California, is not going to be a good fit for those in say, South Carolina. That is OK, as a matter of fact, that is the point here. We can find common cause in liberty. The liberty to live free and independent in our States and localities, while letting others do the same.

A common argument against the ideas presented here is that promoting States rights and sovereignty is asking for a return to discrimination, and “Jim Crow style laws.” Or that State sovereignty gave us slavery. This is patently untrue. First of all, the only reason slavery was not abolished by the constitution to begin with is because if compromise on the issue didn’t succeed, ratification would have been impossible.

Second, most of the founders knew that the issue of slavery would have to be confronted, and set up a federal system of government anyways. Not due to slavery’s divisiveness, but in spite of it. If they would have known that we would turn away from federalism in response to slavery, and use it as an excuse to strip the States of their sovereignty, they would not have guaranteed to every State, a republican form of government within the constitution. As republicanism (the idea, not the party) and federalism go hand in hand and are one in the same as far as a system of government is concerned

Lastly, exactly what State or locality would try to get away with the type of discrimination we saw after the War Between the States, or attempt a return to segregation, or “Jim Crow laws” in todays world? It just would not happen. People do not support it anymore. I’m sure there are some who would and there always will be.  But we will never see an acceptance of such disgusting laws again.

Conclusion

When it comes to forging their own destiny, the States have given up almost all of their freedoms to our federal government. Most have not been handed over willingly, but by usurpation, or Supreme Court activism and revision. None the less, we are left in our States, subject to the will of the federal government, or the electorate as a whole when it comes to determining which are the right set of rules and which are wrong. This is not how the founders imagined our system of government would be run. As we have seen, this is exactly what they were trying to avoid.

We must see a return to the “live and let live” mentality, and accept that we can agree to disagree peaceably through a return to founding principles. We must once again unite under the banners of liberty and federalism. If we do this, we could once again find common cause. Even among those with whom we disagree. If we do not, we are doomed to fail.

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