American federalism: What Changed between 1787 and 2004?
Commentary by Steve Scroggins
With Thanksgiving coming this week, I was looking for some relevant
links to place on the GHC website, such as George Washington’s first
Thanksgiving Proclamation. I found a website containing "the
Papers of George Washington."
The introduction gave background on the first Thanksgiving Proclamation.
What struck me as noteworthy in the introduction was the deference
with which President Washington treated the governors of the several
States. This respect is not surprising for those of us who are
familiar with early American government from the end of the Revolution
(1783) to the Articles of Confederation to the drafting and ratification
of the U.S. Constitution.
For everyone steeped in the propaganda and folk lore of the American
Empire, and relatively unfamiliar with true American history,
this would come as somewhat of a shock. Can you imagine the President
of the United States asking State governors for anything?
It was universally understood by the Framers—-and the State
governments that ratified the Constitution—-that the States
were the supreme governments and that the federal government was
the subserviant, limited agent of the States, authorized to carry
out only the specific and enumerated powers delegated in the Constitution.
If the President wanted to Proclaim something (especially something
not specifically authorized in the Constitution), he had to ask
the Governors or legislatures of the States for their approval
Naturally, it was a Southern member of Congress who took exception
to Washington’s request. Everyone had great respect for Washington
(a Southerner), but I suspect that this Southern Representative
was just being a stickler for the roles of government and was
wary of any precedents or power-grabs by the federal executive.
The reasoning for the Congressman’s concern about the Proclamation,
as I interpreted it, was a vigilant guarding of the turf (States
rights). By design, the distribution of powers between the States
and the federal government and between the respective branches
of those governments (executive, legislative, judicial) was intended
to provide "checks and balances" as each branch and
each level of government jealously guarded its own turf to assure
that others did not usurp their authorized and reserved powers.
The conflict between the centralizers and the decentralizers
was apparent from the beginning. The exteme Federalists (e.g.,
Alexander Hamilton et. al.) wanted a National government with
the States as merely political subdivisions of the central government.
The moderate Federalists (e.g., Washington, Madison, et. al.)
wanted a hybrid government with a central (federal) government
strictly limited to specific and enumerated powers. The anti-federalists
(Thomas Jefferson, George Mason, Patrick Henry, et. al.) wanted
no central government at all and preferred to stay with the Articles
Once the Constitutional Convention was complete in 1787, the
Constitution had to be "sold" to the States and their
delegates, that is each State government held its own convention
to determine whether or not to ratify the Constitution and join
the new union. Nine States was the specified minimum for the Constitution
to take effect.
The anti-federalists, who justifiably feared a central government
(history proves their fears wise), began publishing letters criticizing
the dangers of the Constitution (namely corruption and usurpation
of unauthorized powers ultimately leading to lost liberty) under
pseudonyms such as Cato, Brutus, and Cincinnatus. The Federalist
Papers are a collection of rebuttal letters written to defend
and promote ratification of the Constitution. They were written
by James Madison, John Jay and Alexander Hamilton under the pseudonym
"The powers delegated by the proposed Constitution to the
federal government are few and defined. Those which are to remain
in the State governments are numerous and indefinite. The former
will be exercised principally on external objects, as war, peace,
negotiation and foreign commerce. … The powers reserved to the
several States will extend to all the objects which in the ordinary
course of affairs, concern the lives and liberties, and properties
of the people, and the internal order, improvement and prosperity
of the State." –James Madison, author of the Constitution,
in Federalist Paper No. 45.
The author of the Constitution (Madison) was very careful not
to use the word "national" or "nation." It
was a confederation of sovereign, free and independent States
voluntarily banding together for their mutual benefit. Each State
had the option to join or not join. And when problems emerged
that outweighed the benefits, it was universally understood that
the Sovereign and Independent States could leave at will. In fact,
several states included specific pre-conditions to that effect
in their ratification documents.
"It is not by the consolidation, or concentration, of powers,
but by their distribution that good government is effected."
"The consolidation of the states into one vast republic,
sure to be aggressive abroad and despotic at home, will be the
certain precursor of that ruin which has overwhelmed all those
that have preceded it." –General Robert E. Lee, in an 1866
letter to Lord Acton.
