State Sovereignty and Constitutionally-limited Government

As some seem to want to tell it, when the nation was first formed, it was clear that the war could only be prosecuted successfully by a strong central government. Only with significant power of taxation to pay the soldiers fighting for our freedom, and the might to keep the states in line so that there would be a concerted and unified effort against England, could the nation win the war.

After the war, however, many succumbed to the stupor that accompanies a strong central government, preferring safety and comfort to the freedoms they had just fought a war to acquire. A group of brave, patriotic men met in Philadelphia, and with few disagreements and a unified voice, created a Constitution which weakened the central government by placing limitations on its authority. Even though the creators of the Constitution had few disagreements among themselves, it took a concerted effort to convince a population growing lazy that a weaker central government was in their interests. It took the valiant efforts of Jameson, Alexander, and Bird in the Federalist Papers to promote this new vision, and ultimately, it prevailed.

Well, of course, that’s not how (97% of?) historians see it. Gordon Woods puts it succinctly in his lecture at the Humanities Texas teacher institute, melding the two most common views of the  formation of the Constitution, that of John Fiske in 1888, and that of Charles Beard, from 1913. Fiske describes a society “falling into chaos and anarchy, with the country’s finances near ruin. The confederation government was collapsing, and the various state governments were beset by debt. . . . It was a desperate situation, retrieved only in the eleventh hour by this group of high-minded Founding Fathers who came in and saved the country from disaster.” Beard creates the Progressive interpretation, that the founding fathers got together to protect their own economic interests. Wood notes that society was not really falling into the chaos as Fiske describes, but does acknowledge that commercial and military interests required a stronger central government. Further, Wood describes a “democratic despotism” going on in the states. In his view, Madison reacts against “the multiplicity, the mutability, the changeability, and the injustice of state laws [that] was the most serious problem facing Americans.”

In all of these cases, Fiske, Beard, Wood, and Madison, it is clear that the founding fathers were replacing a weak central government confederation of sovereign states with a strong, central government connecting directly to the people and maintaining authority over the states.

So how can servative, writing at Saving Our Future, claim that “The Constitution, which began as a contract of federal constraint, is ‘evolving’ into an instrument of federal repression,” when ranting about illegal immigration and the 14th Amendment’s ‘subject to the jurisdiction thereof.’ How can Richard Mack, former sheriff of Graham County, Arizona, say, “And I will tell you this, if we do not, if the counties and cities and states do not exercise their proper constitutional authority, known as state sovereignty and the 10th Amendment, if they do not enforce their own state sovereignty and secure their state sovereignty, then America will die. If we do not exercise the 10th Amendment and state sovereignty, we will lose liberty in America, and we will not get it back unless there’s bloodshed.” How can the Tea Party adherents have campaign planks emphasizing “state sovereignty”? How can conservatives promote state sovereignty as the law of the land when the very Constitution they worship was written to limit the rights the states had in the Articles of Confederation?

A conjunction of two recent books provides a compelling answer, David Sehat’s The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible, and Elvin Lim’s The Lover’s Quarrel: The Two Foundings and American Political Development. In The Jefferson Rule, Sehat argues that, throughout American history, whether liberal or conservative, in order to get your argument validated, you have had to establish that your views are those of the Founding Fathers. In the Lover’s Quarrel, Lim argues, our nation has had two foundings, one founding being that of the Declaration of Independence, the other that of the Constitution.

In The Jefferson Rule, Sehat maps a path through American history where political success required fealty, real or pretended, to the Founders. Jefferson described his victory over the Federalists as establishing his own view as the incontrovertible authority of what the Founders wanted. In the election of 1824, John Quincy Adams expressed regard for the “precious inheritance” of the Founders, but he realized that his administration needed to depart from the path set by this view of the Founders. Unable to communicate his views persuasively, his administration floundered. The views that Jefferson promulgated, now equated with the principles of the Founders, and policitian’s perceived need to adhere to them, laid down the circumstances for a series of crises which would lead over the next forty years to the Civil War.

With the failure of the Founders’ government to prevent the Civil War, expressions of fealty to their vision became less prominent. In 1908, Woodrow Wilson wrote Constitutional Government in the United States, which recognized the changes in society and the nation and noted the “anachronistic character of the Founder’s government.”

Since then, however, fealty to the Founders has gained in prominence. Here the argument of Elvin Lim’s The Lover’s Quarrel becomes salient. The nation began with a Declaration of Independence and a confederation of sovereign states. This was the first founding, with anger at England and a meddling government and the violence of the Revolutionary War. When the Articles of Confederation turned out to be insufficient, a group of men met in Philadelphia to create a Constitution which called for a stronger central government. This was the second founding, one of deliberation and compromise. But even as the Constitution was successfully ratified, the Anti-Federalists, those who opposed the Constitution as granting too much authority to the central government, were able to secure “a piece of the First Founding in the new Constitution, with the ratification of the Bill of Rights in 1791.” And so was launched “the fundamental bipolarity of the American identity in our conceptions of our union.”

As we need to ground our current principles and policies in adherence to the Founders, as Sehat proposes, we can ground them in the principles of the first founding, or those of the second founding, and the two are very different. The first founding is one of small central government, and sovereign states rights; the second founding in the recognition that a stronger central government is necessary to the well-being of the nation. In the first founding, the government is the enemy of liberty and must be restrained; in the second founding, the government is in many ways the guarantor of liberty.

