Jefferson and States’ Rights

Jefferson and States’ Rights

Thomas Allen

In Chaining Down Leviathan: The American Dream of Self-Government 1776-1865 (McClellanville, South Carolina: Abbeville Institute Press, 2021), Luigi Marco Bassani discusses Thomas Jefferson’s concept of States’ rights. The following summarizes that discussion.

Jefferson used “State” to designate the people of a State and not its government, which the people (body politic of that State) created. He advocated localism over nationalism; localism is more closely tied to liberty than is nationalism. Therefore, local interest should be superior to the national interest. Further, he supported self-government and elected officials being directly responsible and linked closely to the voters. Thus, he endorsed natural rights, limited government, and popular sovereignty.

Moreover, the government should be restricted to protecting life, liberty, and property and have a laissez-faire approach in economic matters. Consequently, he opposed the concentration and consolidation of power in a single center and, therefore, fervently opposed a strong federal government that decided the limits of its power.

States’ rights were the best and surest way to prevent the consolidation of power in the federal government. After all, the States had created the federal government as their agent to manage their common affairs, such as foreign relations. They did not create it to rule over them and to manage their internal affairs.

For Jefferson, tyranny rose from the concentration of power. States’ rights were the mechanism by which such tyranny could be prevented. Only by strictly construing the Constitution could the States be saved from being subservient to the federal government. Only when a State acting individually and independently could decide if a federal act exceeded the authority delegated to the federal government and could nullify such unconstitutional act within its territorial limits would the liberties and rights of the people be protected.

Jefferson favored a constitution that united the States concerning foreign affairs but kept the States separate and distinct in domestic concerns. Thus, the States were independent in everything within themselves but were united in everything respecting foreign countries. However, he opposed becoming entangled with other countries; therefore, he favored allowing merchants the freedom to manage their trade with foreign countries.

The Kentucky Resolutions, which Jefferson wrote, expressed the core of his concept of federalism, States’ rights, and constitutional doctrine. According to the Kentucky Resolutions, each State had the right to nullify within its own territory any federal act that if found exceeding the powers delegated to the federal government without the need of other States joining it. Thus, the Kentucky Resolutions expounded the political and judicial philosophy of Jefferson’s States’ rights.

Jefferson believed that the States were much better defenders of individual liberties than were federal courts. Consequently, he replaced the doctrine of natural rights as expounded by federal courts with the doctrine of States’ rights, which were more powerful and effective at protecting the liberties of individuals. Therefore, the States should be responsible for guarding the constitutional balance against the consolidation of power in the federal government.

As sovereign powers, the States entered into a compact to create a federal government as their agent, subordinate to the States, to carry out well-defined, limited functions. Since the States were sovereign parties that entered into the constitutional compact, the federal government, their agent, had no authority to expand its power without the agreement of the contracting parties, the States.

Consequently, Jefferson maintained that each State acting individually and independently could decide if an act of the federal government was contrary to the Constitution. If it found such an act unconstitutional, it could nullify that act within its territory.

Although Jefferson adored the Union, he valued the right of local self-government even more. Thus, he insisted that freedom and self-government could not be subordinated to the Union. Like many people before 1861, he contended that the Union was an experiment in liberty and not an end in itself. Moreover, he thought that local self-government and not the Union was the guarantor of the safety and happiness of the people.

Also, Jefferson objected to the notion that the Constitution gave the federal government implied powers as Alexander Hamilton had argued. Furthermore, the Supremacy Clause in the Constitution did not give the federal government absolute supremacy over the States. Not all federal laws are the supreme law of the land. Only those laws enacted pursuant to one of the delegated powers are supreme. Otherwise, State laws are supreme.

To Jefferson, the Union was a true federation with the federal government having a few delegated functions and powers as set out in the Constitution. Only with the consent of the States through the amendment process could it expand its power. He considered federalism as an end in itself with self-governing States being supreme over the federal government. Moreover, he rejected the notion that the Bill of Rights applied to the States and asserted that it only applied to the federal government.

Jefferson also rejected the notion that a federal common law existed. Each State had its own common law system that applied solely within its borders. However, no American common law existed.

