I’ll not mince words: The Supreme Court, having arrogated to itself a responsibility constitutionally reserved to the states, deserves a lot of blame for the ravaging effects that the abortion issue has had on public discourse. This issue arguably would be a lot less psychologically charged if it had been left to state legislatures to resolve.
I will carry the argument a step further: I contend that the court, by insinuating itself into every facet of American life, has undermined the deliberative capacity of states and localities in many ways. One could argue that this is a symptom of just how impossibly large and unwieldy the federal union has become.
The abortion issue not only has morphed into one of most contentious issues in America but has but also, certainly over the last 50 years, has sparked a considerable divergence of opinion over what exactly defines life.
Moreover, one could make the case that the wide divergence on the issue, which arguably was exacerbated unnecessarily by the Court’s 1973 ruling, also serves to underscore that the Framers were right from the start about country simply being too culturally diverse to be governed centrally.
Within the last century, the court ostensibly has expanded its purview at least partly based on the argument that Congress and state legislatures simply aren’t equipped to resolve such contentious, multifaceted issues. Yet, why should we assume that a court of nine legal specialists is any better equipped to resolve such a complex issue?
Fifty state legislators, comprised of thousands of people who arguably have far more knowledge of local concerns and aspirations of ordinary Americans, strike me as far better equipped to deal with such a damnably and emotional charged issue as abortion.
Way back in the mid-1970’s, I and my fellow classmates at Russellville Junior High School were blessed with an unusually gifted and dedicated 8th grade history teacher named Mary Alexander.
Mrs. Alexander, now long deceased, loved pointing out the irony of history, particularly in terms of how facets of it – whether these happened to be political or cultural ideals or ways of doing things – often re-expressed themselves at times when we least expected them, even when we thought that they had become discredited or simply had played out.
I never forgot her lesson. Indeed as an avid reader of history I am reminded of this on a frequent basis. Just when we think that some ideas have been discredited or forgotten and, consequently, consigned to history’s ashbin, they return with a vengeance, even with the sense of vibrancy and relevance that had distinguished them in previous decades or even centuries.
The rekindling of American federalism and even, perish thought, states rights, serves as an unusually timely example. I grew up at a time when federalism expressed as states sovereignty seemed throughly discredited. What seemed to have been an inexorable march toward human progress, LBJ’s Great Society programs, locked arm and arm with the civil rights struggle and the federal courts’ efforts to expunge the stigma of racial discrimination, seemed to have dealt, if not a fatal blow to states rights, at least a searing defeat that would leave this constitutional doctrine in what amounted to a semi-comatose state.
We were assured by teachers at every level of public education that states rights was a relic of the past – not just a quaint but even a disquieting one. I recall several political science courses in which the professor, a Great Society liberal, likened federalism to a marbled cake. The federal government was the cake, though states provided measure of enhancement, sort of like chocolate marbling.
Yet, history seems to be repeating itself with a vengeance. In the face of American federal impasse and national division, states, large and small alike, are reasserting the themselves. As I have pointed out on numerous occasions on this forum, it started more than a decade ago when then-California Gov. Arnold Schwarzenegger began characterizing his state as something resembling a nation within a nation. He successor, Jerry Brown, even began conducting a kind of incipient foreign policy related to climate change.
Recently, a prominent GOP leader, Allen West, has lobbied for a secession vote in the Texas State Assembly, a move that at least one GOP leader in another Western state characterizes not only as a positive move but also one that bears close watching.
More recently in Oregon, state Sen. Jeff Golden (D-Ashland) has proposed legislation that would reintroduce a state bank concept for Oregon, primarily with the aim of serving as a backstop for community banks and credit unions.
Golden holds up the Bank of North Dakota as the model for his efforts, stressing the role that this bank played in minimizing foreclosures during the Great Recession.
The Washington Post reports that small businesses in North Dakota, compared with their counterparts in other states, were ably served by this model. In fact, they secured more Paycheck Protection Program (PPP) loans relative to the state’s workforce than other states, with more than $5,000 per private-sector worker as of May 8, 2020.
Yet, why is all of this surprising? States, by their very nature, possess the accoutrements of nationhood. And this is as much a matter of practicality as a historical fact.
