States’ Rights

States' Rights

Thomas Allen

I

    The essence of States’ rights is the dispersal and decentralization of political power. Its opposite is consolidation, which is the concentration and centralization of political power. The republican principle of not concentrating absolute political power in any one individual or body is a States’ rights principle. Because it disperses rather than concentrates political power, States’ rights are an antidemocratic principle. Democracy concentrates absolute political power in the majority.

    States’ rights do not mean the right of the States to do as they please. On the contrary, it limits the ability of the States to do as they please. 

    Whenever and wherever States’ rights are accepted as a valid principle, political subdivisions are able to judge the legality and constitutionality of acts of the government above them and are able to veto those acts judged illegal and unconstitutional. In a federation, be it a true federation or a pseudo federation, each State of that federation is able to judge the acts of the federal government and interpose and veto acts of the federal government, so far as they apply to that State when that State deems them illegal or unconstitutional. (A true federation is a confederation of several States. The United States prior to the War Between the States and Germany prior to World War I were true federations. A pseudo-federation is a State divided into several independent or quasi-independent parts. The Soviet Union, West Germany, and Brazil are pseudo federations.) Even in unitary countries, such as the United Kingdom, where regions thereof, such as Scotland, have guaranteed home rule, each of these regions has some veto over acts of the central government that the region judges illegal or unconstitutional. Even within a State, the counties have some veto over acts of the State government that the counties judge illegal or unconstitutional. Each political subdivision has the right to judge the acts of the government above it and veto acts judged illegal or unconstitutional if States’ rights are accepted as a valid principle.
 
    States’ rights do not end with political subdivisions. They include family governments and church governments. They may also be extended constitutionally to include other important segments of society, such as economic interests or racial interests. Whenever and wherever States’ rights are considered a valid principle, each of these bodies through their representatives has the right to judge the legality and constitutionality of the acts of their State and political subdivisions thereof and have the right to veto those acts judged illegal or unconstitutional so far as those acts apply to that body. To a certain degree, even individuals have the right to judge and veto laws. However, the veto of an individual may be overruled by a jury. The veto by the representatives of family governments, church governments, and perhaps some other segments of society is absolute and final. Under the principle of States’ rights, not only do political subdivisions have the right of veto, but so do the more important segments of society. 

    The following is an example of how States’ rights as just described could work in practice. Acting in their capacity as the representatives of family governments, the heads of households in each county elect members to a body that represents the family governments of that county. These bodies in turn elect members to a similar body that represents the family governments of the State. Now suppose that a county outlaws the spanking of children. If a sufficient minority, say about 10 or 20 percent, of the heads of households believes that the law usurps the authority or rights reserved for family governments and signs a petition proclaiming such and if the county board representing family governments agrees, then the law is vetoed so far as it applies to families. That is, parents or other members of the family can spank a child of that family and the law does not apply. However, if anyone else spanks the child, the law applies. If the State had enacted the antispanking law, the State board would be the body that would veto the law upon petition. If the State board fails to veto the law, then each county can judge the law. If the board of county commissioners, or preferably some other specific county board, finds the law unconstitutional and vetoes it, the law does not apply in that county. It does continue to apply in all other counties that have not vetoed it. As this example shows, the principle of States’ rights can be applied in a real situation without creating chaos.
 
    The question arises if the principle of initiative and referendum is a States’ rights doctrine. The answer is no. They are democratic principles. They are majority rule. An initiative is the positive act of enacting a law. Under an initiative, the majority imposes its will on the minority by enacting a law. A referendum is the negative act of repealing a law. Under a referendum, the majority imposes its will on the minority by repealing a law. Initiative and referendum are not States’ rights principles.
 
    There is at least one important difference between vetoing a law by the democratic principle of referendum and the republican principle of States’ rights. Under the doctrine of referendum, the law is vetoed completely; it no longer applies to anyone. Under the doctrine of States’ rights, the law is only partially vetoed. Although it no longer applies to that segment of society that has vetoed it, it continues to apply to all other segments of society. Thus, the vetoing body does not veto the law for other segments of society, which may desire the law (unless of course, they desire the law to oppress the segment of society that has vetoed the law in which case their plans have been foiled.) For example, the representatives of church governments judge a law of the State unconstitutional, i.e., the law usurps the rights, duties, or powers that belong to the church, and vetoes the law. The law would then no longer be of any force or effect with respect to any church or church official acting for and in the name of a church. However, it would continue to be enforced against all other segments of society. One of the important differences between veto by referendum and veto by States’ rights is the degree to which the law is repealed. 

