Friday, February 3, 2012

Federalism And The Great Rock & Roll Swindle

Give ‘em the old flim-flam flummox
Fool and fracture ‘em
How can they hear the truth above the roar?
Throw ‘em a fake and a finagle
They’ll never know you’re just a bagel
Razzle dazzle ‘em
And they’ll beg you for more!
—Billy Flynn in “Razzle Dazzle” from Chicago

I’ve touched on federalism a couple of time in this space before.  Let’s expand a bit.

Following the defeat of Great Britain and the Treaty of Paris, what existed on these shores was a loose union of 13 otherwise independent States under the Articles of Confederation.  Although drafted in terms of “We the People,” our Constitution required each of the States as sovereign entities to sign off on it, rather than being adopted by popular vote.  As James Madison wrote:

“Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act.  In this relation, then, the new Constitution will, if established, be a federal and not a national constitution.” 
Federalist Paper No. 39 (emphasis original).

Ratification of the new Constitution and creation of the Union were by no means certain.  Having just fought for eight years to get out from under the thumb of an oppressive central regime, the States were wary of trading one set of shackles for another.  Of particular concern was that with the formation of a central government, the States would lose their individual sovereignty, and that the central government would soon grow out of control, thus putting the States and their respective citizens right back where they started.  It was for this reason that the Framers added the Ninth and Tenth Amendments to the Bill of Rights:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Alexander Hamilton (together with his conscripts Madison and John Jay) wrote the Federalist Papers to overcome these concerns.  They were, in effect, a sales pitch.  Although Madison addressed the State sovereignty issue (most notably in No. 45, which I have and will continue to quote in this space often), it is the writings of Hamilton on this subject that sting today.

Like Madison, Hamilton told the readers of their Publius essays that there was nothing to fear from the Constitution, and that the central government it created would not encroach upon the liberty so dearly won:

“It may safely be received as an axiom in our political system that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”

Federalist Paper No. 28.  Indeed, Hamilton pooh-poohed to the point of ridicule those who objected that a central government, once created, would eventually expand and consume all aspects of State sovereignty and individual liberty:

“The moment we launch into conjectures about usurpation of the federal government, we get into an unfathomable abyss and fairly put ourselves out of the reach of all reasoning.  Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to escape from the apparitions which itself has raised.  Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging in an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution.”

Federalist Paper No. 31.  Why, these fears of a central government taking over everything, that’s just crazy talk.

As Bill Cosby would say:  Riiight.

Hamilton continued:

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent upon the general will.  But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

Federalist Paper No. 32 (emphasis original).  He even went on to argue that the Bill of Rights itself—which, of course, includes the Ninth and Tenth Amendments—was unnecessary, because the Constitution so limited the authority of the central government that there was no need to protect against that which that central government already couldn’t do:

“I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous.  They would contain various exceptions to powers which are not granted . . . [W]hy declare that things shall not be done which there is no power to do?”

Federalist Paper No. 84.

Yeah, if you’ll buy that, I’ll throw the Golden Gate in free.

In his effort to sell the new Constitution and its central government to the reluctant States, Hamilton repeatedly assured that there was nothing to be concerned about, and that the central government would be adequately held in check.  Read in context with the Ninth and Tenth Amendments, one can even see how Hamilton might be taken at his word.

But any good car salesman is believable.

History shows us that what Hamilton really did was pull off the greatest bait-and-switch in human history.  Having sold the Constitution in 1788 as creating a limited and controllable central government, by 1790 Hamilton as Secretary of the Treasury of that new central government had sponsored the first U.S. government bailout by pushing through a bill for the federal government to assume the States’ outstanding war debts, and in 1791 he established the first National Bank.  Neither action finds support in the text of the Constitution, although the National Bank concept was later accepted by the Supreme Court in McCulloch v. Maryland—yes, I know McCulloch dealt with the second National Bank and not the first, but the National Bank concept was Hamilton’s—providing the framework for the exceedingly dangerous doctrine of implied powers. 

Why declare that things shall not be done which there is no power to do?  That’s why.

In only three years, Hamilton had laid the foundation for unleashing the very Pandora’s Box he argued so vociferously didn’t exist.  His fingerprints can be seen even today in almost everything emanating from the District, including Medicaid, No Child Left Behind, TARP, “stimulus,” FEMA disaster relief, EPA, Obamacare, dictating what must be included in school lunches, and what will surely someday soon be federal bailouts of California and other bankrupt States.  Hamilton’s autograph serves as a watermark to President Obama’s signature on his most recent unconstitutional executive fiat appointments of yet another series of czars and bureaucrats to regulate and dictate, without oversight from Congress or accountability to the citizenry.  Daniel Hannan, in his recent book The New Road to Serfdom, warns us against this very phenomenon of allowing the central government to erect an ever-more complex series of bureaus and agencies through which innumerable un-elected and unaccountable officials become entrenched in power.  These, my friends, are the steps by which liberty is lost, never to be regained. 

Somewhere in heaven, the Framers are trying to find Hamilton to get their money back.

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