He feared that if the federal legal system incorporate common law, Congress could expand its power by revising and integrating the principles of common law. If this were to happen, constitutional limitations on the federal government would vanish. Congress could legislate in all cases whatsoever. If common law were to limit federal legislative activity, then the judiciary would acquire legislative power. If common law became a body of law, the Constitution would cease limiting the powers of the federal government. In any event, the incorporation of American common law into the federal legal system would be disastrous for the liberties of the people and States’ rights. The Constitution and federal common law could not coexist in the American system of government.

Jefferson rejected the notion of the Supreme Court, which was part of the federal government, being the final arbitrator between a State and the federal government. If the Supreme Court were the final arbitrator, then Congress and the President, which were also part of the federal government, were being adjudicated by another part of the federal government, the Supreme Court, and not by the Constitution. If the federal government could force the States to comply with all federal laws whatsoever, whether according to the Constitution or in flagrant violation of it, then federalism would cease to exist except in name only. Consequently, the States were and ought to be the final judges of the constitutionality of federal acts. (Being part of the federal government, federal courts has no incentive to prevent the consolidation of power in the federal government. History has shown that not only do federal courts place little constraint against such consolidation, but they have often led in such consolation.)

Thus, Jefferson maintained that the authority of the Supreme Court to decide in the last resort did not extend to the rights of the States, which were parties to the constitutional compact. The States gave federal judges their delegated trusts. As original parties to the constitutional compact, each individual State was the ultimate judge of whether an act of the federal government was compatible with the Constitution. As a creation of the Constitution, the Supreme Court could not be the ultimate judge.

Since the defeat of the Confederacy, the federal government has been suppressing States’ rights and has almost extinguished them. As a result, liberty has faded and the tyranny that Jefferson feared has happened.

Copyright © 2022 by Thomas Coley Allen.

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The State

The State

Thomas Allen

The state is an abstraction. So, when we speak of the state doing something, we are really speaking of the elite, either as an individual or a group, who controls and acts in the name of the state. Likewise, when we speak of the rights, privileges, and immunities of the state, we are really speaking of the rights, privileges, and immunities of this controlling elite who acts in the name of the state.

Who is this elite that controls the state? Originally, it was a monarch. Now, it is the oligarchs. The oligarchs consist primarily of plutocrats and high-ranking politicians, bureaucrats, and judges. Accordingly, it is more correct to use the terms “oligarch” or “oligarchy” instead of “state.”

Instead of developing spontaneously, the state is a manmade invention — a manmade institution and political entity. It is not a discovery, nor has God preordained it. (In many respects, the state is idolatry because many people worship it and look at it as their savior.)

The state originated in Europe during the seventeenth century following the breakup of the medieval political order. Before the seventeenth century, the state as such did not exist.

Max Weber defines the state as “a relation of men dominating men, a relation supported by means of legitimate (i.e., considered to be legitimate) violence . . . [it] is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” Yoram Barzel defines the state as consisting of “(1) a set of individuals who are subject to a single ultimate third party who uses violence for enforcement and (2) a territory where these individuals reside, demarcated by the reach of the enforcer power.”

An essential attribute of a state is that it possesses a monopoly on the use of force, either legitimately or illegitimately, to impose its will.  Consequently, it must disarm the people. This assertion of a monopoly of the means of violence gives the government’s claim to provide protection more credibility and makes resistance more difficult.

To exercise its violence, the state establishes a monopolistic organization of violence over its territory and centralizes the control of violence. As a result, it increasingly monopolies public life and absorbs all other centers of power. Specifically, it concentrates power. Such concentration of power is necessary for a state to survive.

Moreover, the state represents both a domestic and international political order. It is a sovereign power.

Another essential attribute of a state is that it is territorial. It is the sovereign of a particular geographical area.  That is, it is a legal entity that occupies a definite space. Its authority is contained within this space. However, to achieve this goal, the state has to deny citizens (or more correctly subjects) all other loyalties. Consequently, the state seeks to destroy all intermediate bodies between it and individuals except associations that it approves.

