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Americans — and much of the
rest of the world — have been deprived of one of the most important
means of establishing and maintaining a free society, namely, federalism or
states' rights. It is not just an accident that states' rights have either
been relegated to the memory hole, or denigrated as a tool of racists and
other miscreants. The Jeffersonian states'-rights tradition was — and
is — the key to understanding why Thomas Jefferson believed that the
best government is that which governs least, and that a limited
constitutional government was indeed possible.
What Are
"States' Rights"?
The idea of states' rights is most
closely associated with the political philosophy of Thomas Jefferson and his
political heirs. Jefferson himself never entertained the idea that
"states have rights," as some of the less educated critics of the
idea have claimed. Of course "states" don't have rights. The
essence of Jefferson's idea is that if the people are to be the masters
rather than the servants of their own government, then they must have some
vehicle with which to control that government. That vehicle, in the
Jeffersonian tradition, is political communities organized at the state and
local level. That is how the people were to monitor, control, discipline, and
even abolish, if need be, their own government.
It was Jefferson, after all, who
wrote in the Declaration of Independence that government's just powers arise
only from the consent of the people, and that whenever the government becomes
abusive of the peoples' rights to life, liberty, and the pursuit of happiness
it is the peoples' duty to abolish that government and replace it with
another one. And how were the people to achieve this? They were to achieve it
just as they did when they adopted the Constitution, through political
conventions organized by the states. The states, after all, were considered
to be independent nations just as England and France were independent
nations. The Declaration of Independence referred to them specifically as
"free and independent," independent enough to raise taxes and wage
war, just like any other state.
That is why the political heirs of
Thomas Jefferson, mid-19th-century Southern Democrats, held statewide
political conventions (and popular votes) to decide whether or not they would
continue to remain in then voluntary union of the Founding Fathers. Article 7
of the US Constitution explained that the states could join (or not join) the
union according to votes taken at state political conventions by
representatives of the people (not state legislatures) and, in keeping with
the words of the Declaration, they also had a right to vote to secede from
the government and create a new one.
Jefferson was not only the author
of America's Declaration of Secession from the British Empire; he championed
the idea of state nullification of unconstitutional federal laws with his
Kentucky Resolutions of 1798, and also believed that the Tenth Amendment to
the Constitution was the cornerstone of the entire document. He was a
"strict constructionist" who believed that every effort should be
made to force the central government to possess only those powers delegated
to it in Article 1, Section 8. Delegated to it by the states, that is. All
others are reserved to the states, respectively, and to the people under the
Tenth Amendment.
States' rights or federalism never
meant that state politicians were somehow more moral, wise, or less corrupt
than national politicians. The idea was always that
1.
it is easier for the people to keep an
eye on and control politicians the closer they are to them, and
2.
a decentralized
system of government consisting of numerous states provided American citizens
with an escape hatch from tyrannical governments.
If Massachusetts created a state
theocracy, for example, those who did not want to live under the thumb of
Puritan theocrats could escape to Virginia or some other state. The idea of
states' rights was never meant by the Jeffersonians
to create a "laboratory of experimentation" with government
interventionism, as modern political scientists have said. That would be
treating people as so many experimental rats in a cage, and that is not how
Jefferson liked to think of himself.
Secession or the threat of
secession was always intended as a possible means of maintaining both the
American union and constitutional government. The idea was that the central
government would likely only propose constitutional laws if it understood that
unconstitutional laws could lead to secession or nullification. Nullification
and the threat thereof were intended to have the same effect. That is why the
great British historian of liberty, Lord Acton, wrote the following letter to
General Robert E. Lee on November 4, 1866, seventeen months after Lee's
surrender at Appomattox:
I saw in States' rights the only
availing check upon the absolutism of the sovereign will, and secession
filled me with hope, not as the destruction but as the redemption of Democracy.
The institutions of your Republic [i.e., the Confederate Constitution] have
not exercised on the old world the salutary and liberating influence which
ought to have belonged to them, by reason of those defects and abuses of
principle which the Confederate Constitution was expressly an wisely
calculated to remedy. I believed that the example of that great Reform would
have blessed all the races of mankind by establishing true freedom purged of
the native dangers and disorders of Republics. Therefore I deemed that you
were fighting the battles of our liberty, our progress, and our civilization;
and I mourn for the stake which was lost at Richmond more deeply than I
rejoice over that which was saved at Waterloo.
What Lord Acton is saying here is
that he considered it to be a disaster for the entire world that the right of
secession was abolished by the war. The 20th century would become the century
of consolidated, monopolistic government in Russia, Germany, the United
States, and elsewhere, and it was a disaster for humanity. Had the rights of
secession and nullification remained in place, and had slavery been abolished
peacefully as it had been everywhere else in the world, America would have
been a counterexample of decentralized, limited government for the rest of
the world.
General Lee understood this. In his
December 15, 1866, response to Lord Acton he wrote,
While I have considered the
preservation of the constitutional power of the General Government to be the
foundation of our peace and safety at home and abroad, I yet believe that the
maintenance of the rights and authority reserved to the states and to the
people, not only are essential to the adjustment and balance of the general
system, but the safeguard to the continuance of a free government. I consider
it as the chief source of stability to our political system, whereas 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. (emphasis added)
This is all a part of America's
lost history. The advocates of centralization who were the victors in the War
to Prevent Southern Independence rewrote the history of America, as the
victors in war always do. This is why I am offering a new four-week online
course under the Auspices of the Mises Academy
entitled Freedom and
Federalism: The Libertarian States' Rights Tradition. Classes will
meet beginning on Thursday, February 2. The purpose of the course is to
introduce students to the libertarian or classical-liberal states'-rights
tradition, and to impart to them an understanding of how such historical
figures as Thomas Jefferson and Lord Acton believed that that tradition was
the key to controlling "the sovereign will" and preventing
democracies from turning into despotisms and tyrannies.
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