As a student of constitutional history, I not only find this fascinating but also instructional in terms of how it underscores the increasing inefficiency of centralized federalism. If developments such as these demonstrate one thing, it’s that no central government, certainly one so big, bloated and overextended as the imperial behemoth in Washington, possesses the omnicompetence to manage a polity of the scale of the United States.
The late Mrs. Alexander was spot on: History does repeat itself.
I wondered how much longer it would be before the Confederate Constitution, much like Confederate statues, would fall victim to cancel culture. Quite honestly, though, I don’t know what is more maddening: cancel culture or the intellectual laziness evincedby journalists, even relatively elite ones, who, either intentionally or unintentionally, aid and abet this malignant cultural trend.
AP journalist Jay Reeves characterizes the Confederate Constitution, which, incidentally, was debated and drafted in the Capitol in Montgomery in my native state of Alabama, as a vestige of white supremacy without even bothering to consider the document within its full historical context. And let’s make no mistake here: The Permanent Confederate Constitution was conceived within a wide intellectual and historical Anglo-American constitutional context and, for that reason alone, is worthy of serious discussion, despite its provisions safeguarding the institution of slavery.
It is appalling to me that Reeves never even bothered to explore this unusually rich context, which would have been standard practice among journalists as recently as a decade ago.
A Watershed Document
Before public discourse became so poisoned, the Confederate Constitution, despite the controversy associated with it, would have been characterized by some writers and academics as a watershed document, one that represented the outcome of a protracted, intense and often acrimonious debate on the nature and scope of federal power that began immediately following the drafting of the U.S. Constitution in 1789.
The Permanent Confederate Constitution could be accurately characterized as embodying the Jeffersonian School argument, which maintains that the federal government – the “general government,” as it was characterized by many in the decades following constitutional ratification – simply functioned as the agent of the contracting sovereign states. This was underscored by the Confederate Constitution’s preamble, which affirmed that each state, in ratifying the document, was acting in its “sovereign and independent character.”
Aside from reaffirming the Jeffersonian view of federal power, this revised constitution also introduced some remarkable innovations that not only are instructive today but that still hold currency as contemporary Americans struggle to rein in federal power and even more significant, contend with mounting interest in sectionalism and even secession. Indeed, the case could be made that these innovations are especially relevant today amid new sectional divisions pitting predominantly liberal blue-coastal states against predominantly and implacably conservative red heartland states – issues not all that different from the ones that plagued federal relations in the early 19th century.
A Six-Year Presidency and a Line-Item Veto
One notable innovation was how the Confederate framers altered the office of the presidency, both limiting and strengthening it. While restricting the chief executive to a single 6-year term, the Confederate Constitution also empowered him with line-item veto power. Such a constitutional prerogative potentially would have gone a long way toward reining in the Leviathan federal state, one that not only extends its hand into increasing facets of American life but even holds tremendous sway over the affairs of nations in far-fling corners of the world. Moreover, with such a constitutional safeguard, we likely wouldn’t be contending today with a $20-million deficit.
The constitution also prohibited Congress from levying protective tariffs that tended to benefit one section of the country over others, an issue that proved contentious in the formative stages of the young American Republic and that virtually rent it apart in the early 1830’s.
The long-term effects of protective tariffs arguably have had an especially deleterious effect on the fortunes of American development and national cohesiveness, not only by allowing one section of the country, namely, the mercantile Northeast, to grow rich at the expense of most of the others but also by enabling it to transform much of the rest of the country, notably the war-ravaged, economically prostrate post-Civil War South, into an economic extraction zone.
Reining in Federal Judicial Power
In what arguably could be regarded as the most noteworthy innovation of them all, state legislatures were entitled to remove corrupt or constitutionally unscrupulous federal judges living in their states by a two-thirds vote of both houses. Ponder for a moment all of the contentious 21st century issues that could have been resolved by this provision. It would have obviated the need for state legislatures to resort to strategies such as interposition and nullification that contributed significantly to two serious constitutional crises stemming from passage of the Alien and Sedition Acts in 1798 and the Tariff Act of 1828. Each of these contributed significantly to the protracted political impasse that culminated in a national breakup in 1861. Even more significant, though, such a constitutional safeguard likely would have contributed significantly not only to higher levels of restraint in the judicial branch but also in the federal legislative branch, as lawmakers would been more cognizant of the futility of passing laws that encroached on state sovereignty.