The conflict between the federal government and the State governments
has continued throughout American history and as long as some
of us remember how it was in the beginning, that is, what the
Framers intended, the conflict will continue. As Confederate President
Jefferson Davis so aptly said, "The principle, [states rights]
for which we contended is bound to reassert itself, though it
may be at another time and in another form."
The American Revolution has been characterized as primarily a
"tax revolt," (remember the Boston Tea party) though
one must agree that there was another more important principle.
The "great Experiment" was begun to see whether people
can really govern themselves. As the Declaration of Independence
made clear, Americans had a long, long list of grievances against
Great Britain’s King George which just happened to include "taxation
without representation." Arguably, the most important principle
was that "governments derive their just powers from the consent
of the governed."
The second American Revolution, known most commonly as an oxymoron,
"the Civil War," has other more accurate names including
the "War Between the States," the "War for Southern
Independence," the "war to Prevent Southern Independence,"
the "War of Northern Aggression" and "Lincoln’s
War." I’d like to add another suggestion: "The War to
Preserve Federal Revenues."
Popular myth (propaganda) holds that this war was about slavery,
but no substantial review of the facts will support that proposition.
Lew Rockwell, in his essay, Genesis of the Civil War, points out
that Lincoln promised NOT to interfere with slavery…but he also
promised to enforce the tariff laws. Each State’s secession ordinance
was in effect a Declaration of Independence.
Like the first Revolution, the war could be characterized as
a "tax revolt" or "separation to avoid unfair taxation,"
but also like the Revolution, it was a War to defend the right
of the people to govern themselves, to defend the principle of
"the consent of the governed," and it was simply self-defense
against an illegal and immoral invasion. Note that Virginia didn’t
secede until Lincoln called for 75,000 volunteers to invade the
South. Without Lincoln’s ordered invasion there would have been
Author Thomas DiLorenzo and others have characterized the ‘War
to Prevent Southern Independence’ as a victory of the Centralizers
or "Nationalists." Since that war, the republic with
divided sovereignty our Founders left us has been turned inside
out. The relative roles of the State governments and the federal
government have been reversed. The federal government is now the
supreme government and the states are mere political subdivisions
of the national empire. The Constitution is routinely ignored
and the vast majority of federal agencies and programs are not
authorized by the Constitution. The States’ effective ability
to check or oppose unauthorized power-grabs ended in 1865.
Since the elections of 2004, there has been a lot of squawking
about "blue state secession." The hypocrisy embodied
in such proposals is discussed in another column. There are some
"legal scholars" who still argue that secession is not
legal. I gather that many law schools today foist this ridiculous
assertion on their students. For example, a Boston paralegal named
Russ Stein, in a Lew Rockwell commentary entitled The Califoria
Revolution Begins, suggests that secession is illegal. Stein’s
commentary nevertheless suggests that Jefferson Davis was right,
the issue has reasserted itself in another form.
Not being a lawyer, and therefore untrained in how to read meaning
from between the lines or "emanating from the prenumbras,"
I simply read the text and I see that secession is not prohibited
by the U.S. Constitution nor is it even mentioned. I see in the
Ninth and Tenth Amendments to the Constitution that powers not
specifically delegated to the federal government are reserved
to the People or the States. I see from the prevailing debate
as documented in the Federalist Papers and the Anti-federalist
papers that the consensus was that the States "are, and of
Right ought to be, free and independent States" (per the
Declaration) and therefore, those States do not relinquish their
sovereignty by ratifying the Constitution. Finally, I see in the
Declaration of Independence the overriding principle that "governments
derive their just powers from the consent of the governed."
Taken altogether, it’s clear that States do have the right to
The key question is, will the federal government allow them (the
Blue States or any others) to leave peacefully this time?
In 1794, the Whiskey Rebellion erupted and folks in Pennsylvania
and elsewhere (southern states) refused to collect and pay the
federal excise tax on alcohol. President Washington personally
led 13,000 militia troops into the western Pennsylvania frontier
as a show of force. "Yes, you will pay the taxes." Treasury
Secretary Alexander Hamilton noted that the tax was being evaded
and unpaid in a number of Southern states, too. But Hamilton did
not recommend enforcement (a show of force) in those states. This
is because secession and rebellion were very REAL threats in those
days and the federal government didn’t have the power to fully
enforce its revenue laws THEN.
