The fundamental principle of federalism
The fundamental principle of federalism
Thoughts on John Dickinson and the Constitution Party
In “The Spirit of American Constitutionalism” (published in The Imaginative Conservative on September 16, 2024), Gregory S. Ahern maintains that for the framers of the American Constitution, “the sovereignty of the states is not of secondary importance but is one of the pillars of the constitutional edifice. The states, as distinct political communities, provide the source of the virtue and wisdom that are to guide the nation, and they act as a check on the potential abuse of power by those entrusted with it at the national level.” Ahern holds a Ph.D. in Political Theory from the Catholic University of America, and he is a Fellow in Constitutional Theory at the Center for Constitutional Studies, a conservative think tank, of the National Humanities Institute.
Ahern basis his conclusion on the study of the influential American Founder John Dickinson, who wrote essays in defense of the constitution proposed to the people by the Constitutional Convention of 1787. Entitled the Letters of Fabius, the essays were widely distributed beginning in April 1788, and they played an important role in tipping the balance of public opinion in support of ratification of the new Constitution. The essays coincide with many of the arguments presented by James Madison, Alexander Hamilton, and John Jay in the Federalist Papers, and they may have been more persuasive, because they were less extensive.
In defending the proposed Constitution, Dickinson maintained that the principle of the power of the people is the foundation of the Constitution, and therefore, it establishes that the highest offices of the federal government are elected directly or indirectly by the people, or they are appointed by elected officials. At the same time, the Constitution divides the powers of the government, creating a system in which each of the branches checks the others, thus reducing the possibility that one part or sector of the nation can exploit another.
The legislative power itself is divided between the House and Senate. The House of Representative is the only organ elected directly by the people. The members of the House have short terms of two-years, representing local voting districts extending throughout the national territory. Frequent elections will ensure that House members will be responsive to the people; and frequent elections combined with the diversity of voting districts will be practical obstacles to the emergence of corrupt schemes in the House.
Dickinson maintained that the division of the legislative power into the House and the Senate was not a consequence of a compromise between small and large states. Rather, the creation of the Senate reflected the commitment of the Constitutional Convention delegates to the representation of the thirteen states, as sovereign republics, in the confederated republic of the United States. The Constitution was designed to ensure that the senators would be elected by the sovereign states as distinct political communities, and it was expected that the states would elect persons with greater experience and maturity, who would defend and promote the interests of their states in the confederated republic.
For Dickinson, the “residual sovereignty” of the states was an inviolate principle of the Constitution. He viewed the union as “a combination of republics, each retaining all the rights of supreme sovereignty, excepting such as ought to be contributed to the union.” The Senate was conceived as a body that would adequately protect the interests of the states as distinct political communities.
At the same time, for Dickinson, there is a national union. It is not a union forged by centralized political authority. It is a union of people who are “drawn together by religion, blood, language, manners and customs.”
The union of which Dickinson speaks is challenged by two dimensions of the reality of the nation today. First, there exists an ideological civil war between progressives/leftists and conservatives of various colors. Secondly, persons of various religions, languages, and customs have arrived to the nation, without there having been any serious national effort to formulate the principles upon which a culturally diverse nation maintains a spiritual and political unity.
But Dickinson’s point remains valid. The nation must find the road to affirming a common identification with and loyalty to the nation, as it affirms cultural pluralism as a dimension of its reality. Formulations of the concept of cultural pluralism within national unity were put forth in the first quarter of the twentieth century, in the context of a long wave of migration to the United States primarily from Ireland and eastern and southern Europe during that period. Such efforts should be retaken.
Similarly, the current ideological division must be overcome. It is unlikely that one side or the other can attain a victory that would establish its claims as the basis for consensus. Therefore, an ideological reconceptualization is needed, in which the issues of debate are framed in a different way. In such an ideological reconceptualization, the Constitutional principle of federalism could be central. Constitutional federalism would require consensus with respect to certain national policies and goals in relation to foreign policy and commerce, which pertain to the authority given to the federal government by the Constitution. But differences with respect to such questions as abortion, transgenderism, marriage, and primary and secondary school education would not have to be resolved in the national political arena, because it would be agreed that such cultural issues would be decided by the states, each in their own way, in accordance with their residual sovereignty.
The Constitution Party Platform
A return to compliance with the Constitution is the central proposal of the Constitution Party. Its Platform declares that the goal of the Party is to “restore the American system of law and justice” and to “limit the federal government to its constitutional boundaries.”
The Constitution Party Platform expresses a profound disgust with the U.S. Congress, in a formulation that is not entirely alien to the sentiments of the people of the United States. “The Congress of these United States has become an overpaid, overstaffed, self-serving institution. It confiscates taxpayer funds to finance exorbitant and unconstitutionally determined salaries, pensions, and perks. Most members of Congress have become more accountable to the Washington establishment than to their constituents. Both chambers of Congress are all too often unresponsive and irresponsible, arrogantly placing themselves above the very laws they enact, and beyond the control of the citizens they have sworn to represent and serve.”