Yes, the Confederate Constitution was both an innovative and instructive, one among a long line of written constitutions within the Anglo-American tradition, one that also incorporates those of Commonwealth realms. And that is why it, along with others, should figure in prominently in any undergraduate or graduate coursework dealing with the protracted historical debate about the nature and scope of central power within a federal system. But like so much else in woke 21st century America, the Confederate States Constitution is now so thoroughly tainted by the stigma of white supremacy that it can never be regarded as anything more than a “forgotten relic of an ignoble cause,” borrowing Reeves’ description, and, consequently should remain locked away in archive and forgotten.
This only ensures that substantive debate in this country will grow even more constrained. But, of course, by now it should have dawned on most of us that this is one of the underlying aims of wokeness and cancel culture, which aren’t so much about fairness and inclusiveness as they are about stigmatizing views that threaten their hegemonic standing within American politics and culture.
Reeves’ article only served to underscore that we no longer function aa vibrant, open and free society, only one that pretends to be. And many of us are beginning to wonder how much longer elites, increasingly confident of the political and cultural power they increasingly wield, will bother with maintaining this pretension.
Texas: One of several states harboring a nascent secessionist movement.
I’ve been bowled over the last few weeks reading the growing number of articles in which mainstream columnists are finally coming to terms with a reality that I embraced more than a quarter century ago: the likely, if not inevitable, transformation of the American Union into a much looser federation or into a number of smaller nation-states.
Predictably over the last quarter century, I’ve even been labeled everything from a neo-Confederate and a racist to a secessionist and traitor for subscribing to such views.
Actually, far more prodigious intellects, notably, the late George F. Kennan, foresaw this inevitability years before I did.
I, for one, and despite my conservatism, respect the right of California and other left-leaning states to experiment with different domestic policies. I hope when all the chips are down that these enlightened blue-coast cosmopolitans will afford their counterparts in the red American hinterland the same courtesy. And lest we forget, that was the concept behind American federalism: that states possessed the attributes of nationhood but had chosen out of a desire for self-preservation against Britain and the other maritime powers of Europe to delegate a comparatively narrow range of powers to a general government that operated on behalf of the states.
Aside from all the constitutional arguments, there just comes a point when people outgrow relationships, whether these are business contracts, civic groups, friendships or marriages. And the simple fact of the matter is that America is simply too damned big and diverse to govern, at least, based on the cookie-cutter approach that Woodrow Wilson and the progressives devised for us roughly a century ago. We have reached the point where cultural evolution throughout through Europe and America has outstripped the ability of the central government to keep pace with it.
I really believe that. In fact, I think that this is one of the inherent flaws in federations: The constituent parts are often inherently fissiparous, with their own highly evolved cultures and political ideologies. These constituent parts don’t stop evolving when they enter into a federation: Their cultural and political evolution continues apace, sometimes to the point at which they feel compelled to question the utility of their relationship with the other members of the federation. Maybe it’s time for us to take into account that incontrovertible fact whenever we undertake the design and execution of another federation.
How close is America to a crackup? I’m not sure. Even so, I do believe that in many notable respects, we are drawing close to where the beleaguered Soviet Union found itself in about 1990. Either we find some way to renegotiate federal arrangements in the United States by devolving more power back to states and, most important of all, localities, or we face a situation where internal pressures build up to a degree that states and regions take it upon themselves to address these problems.
Deep-blue California’s nullifying tendencies vis-a-vis the policies of the Trump Administration are merely a taste of what is to come.
In fact, in an unusually comprehensive and informative column posted in the Intelligencer recently, one perceptive columnist, Sasha Issenberg, predicts that growing number of states may enter into interstate compacts to work through a number of intractable domestic problems. In the end, the United States may comprise up to three de facto federations: blue, red and neutral, each conducting their own unique domestic policies, while remaining parts of the United States.
Yet, even this columnist concedes that these de facto arrangements will only work for a time before the internal stresses build up and rend apart these federations, forcing each to move close to becoming bona fide countries.
