Part 2: In Theory
In Part One of this series, I laid out the case that federalism has been widely misconstrued, mercilessly ridiculed, and meticulously bastardized throughout the 20th century. This has culminated, in the past two years, with Heather Gerken’s “progressive federalism” lunacy (which I exposed in gory detail in that piece).
The fact that her theory has been commended, by Federalist Society elites and widely read conservative blog sites, should certainly frustrate anyone seeking a return to First Principles and/or federalism.
But it shouldn’t surprise us in the least.
Gerken is only the latest in a long line of infiltrators, usurpers, and malcontents to employ the academic and judicial “interpretation” gambit in an attempt to foment doubt among Americans as to the nature of our Constitution. She simply stands on the shoulders of many before her, who sought to frame the Framers as short-sighted or clumsy, and did so for widely varying reasons.
The Constitution, as we will make clear in an upcoming series here at The Trenches, fully lays out the federalist model of governance. And it is further enhanced by the doctrines of Separation of Powers, Non-Delegation, and, believe it or not, free enterprise.
All of these are woven into the very fabric of our founding documents, and are inextricably linked to America’s status, prosperity, and subsequent influence on the world stage.
It is no wonder, then, that egalitarians, utopians, grand guardians, princely philarchs, and the just plain misinformed have sought to disrupt this order, from the very beginning.
To answer the question of how this misinterpretation of the Constitution came to be so commonplace, to the point where the propriety of doing so is no longer even challenged, we must embark on a brief historical recap.
The first among this “interpreter” set were, of course, the Antifederalists. Most of them argued that the Articles of Confederation were sufficient and, therefore, no Constitution was needed. These men, surely patriots all, rightly feared a large central government, given the tyrannical monarchy they had so recently deposed.
Their remedy for the issues that had arisen (actual “hot, shootin’” trade wars between colonies, for example), which made the Articles largely unworkable, was to simply apply a handful of tweaks and call it a day.
The Federalists, to their credit, agonized over the necessity of granting a little more power to a central governmental body. Accordingly, they spent the majority of that brutally hot summer hammering out clear language that would serve to “bind the mischief” of the general government, while reserving the vast majority of powers to the states and, even more so, the individual citizens.
At length, a new Constitution was written, but it was clear that it wouldn’t be ratified without concessions to the Antifederalist contingent. And, in retrospect, that was a damn good thing.
The arguments against this Constitution, among the Antifederalists, ranged from “too many weasel words” to “far too inclusive” (of women and minorities, specifically), to “not enough emphasis on rights.”
The latter is the easiest to explain, because the end result is the original Constitution plus 10 that we know today. The Antifederalists feared that, without drawing a clear line of individual rights in the sand, beyond which the general government was forbidden to step, all liberties would eventually be curtailed by some future despot.
This was, after much wrangling, solved by adopting what we now know as the Bill of Rights. But that is only half the story.
The Federalists now balked at the proposed amendments, and were even joined by a handful of Antifederalists. They claimed that, since these amendments laid out specific rights reserved to the people, future officers of the government would presume that list to be exhaustive. After all, why list only certain natural rights? Freedom of speech and assembly, but not freedom to wear a hat, or not, or plow one’s field shirtless, in the heat of summer? Excluding these would surely lead the government to believe that they weren’t meant to be protected at all, right?
To curb these complaints, James Madison, at the urging of Thomas Jefferson and George Mason (and borrowing heavily from their Virginia and Kentucky Resolutions), added on amendments 11 and 12. These are familiar to us now as the 9th and 10th amendments, and are meant to be entirely complementary.
Our 9th amendment, contrary to the late Robert Bork’s colorful (and deplorable) “ink blot” description, was the one that sealed the deal. It clearly stated that the previous 8 were in no way to be mistaken as circumscribing the entirety of the natural and unalienable rights of the individual, within the civil society the Constitution sought to maintain.
This one amendment, more than any other line in the Constitution, won over enough Federalists and Antifederalists to ratify the entire document.
And, still, objections were raised. Leading Antifederalists made their cases that certain clauses were troublesome. They argued that “weasel words” such as “general welfare” and “necessary and proper” would be contorted by future wannabe despots, to suit their lust for plenary Federal powers.