    Applying a veto by States’ rights doctrine in lieu of a democratic referendum does not mean that the minority has the right to oppress the majority. On the contrary, the minority has no more right to oppress the majority than the majority has to oppress the minority. Under the States’ rights doctrine, instead of resorting to referendum and initiative to protect themselves from the minority, the majority uses the same avenues available to the minority to veto laws. That it can simultaneously protect the minority from the majority while protecting the majority from the minority makes States’ rights vastly superior to democratic doctrines, which can only protect the majority. 

  Why not use the courts to decide the constitutionality and legality of governmental acts instead of resorting to veto under the principle of States’ rights? First, courts are part of the government. Being part of the government, courts cannot always be relied upon to act in an unbiased manner. Anything that adds to the power and importance of government adds to the power and importance of the courts. Most men prefer having power and importance to not having them. Therefore, the inclination of the courts is to increase their power and importance. The result is that the power and importance of the government are increased at the expense of the other segments of society. Second, in a republic, the courts are created by the federated parts of the body politic. In a federation, they are created by the federated States. Courts are created agents. As such they should not have the final say. The creators, each acting in its independent capacity, should be the final judge. Although the courts should be the first to judge the constitutionality and legality of governmental acts, for these two reasons it should not be the last.

    States’ rights is a principle that limits political power. It decentralizes and disperses political power. It allows each part of the State to judge whether the acts of the State trespass on the rights, duties, or powers reserved by that part of the State and to veto those acts that are judged to usurp these reserved rights, duties, or powers. It protects the minority from the majority while protecting the majority from the minority. States’ rights are a principle of liberty.

    The time has come to resurrect the principle of States’ rights. The time has come for a free and independent confederation of free and independent Southern States where States’ rights are truly considered a valid principle.

II

    There are two types of States’ righters: the true States’ righter and the false States’ righter. The true States’ righter advocates States’ rights regardless of the issue. He is a strict constitutionalist and believes that the federal government has only those powers expressly delegated to it and no more. All other governmental powers have been reserved by the States. That is, the States have retained all powers that they have not delegated to the federal government and that is not denied them by the compact creating the federal government. Before the false States’ righter advocates States’ rights, he first determines the position that the State has taken vis-a-vis the federal government. If a State favors his position while the federal government opposes it, the false States’ righter advocates States’ rights. On the other hand, if the federal government favors his position while a State opposes it, the false States’ righter opposes States’ rights and advocates consolidation. The following example of gun control illustrates the difference between the true and false States’ righter. 

    Excluding those who are indifferent, people tend to take one of two positions on gun control. One group believes that the ownership of guns should be moderately to severely restricted and regulated. The other group believes that there should be little or no restrictions or regulations on gun ownership. Because extremely few true States’ righters fall in the former group, only the latter group is considered. 

    The true States’ righter believes that the Second Amendment, “the right to bear arms” amendment, applies only to the federal government. Contrary to what the consolidationists and false States’ righters claim, it does not apply to the States. For the true States’ righter, whether gun ownership is restricted or not is a State issue. Gun ownership is protected from restriction by a State with the State’s constitution and not with the federal constitution. Therefore, even though nearly all true States’ righters favor little or no restriction on gun ownership, they would not consider appealing to the federal government when a State restricts gun ownership. That is an issue to be resolved by the State. The federal government, including the federal courts, has no say in the matter. 

    The false States’ righter views the matter differently. If a State restricts gun ownership, he has no inhibitions about pursuing the matter in federal court. The false States’ righter typically argues that the Second Amendment applies to the States through the Fourteenth Amendment. Therefore, a State may not restrict gun ownership. (The true States’ righter does not recognize the Fourteenth Amendment for several reasons. Foremost, it was adopted illegally and under the force of arms. Also, it is extremely anti-States’ rights because it changes the locus of citizenship from the States to the Union.) However, if the federal government restricts ownership, the false States’ righter has no inhibitions against turning to the States and persuading them to protest this infringement upon liberty. The more radical ones may even advocate interposition and nullification. (The true States’ righter would join the false States’ righter in this endeavor not only because he opposes the restriction of gun ownership but more importantly because he opposes usurpation of power by the federal government.) For the false States’ righter, the position taken by the federal government and States determines whether he advocates States’ rights or consolidation.

    The true States’ righter consistently advocates States’ rights. He believes that all governmental powers not expressly delegated to the federal government by the States in the federal constitution belong to the States unless the federal constitution specifically denies the States such power. Even where a power has been expressly delegated to the federal government, he believes that the States have concurrent power, provided the exercise of that power is not contrary to the federal constitution or federal law. However, if a particular power has been expressly delegated to the federal government and denied to the States, he will side with the federal government.
 