For his part Kennan offered a sort of middle way, one to which I’m sympathetic: a union of about 15 or so constituent republics, to which the bulk of domestic powers would be entrusted, leaving the central government to run a common market and defense pact.
Whatever the case, we are very possibly approaching a constitutional impasse in which large states, particularly California, increasingly will assume more and more powers on their own, drawing us closer to a Soviet scenario. By that I mean that, despite our attempts to stay ahead of the problem by introducing institutional reforms, the country inevitably comes apart.
Gen. John Kelly has predictably ignited a media firestorm for summoning the temerity to state that Gen. Robert E. Lee was behaving like most Americans of his time by choosing state over national allegiance.
“I would tell you that Robert E. Lee was an honorable man,” Kelly said in an interview with Fox News commentator Laura Ingraham. “He was a man that gave up his country to fight for his state, which 150 years ago was more important than country. It was always loyalty to state first back in those days. Now it’s different today. But the lack of an ability to compromise led to the Civil War, and men and women of good faith on both sides made their stand where their conscience had them make their stand.”
Sorry if I offend some of you, but I proudly and zealously place state and region over country. I happen to believe that the federal government is a constitutional republic conceived with sharply delineated powers and commissioned by the people of initially 11 (later 13) republics to operate as their common agent.
Modern Americans may even find it astonishing to learn early 19th century students at West Point, including the future Gen. Lee, studied a constitutional textbook written by attorney and legal scholar William Rawle and titled “A Constitutional View of the United States” that acknowledge the right of secession.
Of course, many of the nation’s premiere historians are weighing in on these intemperate statements, wondering how a man of Kelly’s immense accomplishments and responsibilities could harbor such antiquarian views.
“This is profound ignorance, that’s what one has to say first, at least of pretty basic things about the American historical narrative,” said David Blight, a Yale history professor. “I mean, it’s one thing to hear it from Trump, who, let’s be honest, just really doesn’t know any history and has demonstrated it over and over and over. But General Kelly has a long history in the American military.”
As for the views of these historians, I call on all of you to consider how all facets of American education, for better or worse, have been transformed within the last 60-plus years, largely as a result of the infusion of federal money and the expansion of federal patronage that has followed.
This has been accompanied by what I have come to call a miasmic orthodoxy that has settled on all levels of American education. Under the circumstances, can you see how pluralistic thinking among scholars, especially within the humanities, has been undermined?
Elites are apparently having a hard time coping with the phenomenon of “identity awakening.”
In a recent column, Ramón Luis Valcárcel, vice-president of the European Parliament, follows a predictable path: Catalonian nationalists are “undemocratic” – they even evince authoritarian traits – and threaten the peace of Europe (even though they aspire to be a part of the European Union). Indeed, he goes so far to contend that secession doesn’t even constitute a legitimate undertaking in a state that meets all of the hallmarks of a democratic one (Spain, in this case). And, of course, add to that the suspicion of Russian collusion – the secessionists are “aided by pro-Russian bots of the stature of Julian Assange.”
I was also a bit taken aback by the use of “deplorable” early in the text.
Finally, the writer conveniently forgets that the vaunted Spanish experience, while purportedly democratic now, carries the painful memories of Francoism, during which Spanish national identity was rammed down Catalan throats.
Yet, I suppose we can derive some solace from what has just transpired in blue-state California, where Gov. Jerry Brown just signed a bill into law establishing California as a sanctuary state.
It appears that decentralist tailwinds are sweeping all over the world.
The greatest of all national centralizers, Old Abe Lincoln, must be rolling in his grave. With the signing of this bill, America seems to have come full circle to the spirit of Jefferson, Madison, and yes, perish the thought, John C. Calhoun, the ultimate red-state deplorable and the philosopher of nullification doctrine.
But that’s okay. Old habits die hard, and despite all the best efforts and fervent wishing of the European and American ruling classes, the basic human passion for local affinity and identity invariably trumps – no pun intended – centralism.
As a close friend of mine brilliantly observed, sooner or later everyone eventually embraces his or her inner Calhoun.
The editorial chutzpah of the mainstream media – The New York Times, The Washington Post, and CNN, in particular – never fails to amaze me.