This line of argument paved the way for the “Constitutional interpretation” crowd which has infected the halls of academia for well over a century, with Woodrow Wilson and Heather Gerken being but two notable examples.
Madison, Jay, and even Hamilton made it clear, in the Federalist Papers, that no such “interpretation” was necessary. The Constitution was, after all, a contract written in the plain English of the day, to be applied and understood by lawyers and laymen alike, in British Common Law tradition.
As such, there simply are no governing “clauses” to be found. The contract must either be honored, as a whole, amended according to the process detailed therein, or rejected outright. This latter path, which has been trod thoroughly in the intervening years, is nothing less than an undeniable breach of that contract.
As previously stated, some of the Antifederalists (and a fair number of Federalists) were not happy with the 12 proposed amendments (only 11 of which have been ratified since. And we’ll talk about the original First Amendment in greater detail in the next part of this series.).
But the Federalist arguments won the day, at one state ratifying convention after another, and the new Constitution was eventually adopted. And the debates have raged on, ever since, over whether it means what it actually says, or if those who didn’t write it somehow understand it more clearly than those who did.
The Framers would share a hearty gut-laugh if they were to hear the hotly contested “textualist” versus “originalist” debates which consume so much of the available oxygen among judges, lawyers, academics, and FedSoc scholars these days. I can almost hear Madison, inquiring in utter disbelief: “Can they no longer read? Has that one faculty escaped our posterity?”
Sadly, it would appear so.
Because, in the intervening years, the classic fallback argument of those who seek to undermine First Principles, federalism, and the very Constitution itself has been “How can we know what the Founders really intended?” or, “These clauses are vague and open to interpretation, after all.” or (my personal favorite), “That was a different age with far different technology. Surely the Framers could never have predicted thus and such…”
Sheer nonsense, of course. Every last syllable. But, we can discuss two of those at another time, so consider this sentence a placeholder for a link to that future post.
The “vague clauses” and “open to interpretation” argument is what concerns us at the moment.
As I’ve pointed out numerous times, Progressives seek to twist the language, first to establish their false premises, then to fortify them until they become accepted, and finally to teach these false premises as established foundational truths, to new generations. This language-twisting is so integral, to every one of the Progressives’ ends, that it has virtually been written into their ideological DNA, and to such an extent that they are no longer even cognizant of doing it.
Worse, since the arguments were not even made against these false premises at their inception (or, if at all, only anemic arguments were made), the opposition now finds itself facing down largely accepted premises, with no leg to stand on toward the goal of refuting them. In turn, would-be opponents now find themselves twisting the language, as well, in a feeble attempt to temper the premise and steer the narrative in a direction that is only different by nominal degrees, rather than truly opposite.
So, after all of that back story, combined with other expository pieces written by myself and many others, we can see how long the process has been, and how complete the undermining of our Constitution truly is.
And this leads us into the various “flavors” of federalism you’ll hear about in PoliSci and ConLaw courses. Not all of them were coined by Progressives, but every last one came about as the result of the Progressive false premise of Constitutional “interpretation”. And all of these terms have been used not only to mask what Founding federalism is, but to destroy it by the old “damned with faint praise” tactic.
So, let’s explore each one in brief and, by doing so, clearly lay out what actual federalism is, as enshrined in the Constitution.
1) “Dual Federalism” (Also commonly called “Layer Cake”) – This concept posits that plenary powers are granted to Federal and state governments, with the sole restriction being non-infringement. The states are not to assert authority in areas the Federal government claims jurisdiction over, and vice versa.
In nearly every ConLaw or PoliSci course, this is listed as the definitive Founding-era federalism model. Which, as I’ll prove in the following paragraph (yes, singular), is a purely fallacious claim.
What none of these pointy-headed academics seem to remember is that pesky (and far too often overlooked) 17th Amendment. Before 1913, the Constitution mandated that the individual state legislatures select two Senators, to represent the interests of those sovereign states in the national government. But, interestingly, no such mandate was placed on the Federal government, to impose corollary emissaries of its interests on the state governments.
