For the first time in 144 years State interposition (Madison) and State nullification and secession (Jefferson) have entered public discourse as remedies to usurpations by the central government of rights reserved to the sovereign people of the States by the Constitution. Since Americans are not in the habit of exercising these policy options, it is worthwhile to ask just what State legislators and governors can do to protect their citizens from usurpations by the central government.
First, they can begin by passing resolutions (as a number have done), declaring in no uncertain terms that all powers not delegated to the central government nor prohibited to the States by the Constitution are reserved by them; and that the States themselves have the authority to judge what is reserved and what is delegated–Supreme Court case law notwithstanding.
To deny this is to say that the central government can define the limits of its own power which flatly contradicts the Constitution’s language of State delegated and reserved powers.
Second, the States can insist that an office be set up in Congress to receive and respond to these resolutions. Resolutions are words.
They cost little to produce, but words have power. As the Scottish philosopher David Hume observed, political authority is based primarily on opinion not force. It is not merely iron bars that confine you to prison, it is also the guard’s opinion not to let you out. If you could change his mind, the bars could not restrain you.
A continuous flood of resolutions from the States about the constitutionality of this or that issue (and widely publicized), would serve to educate the public (and their rulers) about constitutional limits and alter the mind-set of politics in a decentralist direction.
Further, State legislators and governors should revive, where appropriate, the Jeffersonian discourse of State interposition, nullification, and secession as policy options. To deny this is to say that an American State is not a genuine political society at all, but a mere aggregate of individuals under control of a central government that alone can define the limits of its powers.
To hear such discourse in public speech can strengthen civic virtue and revive the long slumbering disposition of self-government that has been suppressed by a century of runaway centralization.
Lincoln understood the power of words, and advanced the cause of centralization by refusing to describe the States as sovereign political societies. He described them as mere counties authorized by central authority. He asked incredulously: “What is this particular sacredness of a State? If a State, in one instance, and a county in another should be equal in extent of territory, and equal in number of people, wherein is that State any better than a county?”
Lincoln was not describing the federative America that Jefferson and Madison founded, but an imagined and wished for centralized, unitary American state. It is time that the Lincolnian inversion of political discourse be inverted.
Third, In addition to changing the terms of discourse, State legislators and governors should engage in 10th amendment acts of recovering usurped authority. The least controversial of these acts would be simply to not accept federal money for projects that are judged unconstitutional, such as federal involvement in education. Refuse the money, and begin restoring state and local control over education or whatever the issue might be.
Fourth, in order to restore usurped constitutional authority, a State must be prepared, at some point, to resist federal intrusion. There is a long history of States doing just that. Georgia nullified the Supreme Court’s ruling in Chisholm vs. Georgia (1793); New England States nullified fugitive slave laws; and earlier New England townships nullified Jefferson’s embargo and the war of 1812 declared under Madison’s administration. Jefferson said “he felt the foundations of the government shaken under my feet by the New England townships.” Wisconsin was nullifying what it declared to be usurpations by the Supreme Court into the 1850s. There was a time when the States kept the central government under control.
Can this be done today? Before it is attempted a clarification is necessary. We must understand that any such constitutional challenge is a political one based on the States’ sovereign authority and not a matter justiciable by the courts. Genuine federalism in America can be recovered only by political action in the name of the State’s own authority and not by Supreme Court legalism.
Indeed, legalism only affirms that the Court has the final say over what powers the States have. When States interposed to block the Supreme Court’s orders to desegregate public schools in the South on the ground that such orders were unconstitutional, the move failed but only because racial segregation was not a popular issue.
Many scholars then and now thought that Brown v. Board of Education was bad constitutional law, i.e., that the court had abandoned its proper role of policing the Constitution in favor of social engineering. Most, however, approved of the engineering, and paid little regard to the constitutional cost.
But the process can be reversed. States can recover usurped authority by carefully choosing the right issue, at the right time, in the right circumstances, and for the right reasons. Such an act, of course, would require considerable political prudence and skill, and should not be attempted without a reasonable chance of support from public opinion. In such an act of lawful and constitutional resistance, the State would be answerable only to her other sister states. The action might spark a constitutional amendment as happened when Georgia nullified the Supreme Court’s ruling in Chisholm v. Georgia (1793) that an individual could sue a state in federal court without the State’s permission.
The States agreed with Georgia’s nullification and promptly passed the 11th amendment that prohibited such suits. That is how American federalism was supposed to work. The three branches of the central government would check each other, but it would be up to the sovereign States to keep the central government itself in check. The Constitution was to be enforced through political action of the States not by the legalism of nine unelected Supreme Court justices.