Before the rise of the state, customs regulated conduct and not the law. Tax collection was difficult and sporadic. Men were not drafted for war or labor. With the arrival of the State, law replaced custom (although the law often codified customs), taxes became more collectible, and men were drafted for war. This ability of a state to demand and easily obtain “blood and money” from its subjects distinguishes it from all other political arrangements.

A great advantage of the state to the oligarchs is privileges, immunities, and other benefits that they and their associates receive that are denied to others.

With the insatiable lust for power, the state is the enemy of freedom. Freedom can only be achieved by restricting and containing the state. Historically, federalism has been highly effective in this endeavor as long as the federation lasted.

Sovereignty is another essential attribute of the state. In Europe, according to Bassani, sovereignty “is eminently juridical and implies the idea of an unlimited and illimitable concentration of power at a given center.” (Bassani, pp. 49-50) Consequently, “sovereignty requires potentially unlimited concentration of power in a territory.” (Bassani, p. 50) Thus, the European concept of sovereignty is statism, absolute political power residing in the state.

For Americans before Lincoln’s War, sovereignty meant the supreme legislative authority or the primary power to make laws. It did not imply or require the concentration and centralization of power, which federalism dispersed. For most Americans before Lincoln’s War, sovereignty resided in the States, i.e., sovereignty resided in the people of each State independent of all other States. Therefore, the American concept of sovereignty has an antistatism function.

Sovereignty is indivisible and illimitable. However, a sovereign power can delegate rights. Nevertheless, these delegated rights do not make the body receiving them sovereign because the sovereign that grants them remains the superior will. In Europe, the sovereign is the state, i.e., the oligarchs. In America before Lincoln’s War, it was the people of each individual state separately. After Lincoln’s War, the oligarchs usurped the powers of the people of the States and concentrated them in the federal government and, by that, made those who controlled the federal government, the oligarchs, sovereign.

Reference

Bassani, Luigi Marco. Chaining Down Leviathan: The Ameican Dream of Self-Government 1776–1865. McClellanville, South Carolina: Abbeville Institute Press, 2021.

Copyright © 2022 by Thomas Coley Allen.

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Centralism Versus Decentralism

Centralism Versus Decentralism

Thomas Allen

    Wilhelm Ropke in The Social Framework of the Free Market (1958, translated by Elizabeth Henderson, 1960) compares centralism and decentralism and describes the differences between the two. (Page numbers in parentheses are references to his book.)
    In the American political economy terminology, centralists (whom Ropke calls centrists) promote the Hamiltonian-Lincolnian political economy, which is what the United States have today, and the decentralists (whom Ropke calls decentrists) promote the Jeffersonian-Calhounian political economy. To the centralists, America is an idea, an abstraction. To the decentralists, America is a place, concrete.
    Centralism and decentralism apply to all social, political, and economic aspects of life. In general, they express a great contrast in ideals and views of society. Centralists emphasize the larger community: the state, a puissant central government, the collective, big businesses, central banks, and even the utopian world state. Decentralists emphasize the smaller community: the individual, the family, voluntary associations, small businesses, and local and State or provincial governments. Hierarchical churches like the Catholic Church where religious power is concentrated falls under centralism. Churches like the Baptists where religious power is dispersed falls under decentralism. Thus, centralists favor the consolidation and the concentration of political and economic power. Decentralists favor the dispersion and deconcentration of political and economic power.
    The following list compares centralism and decentralism:
Government
    Centralists believe, favor, and prefer:
        –    a strong central government with the globalists preferring a puissant global government.
        –    people dependent on the government; thus, welfare programs and national health care.

    Decentralists believe, favor, and prefer:
        –    federalism and local government.
        –    people not dependent on the government.

Economy
    Centralists believe, favor, and prefer:
        –    macroeconomics.
        –    large-scale industry; technical and organizational rationality.
        –    centralized planning enforced by the government.
        –    large-scale governmental intervention in the economy, collectivist economy, socialism, and monopoly.
        –    dependent wage earners; workers in a subordinated and dependent relation to centers of decision.
        –    the vertical, close, and personal relation of subordination and authority of big business and socialized industry, i.e., vertical, organizational dependence.
        –    a market that depends on the boss.
        –    people occupying positions that are above and below each other; subordination of people.
        –    trade unions, which subordinate workers to union bosses, instead of independent workers.