Earlier this week, a New York Times editorial writer discussed the “last ditch effort” that would involve electors stepping up to deny Donald Trump the presidency – remarkable talk in the pages of a news entity that purports to be the national newspaper of record.
Imagine for a moment if the tables were turned and Hillary had won the presidency under similar circumstances – an Electoral College victory but with a popular vote deficit. Any talk of denying her the presidency through some Electoral College ploy would be laughed right out of an NYT Editorial Board meeting as muddle-headed right-wing idiocy and condemned as the rankest expression of hate mongering and authoritarianism.
But there seems to be a lot of surprising talk among the mainstream media in recent weeks, notably regarding state sovereignty issues.
Today, for example, the NYT Editorial Board expressed its solidarity with California’s desire “not to be an accomplice to deportation.”
Amazing, isn’t it? Now that the tables are turned, frank discussions about federal power are remarkably in vogue – in the “national newspapers of record, of all places – but only so long as they relate to the grievances of blue states. I caught myself simultaneously laughing out loud and shaking my head in disbelief watching California Congresswoman Zoe Lofgren bemoan the Electoral College outcome in a recent congressional hearing. She even conceded that secession has ascended to respectable levels of discourse now that citizens in respectable blue states such as California and Oregon were contemplating it.
Don’t misunderstand me. I am hoping fervently that this blue-state resistance against President Trump unfolds with zeal. It has the potential to open up a serious national dialogue about the future of federalism.
Moreover, these recently expressed blue state grievances reflect what a deeply divided nation we are. If all this acrimonious discussion talk about standing up to a Trump presidency reveals one thing, it’s that we are far too big and diverse a nation to be governed any longer by a federal model conceived more than century ago in the Industrial Age by progressive centralizers. To put it another way, imposing a one-size-fits-all domestic policy on a country characterized by this much ethnic, cultural and political diversity is sheer madness.
There, I’ve said it.
But let’s not forget that there would be little, if any, discussion of these issues if Hillary Clinton had emerged the victor last month.
That’s the disturbing part to all of this as I see it. Federalism, until now, at least, has remained off limits, simply because the “right” kind of people – the political leadership in the blue states – have been unwilling to discuss it. But I am holding out hope that Americans on both sides of the great political divide have finally begun to see the federal impasse for what it is: the big belching, flatulent elephant in the American living room.
I’ve speculated more than once on this forum that at least part of the interminable anger and chest beating among Hillary supporters in the election’s aftermath stems from the realization that they were so close to closing the ring on all of us dumb, reactionary red-state yokels.
The cultural war had ended, our national overlords assured us. History would remember Hillary’s resounding victory as a confirmation of that fact. All of us Deplorables would finally be brought to heel. Figuratively speaking, the dog collars would be attached and all of us would be marched down from the mountains onto the broad, enlightened urban coastal plains.
Of course, an unexpected thing happened on the way to oblivion: Trump’s remarkable electoral upset.
Some cultural skirmishing apparently remains. A few pundits even speculate that the Trump upset could mark a turning away and perhaps even an abandonment of the culture war. Some think that Trump may turn out to be a political realist, concluding that it’s time to put an end to all this disharmony.
Perhaps Trump may even end up affirming an insight that our Founders conceived almost a quarter millennium ago: namely that we are simply too diverse a nation for a culture war to have been started in the first place. Cultural issues are best resolved at the state and local levels. Perhaps he will even conclude that we are all better governed by 50 different social policies rather than by a cookie-cutter policy imposed from Washington.
Simply put, maybe the end of the Culture War will require a looser American Union.
Granted, ending the culture war will not make all Americans happy, particularly those among our ruling class who are deeply invested either professionally or financially in this protracted struggle. It will not be an attractive option at all for many deep-dyed blue Americans who live in red states and, conversely, for ruby-red Americans who live in blue states. Moreover, returning genuine sovereignty to the states ultimately may lead to a much looser federal union – perhaps even one from which New York, New England and “Cascadian” America may leave to federate (or, at least, work out forms of post-sovereignty arrangements) with parts of Canada.
As I said, none of these options come anywhere close to a panacea. But maybe Americans in time may conclude that to live and let live is preferable to a country in which tens of millions of Americans are, rhetorically, at least, at each other’s throats.