Another outcome might be a political settlement that would allow a State, or a number of States, to opt out of a class of federal acts judged to be unconstitutional or fundamentally repugnant. Other federal systems allow this possibility. For instance, the Canadian Constitution has institutionalized federal nullification. Any Province can nullify acts of the central government in the area of civil rights within its own borders, even though other Provinces may enforce the act in theirs.
The States can also try to restrict unconstitutional acts of the central government through amending the Constitution, but that is virtually impossible. Two thirds of both Houses of Congress are required to pass an amendment which must then be ratified by three quarters of the States.
Since 1790, over 10,000 amendments have been proposed to Congress. Only 30 have passed the Congressional gate-keepers, and 27 have been ratified. The other path is that two thirds of the States can compel Congress to call a constitutional convention–a very high bar to meet. It is, therefore, virtually impossible to limit the central government’s power by constitutional amendment. It is worth noting that the framers of the Confederate Constitution sought to overcome this barrier to self-government in Article 1, Section 1 which enacted that if only three States concurred on a constitutional amendment, Congress would have to call a constitutional convention. And only two thirds of the States would be needed to ratify the amendment.
To all of this it is often said that State interposition, nullification, and secession were eliminated as policy options by the Civil War. Brute force, however, cannot settle moral and constitutional questions. Lincoln’s claim that the Union is older than the States; that it created the States; that a State is merely an administrative unit (like a county in a unitary state), are historical and moral claims that must stand on their own. They cannot be settled by superior firepower but only by reasons that persuade.
The problems of limiting central power in a federal system of State delegated and reserved powers, which brought forth the doctrines of State interposition, nullification, and secession as remedies, are as topical today as they were when first broached in the 1790s.
Or it will be said that, even so, too much water has gone over the dam. Institutions of the central government are so entrenched, so entangled with powerful interests, and this system has gone on for so long that people have lost any sense of civic virtue on the State and local level.
It is certainly true that the central government has intruded into nearly every aspect of life, and disentanglement will not occur overnight. But centralization in America is not as intense and debilitating as it was in the former Soviet Union, from which, nevertheless, 15 States recovered civic virtue and seceded.
Moreover, the current State sovereignty movement suggests that State and local civic virtue are not dead in America. But as mentioned above, a shift in the decentralist direction will require a long course of political re-education.
And the sort of education required is not academic but practical–one exemplified in the conduct and civic virtue of State legislators and governors who take to heart Madison’s admonition in the Virginia Resolutions (1798) that State governments not only have the constitutional right of “interposition” to protect their citizens against usurpations by the central government but the “duty” to do so.
Finally, there is the objection that the primacy of State political action over Supreme Court legalism could work when there were fewer States, but now that there are 50 States interposition and nullification have become impractical. But If true that means the Union has simply grown too large for the purposes of self-government; in which case the obvious response is that it should be divided through secession into smaller political units that make self-government viable.
Consider how dull our notion of self-government has become. Congress has capped the number of representatives in the House at 435, a majority of which is only 218 representatives. A majority in the Senate is 51. A majority of both Houses is a mere 269 people. This small number, with concurrence of the President, rules over 300 million people. But worse. Congress has long ago alienated much of its legislative responsibility to the Executive and Judicial branch. Its main interest is in distributing its vast revenue (which now is nearly 3 trillion dollars) to its clients.
The President and the Supreme Court are the dominant rulers. The Executive office makes war, and its bureaucracy makes laws. The Supreme Court, with only 9 unelected judges, has become the most important social policy making body in the Union, and makes claim to be the final authority on interpreting the Constitution. Never in history have so many been ruled by so few.
As the American empire grows in population and as the ratchet of centralization tightens with each turn, talk of self-government becomes increasingly meaningless. The ratio of representatives to population in the House of Representatives today is one representative for every 690,000 people–a vacuous ratio for representation. When the population reaches 435 million, there will be one “representative” for every million persons.
What to do? Expand the size of the House? No; it is about the right size for a legislative body. The only remedy is territorial division of the Union through secession into a number of different and independent political units.
Such a division can spring only from political action by the States, each acting in its sovereign capacity. And what form the new order might take (whether a number of federal unions, a number of independent states, whether these will be large or small states like Singapore, etc.) can only be determined by political action of the States themselves.
The central government of the United States (that is, 9 unelected judges, a congressional majority of only 269, and 1 CEO) cannot manage the bloated and unwieldy empire that a century of ritualistic centralization has produced; nor will it ever relinquish power.
George Kennan thought that a discourse on how to divide the Union was bound to develop out of pressure generated by the sheer oversized character of the regime. It is too early to say that the current State sovereignty movement is the beginning of that discourse, but it might well be the beginning of the beginning.
Dr. Donald Livingston, professor at Emory University in Atlanta, has been called the preeminent political philosopher of our day in Georgia.
Copyright © 2009, Tenth Amendment Center