If Pennsylvania had rapidly held a convention and repealed its
ratification (seceded), would Washington have led troops to enforce
the federal tax collection? Of course, I can only speculate, but
I strongly believe that he would not have done so…and he would
have had difficulty finding sufficient militia to carry out the
conquest, even if he were inclined to try it. The Federalist Papers
(#46 below) suggest that the States would not have tolerated such
"…But ambitious encroachments of the federal government,
on the authority of the State governments, would not excite the
opposition of a single State, or of a few States only. They would
be signals of general alarm. Every government would espouse the
common cause. A correspondence would be opened. Plans of resistance
would be concerted. One spirit would animate and conduct the whole.
The same combinations, in short, would result from an apprehension
of the federal, as was produced by the dread of a foreign, yoke;
and unless the projected innovations should be voluntarily renounced,
the same appeal to a trial of force would be made in the one case
as was made in the other. But what degree of madness could ever
drive the federal government to such an extremity?" –James
Madison, from Federalist Paper No. 46
In late 1860, Southern states began seceding and accordingly,
they discontinued the collection and payment of federal tariffs
(considered null and void in their jurisdiction). Lincoln’s language
suggests that he was primarily concerned with "preserving
the union" but it’s obvious that his real concern was preserving
the federal revenues (without which centralization of power is
impossible). Hence, my new term for the War, "the War to
Preserve Federal Revenues."
Numerous editorials in northern newspapers document that lost
tax revenues and fear of competition (lost shipping business)
were the primary reasons to oppose the independence of the South.
Northern Newspaper Editorials
The predicament in which both the Government and the commerce
of the country are placed, through the non-enforcement of our
revenue laws, is now thoroughly understood the world over….If
the manufacturer at Manchester [England] can send his goods into
the Western States through New Orleans at less cost than through
New York, he is a fool for not availing himself of his advantage…If
the importations of the counrty are made through Southern ports,
its exports will go through the same channel. The produce of the
West, instead of coming to our own port by millions of tons, to
be transported abroad by the same ships through which we received
our importations, will seek other routes and other outlets. With
the lost of our foreign trade, what is to become of our public
works, conducted at the cost of many hundred millions of dollars,
to turn into our harbor the products of the interior? They share
in the common ruin. So do our manufacturers…Once at New Orleans,
goods may be distributed over the whole country duty-free. The
process is perfectly simple… The commercial bearing of the question
has acted upon the North…We now see clearly whither we are tending,
and the policy we must adopt. With us it is no longer an abstract
question—one of Constitutional construction, or of the reserved
or delegated powers of the State or Federal government, but of
material existence and moral position both at home and abroad…..We
were divided and confused till our pockets were touched."
—New York Times March 30, 1861
The Southern Confederacy will not employ our ships or buy our
goods. What is our shipping without it? Literally nothing….It
is very clear that the South gains by this process, and we lose.
No—we MUST NOT "let the South go." —-Union Democrat
, Manchester, NH, February 19, 1861
From a story entitled: "What shall be done for a revenue?"
That either revenue from duties must be collected in the ports
of the rebel states, or the ports must be closed to importations
from abroad….If neither of these things be done, our revenue
laws are substantially repealed; the sources which supply our
treasury will be dried up; we shall have no money to carry on
the government; the nation will become bankrupt before the next
crop of corn is ripe…..Allow rail road iron to be entered at
Savannah with the low duty of ten per cent, which is all that
the Southern Confederacy think of laying on imported goods, and
not an ounce more would be imported at New York; the railroads
would be supplied from the southern ports." —New York Evening
Post March 12, 1861, recorded in Northern Editorials on Secession,
Howard C. Perkins, ed., 1965, pp. 598-599.
Many early editorials, such as the one below supported the right
of Southern states to secede…but upon reflection (above), their
wallets were more important than their consciences (or the rights
of others) and the war fever went into high gear once Lincoln
provoked Charleston into firing on federal ships attempting to
resupply and reinforce the garrison at Fort Sumter.