    On the other hand, the position taken by the false States’ righter depends on the issue in question. If a State supports his position while the federal government opposes it, he favors States’ rights. If the federal government supports his position while the State opposes it, he opposes States’ rights. If both the States and the federal government oppose his position, he usually favors consolidation in preference to States’ rights. It is much easier to persuade one government than many.
 
     In summary, there are two types of States’ righter: the true States’ righter and the false States’ righter. The true States’ righter support States’ rights regardless of the issue in question. The false States’ righter supports States’ rights only when the State supports his view of the issue in question; otherwise, he supports consolidation. 

    (The preceding discussion can be extended to describe the principle of States' rights within a State merely by substituting “State government” for “federal government” and “family government,” “church government,” etc. for “the State.”)

Copyright © 1987 by Thomas Coley Allen.

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Calhoun and Concurrent Majority

Calhoun and Concurrent Majority

Thomas Allen

    John C. Calhoun is perhaps the greatest and most original political thinker ever produced by the Western Hemisphere. Born in South Carolina, Calhoun was more of a realist than an idealist. He tended to set class economics above abstract humanitarianism. Caring little for egalitarian doctrine, he objected strongly to the assertion that all men were created free and equal. Such an assertion was contrary to all biological and social facts. He set forth the principle of concurrent majority, which is perhaps the most original political principle ever espoused by an American. 

     In 1828, he broke away from Henry Clay’s nationalism of federal intervention and consolidation to become one of the greatest minds, perhaps the greatest, that the South has ever produced. The issue was tariffs. Tariffs were protecting the industrial North from foreign competition at the expense of the agricultural South. As a result of the tariffs, the North was prospering while the South was in a depression. 

    Calhoun realized that the United States were drifting towards consolidation and an uncritical faith in numerical majorities. Under such conditions, the minority position of the South could not be protected. Contrary to what most Americans believed then, and unfortunately still believe, the principle of political democracy offers no safeguard against the dangers of arbitrary government. When unrestrained by constitutional limitations on its will, numerical democracy is the enemy of political justice. The measure of protection given to the weakest citizen is the critical test of every government. Judged by this test, a democratic state becomes little more than a tyrant as power is centralized into the hands of a few. The majority inevitably becomes irresponsible in its unrestraint. The more power it wields, the more vicious its disregard for minority opinion becomes. To Calhoun, the perennial problem of constitutional government was how to restrain it by constitutional checks to keep it just. With this point of view, Calhoun addressed himself to the problem of restraining the majority and protecting the rights of the minority.
 
    Calhoun built his political principle upon the meshing of the Jeffersonian Republican doctrine of States’ rights and the Montesquieuian Federalist doctrine of static government resulting from exacting balanced powers. He believed that both doctrines were sound in their major premises, but they had strayed in certain important deductions. Experience had taught him that consolidation was extremely dangerous and that the existing checks on the federal government were insufficient. The Jeffersonians were mistaken in their belief that the democratic majority necessarily served the cause of political justice. The Federalists were mistaken in their belief that the division of power provided in the U.S. Constitution was adequate to prevent arbitrary government. His solution to these mistakes was to provide an additional check. This check was the right of individual States to veto acts of the federal government. The veto power was the hallmark of constitutional government. Thus, he brought together two basic philosophies upon which the United States had been founded and strengthened them with the concept of concurrent majority. 

    Confusion on the interpretation of “the people” and “government” has done immeasurable harm to liberty and has brought untold oppression. In a republic, sovereignty is intrinsic in the people. All authority is delegated. The government is merely an agent with strictly defined fiduciary powers. All its acts are subject to review by the principal. Depending on the constitutional system of government, the review may be immediate and full or removed and limited. Where most political philosophers fall short is that they tend to treat “the people” as a homogenous body with a common interest. Calhoun realized that this was not the case. “The people” are an aggregation of individuals, groups, classes, and factions with diverse and often antagonistic interests. Most political philosophers also error in treating government as a sacred entity, the inheritor of sovereignty, which cannot be criticized without committing a crime against the sovereign. Again Calhoun realized that this was not the case. In a republic, officials are invested with temporary power, and these officials are guided by motives common to all men. Unlike many political thinkers, Calhoun understood the meaning of “the people” and “government.”