President Harding in the 1920’s first coined the phrase “Founding Fathers” and “sought to renew the founding adoration for a new generation.” To Harding, the founding fathers would have supported big business and rejected the progressive policies of the era just coming to an end. When he spoke at the dedication of the Lincoln Memorial in 1922, he turned aside the notion that Lincoln had overseen a new, effectively third, founding, and proclaimed, “He treasured the inheritance handed down by the founding fathers, the ark of the covenant wrought through their heroic sacrifices…In that way Lincoln proved ‘the wisdom of Washington and Jefferson and Hamilton and Franklin’ in preserving their system of constitutional government.”

Franklin Roosevelt, in response to the Great Depression, dramatically increased the scope of government. As Sehat notes, “even for a politician as skilled as Roosevelt, the American political tradition of invoking the Founders could not be so decisively rejected. The pattern of argumentation proved too useful, too alluring a weapon. As he began to ramp up his program, his critics, though few, would soon make effective use of the Founders to try to block his agenda. And when they did, Roosevelt would have to decide how to respond. In the process, he began the modern fight over the Founding Fathers.” When business turned against the New Deal, and the Liberty League wrapped itself in the mantel of the Founding Fathers, Roosevelt “fully shifted his rhetorical strategies. He now no longer spoke of reconstructing and transforming American government to meet the new realities of an industrial age. His goal, he said, was primarily restorative. The battle he fought began ‘in the Constitutional Convention of 1787.’ ‘From time to time since then,’ he elaborated, ‘the battle has been continued, under Thomas Jefferson, Andrew Jackson, Theodore Roosevelt and Woodrow Wilson.’ Roosevelt stood in this tradition.”

When in the 1980’s the Reagan economic program was failing, when lower taxes and higher defense spending led not to a balanced budget but to the largest deficits ever, and support in his administration was eroding, he, too, took up the mantle of the founders. “His team had decided to renew the theme of national values that he had sounded in 1980, but this time he draped himself again and again in the robe of the Founding Fathers. Because his project was a recovery of the founding values, he claimed that his opponents were betrayers of the American character and purpose and therefore thoroughly un-American.”

Ours is the decade of the Tea Party and both Behat and Lim reference the movement. For Lim, obviously, the Tea Party harkens back to the first founding, one where their loyalties are to the states and localities, and where the federal government is the adversary. When he mentions the Tea Party wanting to ‘take back’ Washington, he notes that this “has insinuated that there is a higher source of legitimacy than the Constitution itself—namely, the people.” Consonant with his view that our allegiances to the first or second founding come more from predilection than analysis, he references the work of Theda Skocpol and Vanessa Williams (The Tea Party and the Remaking of Republican Conservatism), “Despite their fondness for the Founding Fathers, Tea Party members we met did not make any reference to the intellectual battles and political compromises out of which the Constitution and its subsequent amendments were forged … nor did they realize the extent to which some of the positions Tea Partiers now espouse bear a close resemblance to those of the Anti-Federalists … The Tea Partiers we met did not show any awareness that they are echoing arguments made by the Nullifiers and Secessionists before and during the U.S. Civil War.”

Behat takes a similarly jaundiced view, noting that the Tea Party posture on the Constitution is one of literalism, “a literalism so strict that Lepore accused the Tea Party of ‘historical fundamentalism.’”

Behat summarizes, “Because the Founders do not offer a stable reference to make sense of the present, their presence in American political debate has long been problematic. They have become icons of divergent visions of national life, repositories for political ideals, favorable institutional arrangements, and visions of citizenship that vary depending on who is invoking them. Jefferson spoke of the Founders as supporters of an agrarian ideal of liberty. John C. Calhoun made them into promoters of states’ rights. Jackson used them to push political democracy. Others have gone in different directions, using the Founders for national economic development (Clay and Adams), slavery’s restriction (Lincoln), popular sovereignty (Douglas), business rights (the American Liberty League), economic equality (Roosevelt), black civil rights (King), tax cuts and antigovernment retrenchment (Reagan), political moderation (Obama), and the revolutionary power of the people (the Tea Party).”

Lim’s ideas are much more nuanced than I have presented, and well worth reading. His thesis offers an understanding of the differences which power political disputes today and renders shallow most of political commentary today. The differences between first and second founders throughout history, and in today’s political skirmishes, flow from deep and deeply-conflicting roots. On gun rights he notes, “Defenders of gun rights believe that citizens should enjoy the presumption of virtue, not governments.” This is why, “conservatives do not seek a more perfect Union, but a more virtuous republic. In contrast, “If virtue in citizens and representatives was enough, the state governments and the Articles of Confederation would not have failed so miserably, or so some Federalists thought.” To summarize his understanding, he notes, “The Constitution did not create a compound republic in which the partly federal and partly national elements were stably and constantly integrated. Ours is a colloidal republic in which the powers of its component parts were never conclusively fixed because from the beginning, as Madison put it in Federalist 37, ‘no language is so copious as to supply words and phrases for every complex idea.’ The new federalism was quintessentially such an object.” But Lim’s depth and subtlety is well beyond the scope of this article.

Behat and Lim give the reader a perspective from which to analyze our political discussion. The tale of Kim Davis illuminates these fissures. Kim Davis has the right to her religious freedom (first founding, and it’s in the Constitution!); no, she has a constitutional duty to perform her job (second founding, clearly what the Second Founders intended!). The Supreme Court ruled unconstitutionally (there is a higher power than the government, it is ‘the People’, if not God himself); no, it was a violation of their constitutional rights that some individuals were forbidden from marrying. Getting perspective from Behat’s and Kim’s theses, we are better able to analyze the arguments, recognize their provenance, evaluate their legitimacy and utility, and better understand the complexity of our political process. We also echo, with Sehat, that requiring that we continually clothe our arguments in the mantle of the Founders is often truly damaging to effective political discourse.