"If the Declaration of Independence justified the secession
of 3,000,000 colonists in 1776, I do not see why the Constitution
ratified by the same men should not justify the secession of 5,000,000
of the Southerners from the Federal Union in 1861…"
"We have repeatedly said, and we once more insist that the
great principle embodied by Jefferson in the Declaration of Independence
that government derives its power from the consent of the governed
is sound and just, then if the Cotton States, the Gulf States
or any other States choose to form an independent nation they
have a clear right to do it…"
"The right to secede may be a revolutionary one, but it
exists nevertheless; and we do not see how one party can have
a right to do what another party has a right to prevent. We must
ever resist the asserted right of any State to remain in the Union
and nullify or defy the laws thereof; to withdraw from the Union
is another matter. And when a section of our Union resolves to
go out, we shall resist any coercive acts to keep it in. We hope
never to live in a Republic where one section is pinned to the
other section by bayonets ." –Horace Greeley, New York Tribune
[ full editorial 12/17/1860 ]
We all know what happened, Lincoln ordered troops to invade the
Southern states and destroyed the Constitution as left us by the
Framers. The core idea of this commentary was to ask the question,
"What changed between 1787 and 1860?" The following
excerpt from James Perloff’s "Yankee Apology" puts it
In 1788, the Massachusetts state convention ratified entry into
the Union by a vote of just 187 to 168. Let us suppose that, a
couple of years later, a second vote has rescinded the first,
and Massachusetts respectfully announced: “Upon further
consideration, we have decided that belonging to the Union is
not in the state’s best interest.“ I wonder if anyone
can imagine George Washington issuing the following proclamation:
“ It has come to my attention that Massachusetts intends
to depart the Union. I declare Massachusetts in rebellion! I am
requesting the Governors of the states to muster armies which
are to proceed to Massachusetts and invade it. I am dispatching
federal warships to blockade Boston Harbor. Upon capture, the
city is to be burned to the ground. Federal commanders shall torch
other Massachusetts cities and towns as they see fit.
“I, George Washington, do further declare, that because
the people of Massachusetts have perpetrated this brazen treason,
all their rights are forthwith revoked. Of course, if any Massachusetts
resident disavows his state’s dastardly decision, and swears
an oath of loyalty to the federal government, his rights shall
be restored. Such cases excepted, federal soldiers should feel
free to loot any Massachusetts home. Crops not seized for army
provisions should be destroyed without regards to the needs of
the rebels and their families. After all, war is hell.
“And to citizens of other states, take warning! Consorting
with the Massachusetts rebels will not be tolerated. It has come
to my attention, in fact, that certain leaders and legislators
in New Hampshire and Connecticut have expressed sympathy for their
cause ! I am ordering federal troops to round up these “border
state “ turncoats. They will [be] jailed without hearings.
I hereby revoke the right of habeas corpus just accorded under
the Constitution. In times as these, suspicion alone shall be
suitable cause for imprisonment….”
No one believes Washington would have issued such a proclamation.
And if he had, he would have swung from a tree. True, Lincoln
did not state things so bluntly, but the foregoing accurately
reflects Yankee policy. What had changed between 1789 and 1861
to warrant such a response? –James Perloff, article in Southern
Partisan, 2nd Quarter 1997 [ Full Article ]
Mr. Perloff is correct, Washington would NOT have issued the Proclamation
above to declare war on seceding states. But since Lincoln’s War,
things and attitudes have changed.
Today, we still read Washington’s First Thanksgiving Proclamation
and we agree that it’s completely appropriate for Americans to
pause and thank Almighty God for the blessings we have. We should
also pray, as David Anderson suggests in his commentary on the
First Thanksgiving, that our federal courts—now FAR outside
their original boundaries and limitations of the Constitution—-will
not decide that Thanksgiving is an unconstitutional holiday and
one that governments cannot acknowledge. Some ACLU terrorist is
lying awake at night, dreaming of ways to make this happen.
It’s really up to us. Are we going to just watch and complain?
Or…are we going to do something about it? Are we going to do
as Jefferson Davis suggested, and make sure the "issue"
is reasserted? Author Thomas DiLorenzo said that constitutional
liberty "is an empty slogan unless the people possess the
rights of secession and nullification…. Until these powers are
restored – and the Fed, the income tax, and the Seventeenth
Amendment abolished – Americans have no hope of ever returning
to a regime of constitutional liberty.
In any event, I’m sure that many of us in the "red"
States would be Thankful if President Bush would allow the Blue
States to leave in peace. It’s really hard to imagine anyone fighting
very enthusiastically to keep them.