    Decentralists believe, favor, and prefer:
        –    microeconomics.
        –    the peasantry, crafts, middle class, and small firms.
        –    a wide distribution of private property.
        –    a free market, free enterprise economy.
        –    an economy planned by the markets, competition, and free prices.
        –    decentralization of economic decisions among millions of separate producers and consumers as the indispensable condition of freedom, justice, and well-being.
        –    independence of workers.
        –    independent market parties where the buyers and sellers are horizontal and loose if not impersonal, i.e., horizontal market dependence.
        –    dependence upon the client or the supplier through a market that is wide enough to do away with rigid personal relationships.
        –    people occupying positions side by side with each other.

Society
    Centralists believe, favor, and prefer:
        –    huge associations, giant cities, and urbanized areas.
        –    social rationalism, i.e., the individual is small and eventually dwindles to a statistical figure, a building brick, a mathematical magnitude encased in equations, something that can be "refashioned."
        –    optimism about the success of his constructions and refashioning.
        –    equality and uniformity.
        –    mobility.
        –    socialization of education.
        –    the welfare state, especially one that extends well beyond the truly needed.

    Decentralists believe, favor and prefer:
        –    the lovers of nature and of the human scale.
        –    rural areas and small towns.
        –    thinking and acting in terms of human beings and knowing and respecting history.
        –    skepticism or pessimism thus basing his arguments realistically and unsentimentally on human nature.
        –    inequality, diversity, multiformity, and social articulation.
        –    stability.
        –    stratification of society with respect for natural developments, a modicum of variety and of horizontal and vertical social articulation, family traditions, personal inclinations, and inherited wealth.
        –    men having the happy feeling of being in the place where they belong.
        –    variety and independence in every sphere, but not particularism or parochialism.
        –    personal responsibility and private charities to aid the needy.

Philosophy
    Centralists believe, favor, and prefer:
        –    doctrinaires, dogma, doctrines, and ideologies.
        –    man centered.
        –    man can perfect man.

    Decentralists believe, favor and prefer:
        –    established principles: a hierarchy of norms and values established by reason and sober reflection instead of by passions and feelings.
        –    ultimate and absolute convictions that require no proof because it is absurd not to believe in them.
        –    God centered.
        –    only God can perfect man.

    Ropke does not specifically discuss the armed forces under centralism and decentralism. Centralists favor a large standing army and a navy and air force large enough to project power regionally and, if resources allow, even globally. However, centralists prefer a disarmed citizenry (a heavily armed citizenry can thwart the centralists’ plans and their lust for power). Conversely, decentralists prefer a heavily armed citizenry and a small armed force. The armed force should be sufficient to defend the country from invasions, but not large enough for offensive wars or foreign adventures.
    Decentralism is not particularism or parochialism with “a narrow-mindedness which can’t see the forest for the trees” (p. 233). According to Ropke, a decentralist is a convinced universalist who “keep[s] his eye on a larger community which is all the more genuine for being structured and articulated” (p. 233). However, God is his center, “and this is why he refuses to accept human centers” (p. 233). The decentralists “should cultivate a universal approach to all intellectual, political, and economic matters and reject narrow views and actions and, above all, intellectual, political, and economic regionalism and nationalism; on the other hand, we should prize variety and independence at all levels and in all spheres, on the basis of the common patrimony of mankind, which is beyond all levels and spheres” (p. 234).
    The centralist is a moralist. Ropke describes the moralism of the central as follows:

[The centralist is] a moralist of the cheap rhetorical kind, who misuses big words, such as freedom, justice, rights of man, or others, to the point of empty phraseology, who poses as a paragon of virtues and stoops to use his moralism as a political weapon and to represent his more reserved adversary as morally inferior. Since, again, he looks at things from on high, well above the reality of individual people, his moralism is of an abstract, intellectual kind. It enables him to feel morally superior to others for the simple reason that he stakes his moral claims so high and makes demands on human nature without considering either the concrete conditions or the possible consequences of the fulfillment of those demands. He does not seem capable of imagining that others may not be lesser men because they make things less easy for themselves and do take account of the complications and difficulties of a practical and concrete code of ethics within which it is not unusual to will the good and work the bad. The “left” moralist all too often reaches the point where his big words of love and freedom and justice serve as a cover for the exact opposite. The moralist, with his lofty admonitions, becomes an intolerant hater and envier, the theoretical pacifist an imperialist when it comes to the practical test, and the advocate of abstract social justice an ambitious place-hunter. These moralists are a world apart from the decentrists’ attitude . . . that man does not primarily exist for the sake of human society but for his own sake, “and if each one of us exists in the best possible manner for his own sake, he does so for society as well.” . . . The centrist’s moral ideal frequently enough amounts to a desire to make the world into a place where . . . everyone is nursing his neighbor, which presupposes a centralized compulsory organization (p. 230).

(His description of the morals of the centralist is essentially the description of the morals of the Yankee and the Puritan.)
    Ropke strongly opposes the concept of equality and believes that trying to achieve it and even the chimera of “equality of opportunity” results in disaster. About trying to achieve equality of opportunity via socialization of education, he writes:

[I]f equality of opportunity is to be achieved by socializing education, envy and resentment will only be acerbated. If everybody has the same chances of advancement, those left behind will lose the face-saving and acceptable excuse of social injustice and lowly birth. The weakness of mind or character of the overwhelming majority of average or below-average people will be harshly revealed as the reason for failure, and it would be a poor observer of the human soul who thought that this revelation would not prove poisonous. No more murderous attack on the sum total of human happiness can be imagined than this kind of equality of opportunity, for, given the aristocratic distribution of the higher gifts of mind and character among a few only, such equality will benefit a small minority and make the majority all the unhappier (p. 223).

(Perhaps, this explains the problem that the country is having with Blacks, especially those involved in Black Lives Matters, Antifa, Social Justice, and other similar groups. Not only have Blacks been given “equal opportunity,” laws have been written and are enforced that give Blacks more than equal opportunity. Blacks are given a legal and social advantage over Whites. Yet they still fall behind, not because of any discrimination, but because of their innate, genetic, inabilities.)
    Unfortunately for mankind, centralization is much easier than decentralization. Moreover, expanding the powers of the government is much easier than contracting them. The centralist’s “path is bound to lead to regions where the air of freedom and humanity becomes thinner and thinner, until we end up on the icy peaks of totalitarianism, from which nations can hardly hope to escape without a fall. The trouble is that once one takes this road, it becomes increasingly difficult to turn back” (p. 234).
    A major danger of centralism is that it encounters no checks on itself. Its obsessions become uninhibited. Moreover, it comes to know no limits. Centralism leads to loss of freedom, humanity, and the health of society. (Examples are Germany under the rule of the national socialists and Russia, China, North Korea, and other countries under the rule of the communists.)
    Ropke quotes John Stuart Mill’s description of centralism:

If the roads, the railways, the banks, the insurance offices, the great joint-stock companies, the universities, and the public charities, were all of them branches of the government; if, in addition, the municipal corporations and local boards, with all that now devolves on them, became departments of the central administration; if the employes of all these different enterprises were appointed and paid by the government, and looked to the government for every rise in life; not all the freedom of the press and popular constitution of the legislature would make this or any other country free otherwise than in name. And the evil would be greater, the more efficiently and scientifically the administrative machinery was constructed (p. 235).