    To Calhoun, the common fallacy of treating “the people” as a homogenous body with a common interest was an egregious danger that obscured the economic basis of society and confused the whole problem of government. The Jeffersonians had contributed to this problem by assuming a clear division between ruler and subject and by appealing to a common democracy against the aristocracy in their struggle against consolidation. Although the Federalists understood the economic origins of political power and the economic ends served by the political state, they concealed their designs by deceptive appeals to patriotism and made their knowledge serve their own interests. Calhoun knew that “the people” was a political fiction. Society is composed of a multitude of individuals, each with his own interest. They can never be merged into a united whole no matter how they are grouped or classified. To assume that government rests on the will of the people or represents the people is dangerous and fallacious. The political state is partisan to those who administer it. The diversity of the people and the errancy of treating them as one whole Calhoun acknowledged. This acknowledgment led him to devise his principle of concurrent majority, which compels the various segments and factions of the community to cooperate while preventing a majority of them from combining to oppress or exploit the rest of the community. 

    Just as Calhoun’s understanding of “the people” exceeds that of most political thinkers, so does his understanding of “government.” He knew that power corrupts and that governmental officials often become drunk with power. Once safely in office, these agents begin assuming all the prerogatives of the principal and cloth their acts with the sanctity of sovereignty. With the power of taxation, these agents benefit their friends and favorites while penalizing and exploiting their enemies and the politically weak. Without an adequate defense to protect themselves, the weaker interests suffer legal exploitation and oppression. The popular government of the Jeffersonian Republicans changed only the outward form of the selfish struggle for power. It substituted party rule for class rule. The more democratic government becomes, the more callous and vicious majority rule becomes. All systems of checks and balances that fail to obstruct sufficiently this innate tendency of party rule prove to be unsuccessful. Separation of powers among executive, legislature, and judiciary, as the Montesquieuian Federalist had done, is not enough. The reigning majority can come to control all three and, thus entrenched, oppress the minority. Knowing how political leaders and political parties behave once they acquire power, Calhoun offered the minority, with his doctrine of concurrent majority, a way to thwart this behavior. 

    Calhoun regarded freedom as the ultimate goal and most precious aspect of civilization. By freedom he did not merely mean legal restraints on tyranny, such as habeas corpus, he meant freedom from legal exploitation and statutory dictatorship. In his words, “The abuse of delegated power, and the tyranny of the stronger over the weaker interests, are the two dangers, and the only two to be guarded against; and if this be done effectually, liberty must be eternal. Of the two, the latter is the greater and most difficult to resist.” He acknowledged that two powers were necessary to the existence and preservation of a free state. One is the power of the governed to prevent their governors from abusing their authority and to compel them to be faithful to their constituents. This power is attained through suffrage. The other is the power to compel the various factions of the community to be just to one another by requiring them to consult the interests of each other. This power can only be achieved by requiring the concurrence of all the great and distinct interests of the community. With these two powers, freedom can be safeguarded. 

    The method used to implement this second power to preserve liberty and prevent conflict between diverse parts of the community brought forth Calhoun’s great contribution to political science — the principle of concurrent majority. His solution to the preservation of liberty was to superimpose the will of a geographical majority upon the consolidated, indiscriminate majority. His solution collected not only the sense of the majority, but it also considered the various interests of the community. In “A Disquisition on Government,” Calhoun proclaimed,

    It results, from what has been said, that there are two different modes in which the sense of the community may be taken: one, simply, by the right of suffrage, unaided; the other, by the right through a proper organism. Each collects the sense of the majority. But one regards numbers only, and considers the whole community one unit, having but one common interest throughout; and collects the sense of the greater number of the whole, as that of the community. The other, on the contrary, regards interests as well as numbers; — considering the community as made up of different and conflicting interests as far as the action of the government is concerned; and takes the sense of each, through its majority or appropriate organ, and the united sense of all, as the sense of the entire community. The former of these I call the numerical, or absolute majority; and the latter, the concurrent, or constitutional majority.

    Calhoun’s political philosophy is based on the principle that property rules by reason of its inherent power and that political justice is attainable only with a precise system of checks and balances that provides each important group with a veto. He has offered a mechanism by which minorities can protect themselves from oppression and exploitation without having to resort to armed conflict. With his principle of concurrent majority, Calhoun bequeathed his beloved South with a barrier to protect herself from political consolidation, standardization of society, and the universal monetary evaluation of life. Unfortunately for the South, and perhaps the rest of the world as well, this barrier was utterly destroyed in 1865. For the sake of liberty, the time has come to resurrect the lost principle of concurrent majority.

Copyright © 1987 by Thomas Coley Allen.

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