So, “Layer Cake Federalism” obviously isn’t actually what the Framers had in mind. They envisioned a general government largely subordinate to the individual states and, more so, their citizens.
And each of the following adjectives, which the academic elites have attempted to burden federalism with, is progressively (swidt?) further from the mark.
2) “Marble Cake Federalism” (Also commonly called “Cooperative” or “Picket Fence”) – This is a theory of “federalism” ushered in by the Progressive Era, especially into the ’30s and FDR’s wholesale rewriting of the relationship between the people and their governments.
The basic gist of this slightly-more-nonsensical theory is that the extraordinary circumstances of the depression called for greater Federal action, requiring the states and the people to relinquish some 10th Amendment sovereignty protections for “the greater good.”
But how could a “greater good” be derived from the states and people being plundered, only to have a tiny portion of those dollars filtered back down to them via Federal programs and diktats? Naturally, this has never been explained. Because it defies any logical application of basic economics, let alone the clear and Constitutionally enumerated limits on Federal taxing and spending authority.
The main justification for every subsequent “flavor” of federalism is based on the “elastic clause” fallacy. Statists of every stripe have contended that the “necessary and proper” clause in Article 1, Section 8 was intended to be flexible, up to and including plenary Federal power.
This is, on its face, absurd. One need only read the clause in question, in its entirety, to put the lie to this notion. The “necessary and proper” clause includes a qualifier: “for carrying into execution the foregoing powers.” This was simply reaffirming the British Common Law doctrine, in the realm of contract law, of “implied powers.”
For example, Article 1, Section 8 gives the Congress authority to “establish post offices and post roads”, but it makes no mention of acquiring land for those roads and buildings to be constructed upon, nor does it appear to allow the government to pay construction workers or, indeed, postal workers. But these are all implied by the primary power, and are lesser functions.
The test of implied powers is simply that they be absolutely necessary to fulfill the original power, and that their execution require a lesser disruption of the federalism order than the execution of the explicit power. Pretty simple, and very clearly stated in the Constitution. Not a bit of “elastic” to be found, is there?
So, the “elastic” had to be invented, which has led to all manner of co-opting, by the general government, of powers and duties implicitly and explicitly reserved to states, localities, and individual citizens.
To be frank, nearly the whole of Federal government expansion since the end of the Civil War has been in direct contravention of the original Constitution. (Again, this will be explained more fully in an upcoming series here.)
3) “Creative Federalism” (Sometimes referred to as “Competitive” or “Social”) – This regime was ushered in during the LBJ “Great Society” era, and reasserted the Framers’ vision of the sovereign states as “laboratories of ideas”. Sort of.
Under a system of true federalism, the state and local governments implement policies (or revoke existing bad policies) in order to compete with one another for the voluntary relocation of private sector investment dollars and entrepreneurs (also known as “voting with one’s feet). The “Competitive Federalism” model under LBJ turned that on its ear.
Instead of competing for private sector capital (both monetary and intellectual) directly, the states were forced to compete for that capital, after it had been pilfered via Federal taxation and dangled in front of the states as a carrot on a stick. The money in this scenario is the carrot, with unfunded (and largely undisclosed) Federal mandates being the stick.
For the most part, this is the system of “federalism” we operate under to this day, with minor revisions to the minutiae.
For example: in the Nixon era, it is taught that there was a brief return to FDR’s “Cooperative Federalism” with the introduction of a cutesy regime labeled “crossover requirements.” This idea was based on the flawed notion of “incorporation”, which surrounds the jurisprudential application of the 14th Amendment. (Again, a more lengthy explanation is required and will be given in a future post here.)
“Crossover requirements” were yet another stick added to the Federal arsenal, purportedly with good intentions (but aren’t they all?). The rudimentary theory behind these requirements was based on the objective fact that, as state “laboratories” cranked out their ideas, some would inevitably work better than others.
But, at that point, the Federal government observers, aided by the churn of forests of paperwork, would discern the best among these ideas and “encourage” other states (with similarities in population density, demographic division, and agricultural resources) to implement the same “best practices.”