    One of the dangers of centralism is that many centralists do not want to be centralist and many do not know that they are centralists. They are the classical liberals (as opposed to neo-liberals and progressives) or conservatives who reject federalism, the anti-collectivists who flirt with monopolies or government intervention in the economy, and humanist and others who support the economic integration of countries. (To Ropke’s list, can be added free-market economists like the Friedmanites who support centralized banking and a managed monetary system in lieu of the classical gold standard and decentralized banking. Also, classical liberals, conservatives, and libertarians who are racial nihilists can be included in the list.)
    Ropke comments on the work environment under centralization:

People used to occupy positions side by side with each other, but now they are above and below each other, and the relation is charged with the constant tension of close personal contact within a limited, fixed group. With the diminution of individual independence, this is becoming the fate of the masses, and we all know the strain it puts on human relations. Intrigues, place-hunting, informing, ill will, bootlicking, envy, jealousy, and all the other poisons of close contact spread like the plague in all large organizations and companies, as experience has shown again and again. Neurotics are in a position to make life hell for hundreds and thousands of people, and . . . there is a more than even chance that it will be precisely neurotics who get to the top and into a dominating position, because of their assertiveness and officiousness (p. 236-237).

(As power becomes more concentrated in the central government, ever more neurotics are drawn to the central government, especially in management positions.)
    About centralized planning and collectivism, Ropke writes:

[I]t is one of the most damning things to be held against collectivism in any shape or form that, with the exception only of the few who hold the power to plan and direct, it presses men inescapably into vertical and personal relations of subordination and so robs them of freedom. If the socialists, incorrigible centrists as they are, demand such an economic order in the name of freedom, they afford a most depressing proof of the aberrations of which man is capable when he is blinded by political passion (pp. 237-238).

    Ropke makes three recommendations to reverse the centralization of the economy:

First, we should do everything we can to brake or even reverse the process of dwindling independence whenever and wherever this is possible without real damage to economic rationality. Secondly, we should do everything we can to mitigate the rigidity of vertical subordination as much as the structure of productive organization and the nature of the market economy permit. Thirdly, we should do everything we can to strengthen the counterweights in fields other than labor dependence, the most important of these counterweights being private property (p. 241).

Moreover, decentralists should not look to government to enforce these recommendations. Instead, they must support “all the forces, whatever they be, which counteract concentration” (p. 241). To carry out these recommendations requires “[p]ainstaking research . . . to discover how, ultimately, the government itself, by means of its laws, its tax system, and its economic and social policies, continuously and injudiciously weights the scales in favor of industrial concentration and makes things difficult for small and medium firms and all others who aspire to independence” (p. 241).
    Although centralists preach the virtue of diversity, they are the destroyers of true diversity. They seek to reduce all to a uniform mongrelized oneness — one hybrid race, one culture, one religion, one government, one economy, etc. On the other hand, decentralists seek to preserve true diversity. They want to preserve the various races, cultures, and nations (people) and countries (territories) with many free and independent governments and economies (but not autarky or protectionism as that requires centralization), etc.
    Today centralism appears as:
    –    globalization with a one-world government (the United Nations and its various organizations) and one-world religion (ecumenism).
    –    the European Union and climate change treaties as steps toward world government.
    –    war on Confederate monuments to destroy history and diversity.
    –    homogenization of the male and female sexes into meaninglessness by promoting feminism to make women men, effemination of men to make them women, homosexuality, transgenderism, etc. to destroy the family.
    –    political correctness to destroy freedom of speech and thought.
    –    multiculturalism and multiracialism with large-scale, uncontrolled immigration into Europe, Canada, and the United States to destroy their race and culture as the White race and Western Civilization are the greatest impediments to global consolidation — hence, racial and cultural amalgamation.
    However, decentralization is beginning to return as evidenced by:
    –    secession movements, such as the breakup of the Soviet Union and Yugoslavia and numerous secession movements in Europe and the United States.
    –    nullification, such as California declaring itself a sanctuary State and thus defying federal law.
    –    the collapse of imperialism, at least in its more overt form.
    –    the growing populist-nationalist movements in the Western world, that is, defensive nationalism, which seeks to preserve race, culture, nation (the people), and country (the territory), and not aggressive nationalism, which is imperialism.
    For more than 150 years the Hamiltonian-Lincolnian political economy has dominated the United States, and the U.S. government has exploded in size and has become ever more powerful. With the election of Donald Trump as President, centralists are being forced on the defense. Many supporters of Trump are decentralists of the populist-nationalist movement. Even heretofore centralists are becoming decentralists as they defy the U.S. government with nullification and join decentralists with talk of secession.

Copyright © 2017 by Thomas Coley Allen.

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