Sure, states could refuse to do so. But that would increase the likelihood of the Federal “formula grant” carrot being taken away, with the stick still firmly wedged between that state’s capitol colonnades.
4) “New Federalism” (Largely interchangeable with “Fiscal Federalism”) – Despite “legal academy” scholars’ polarized views of the Rehnquist court and “New Federalism”, this was, again, little more than a minor revision of the “Creative/Cooperative” model carried forward from Johnson and Nixon.
Crossover requirements were scaled back to an extent, but not eliminated. Formula grants were largely replaced by block grants, but not entirely.
The cash flow remained relatively unchanged, as well. Citizens of the states are taxed, in various forms, the money then sifts through the grinding government gristmill inside the 495, and is finally “sent back” (minus large chunks to cover administrative overhead) to the states to pay for a portion of a Federal mandate.
What the “conservatives” who champion “block grants” seem to forget is that there is zero sanction in the Constitution for the general government to confiscate a single penny from individuals, to be used for anything other than enumerated Federal functions.
Once again, we see the slow creep of subverting the Constitution, and the Progressive false premise of “for the greater good” being enthusiastically accepted and advanced by many who should know better.
And that brings us full circle to where we left off in the first part of this series:
5) Professor Gerken’s “Progressive Federalism”, which she also dubs “Uncooperative Federalism.” As explained in Part 1 of this series, her idea has gained a foothold in conservative circles, as well.
But there is yet another contingent, within the “liberty movement”, that is unwittingly (I hope) helping to advance the destruction of our Constitution. Mainly among Libertarians lurks the Rothbardian set. They are generally followers of the Austrian School of economics (von Mises, Hayek, Bohm-Bawerk, etc.) and I have no particular bone to pick with them. They promote economic liberty and free enterprise, after all, as do I.
But I refer to a smaller subset within the Rothbardian clique, who have wholly accepted the original Antifederalist “weasel words” and “open to interpretation” arguments against the Constitution. Those arguments have found increasing favor among this tiny anarcho-libertarian subset, and their ideas are every bit as insidious as Gerken’s.
Thomas Woods, Thomas DiLorenzo, and others of the Rothbardian persuasion would love nothing more than to return to a confederalist model wherein the Federal government would have to seek, and gain, approval from the disparate states in order to carry out even the most basic national functions.
As the Articles of Confederation (and their fiery self-destructive end) demonstrated, this scheme was unworkable even in a dozen colonies, let alone 50 states. Unfortunately, these folks have gained notoriety and clout among leading free market advocates, and their more subversive anarchical ideas have, subsequently, gained an audience.
The main flaw in their premise lies in the fact that they seem to blame the Constitution itself for the ills of government today, which we’ve shown were brought about by not following the Constitution. In other words, in order to solve the problems inevitably arrived at due to Progressive attempts to destroy the Constitution, these Rothbardians would throw out the Constitution entirely, and return to the Articles of Confederation.
That idea, while posited with the intention of neutering the Federal leviathan, is poorly thought out, and leads to all manner of other ills. These include the equally flawed notions of “state nullification”, secession (as anything more than an option of last resort), the “illegal Civil War”, and Lincoln as a “tyrant” for attempting to fulfill the “created equal” and “unalienable rights” portions of the Declaration. (All of these points will be proven, fully, in an upcoming post here, should any of you object to them.)
Why do I single out this small group? Principle.
As I’ve stated here many times: flawed premises must be called out as such, and as loudly as possible, no matter what quarter they spring up from. Although I agree with these folks, almost entirely, on economic laws and the threat to liberty and fiscal sanity posed by government overreach, their Constitutional “interpretation” is, if believed by a wide enough audience, just as dangerous. As such, we should dispatch it. With prejudice.
And, finally, we are left with the questions that I hope to answer in full, in the final installment of this series: “How do we fix all of this?” and “What can actually be done (if anything)?”
A plan is in place, and this year is the proving ground for phase one of implementation. All of the necessary details, for you to aid in getting America back on the track of true federalism, will be fully explained therein. Rest assured, it can be done within the framework of the Constitution as written.
Indeed, it cannot be stopped.