The Platform stresses the Tenth Amendment, which states that “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.” Accordingly, the Platform declares that Congress must retake its constitutional authority by repealing laws that delegate legislative powers to regulatory agencies, bureaucracies, private organizations, the Federal Reserve Board, international agencies, the president, and the judiciary. And it stands against Big Government at the federal level: “We call upon Congress and the President to stop all federal expenditures which are not specifically authorized by the U.S. Constitution, and to restore to the states those powers, programs, and sources of revenue that the federal government has usurped.” It maintains that the federal government has no authority to mandate policies related to education, housing, and health care; these matters ought to be addressed in the states.
With respect to the use of military forces, the Constitution Party Platform asserts that “we condemn the presidential assumption of authority to deploy American troops into combat without a declaration of war by Congress, pursuant to Article I, Section 8 of the U.S. Constitution.” And it maintains that U.S. multinational corporations that invest abroad should do so at their own risk, without expecting the U.S. government to militarily defend their corporate interests in other lands. “The Constitution Party has consistently opposed American involvement in conflicts in the Middle East, Africa, Asia, Europe, and Central and South America. The United States has no interest in these areas which would justify the sacrifice of Americans on foreign battlefields.”
However, the Constitutional Party Platform undermines the goals of the Party when it takes a strong conservative position with respect to cultural issues, such as: abortion; the role of religious faith in education; the definition of marriage; special protections for homosexuals and transgenders; state support of gambling; and pornography, obscenity, and sexually-oriented businesses, The Constitution Party Platform ought to stress that the Party’s goal is to unify the people around the proposition that each state has the sovereign right to enact laws with respect to these questions, in accordance with the residual sovereignty that was granted to the states by the Constitution, which is the fundamental law that unites and bounds all Americans, regardless of race, ethnicity, religion, ideological orientation, or the date of arrival of their families to American shores.
Further critique of the Platform
Apart from its inconsistent application of the principle of federalism, the Constitution Party Platform is insufficiently critical with respect to private enterprise. To be sure, private enterprise incentivizes work and creative productivity, thereby contributing to economic growth, which benefits all. However, unchecked and unregulated private enterprise generally has some negative consequences, particularly in the era of Big Industry, which emerged in the United States in the second half of the nineteenth century. In general, the problem with free enterprise is that companies are driven by profit, and they are not structured to address the consequence of their activities for the nation. For example, the decline in American manufacturing beginning in the 1980s was a consequence of the turn of the corporations to factory relocation and financial speculation, because these investment policies were the most profitable, at least in the short term.
So there needs to be some kind of state regulation of the privately-owned companies. The state can and does use taxing and tariffs to orient the productive activities of private enterprise. Other structures of state-private cooperation should be developed. The nation should aspire to the development of a state that responds to the interests and concerns of the people, and from this foundation, seeks to orient private enterprise toward the strengthening of the national economy, without suffocating the capacity of free enterprise to stimulate productivity. Addressing this challenging task requires structures of continuous dialogue between government and industry.
As a result of its ethnocentric character, and as a legacy of the Cold War, American public discourse is unaware that socialist countries today are successfully developing such forms of state-private cooperation. They discovered that the nationalization of productive enterprises had very positive results in the first decades, but in the long term, excessive governmental control undermined work incentives and economic productivity. They therefore began to expand space for private enterprises, while observing and regulating the consequences. They have developed what some scholars are calling “socialist-oriented planned market economies.” (See “Socialist socioeconomic formations: Lessons from real socialism in the global South,” June 7, 2022). American public discourse would be improved by objective observation of the new models being developed by countries constructing socialism. The American public debate needs to move beyond free enterprise versus Big Government, and toward a search for a cooperative relation between government and industry, a cooperation that is different from the current practice of the capturing of government regulatory agencies by industry, with most politicians pretending that this practice is not occurring.
In addition, the Constitution Party Platform lacks a systematic anti-imperialist critique of American foreign policy, in spite of its rejection of military ventures in foreign lands. The Platform does not discern that American military presence throughout the world is a consequence of the imperialist premises of American foreign policy, which date to the early twentieth century, and which are driven by the notion that the USA must control markets and natural resources in other lands, and have access to their cheap labor, in order to expand the American economy. There is truth in this imperialist premise, but the problem is that the imperialist approach generates resistance from peoples in other lands, and thus it becomes costly and unsustainable. Similarly, the Platform does not see the worldwide movement against imperialism, which is successfully developing structures of mutually beneficial trade and cooperation among the nations of the Global South and East. These emerging economies are calling upon the United States to participate in the emerging process of mutually beneficial trade and cooperation, which would promote the growth of the U.S. economy in an environment of world peace, not requiring the presence of U.S. troops.
Further considerations
The concept of “States’ rights” attained a well-earned infamy in the 1960s. The concept was put forth by the racist white political establishment of the South, which had been shaped by historic need for the region to justify slavery, which had been central to its economy. The invocation of “States’ rights” was a strategy of legitimation of the southern racial hierarchical order, the laws of which clearly violated the Preamble of the Declaration of Independence and the Constitution.
But we today live in a different era, in which there has been a sea change in racial attitudes since 1965 in the nation and in the South, in spite of claims to the contrary by some, whose conduct confirms the concern of the Founding Fathers with respect to the continuous emergence of irresponsible actors who stimulate unreasoned passions among the people. Moreover, as residual racism has declined, the government has increasingly become a self-sustaining bureaucracy that imposes a technocratic rule over the institutions of the nation, combined with an ideology of toxic woke leftism, rejecting with disdain the values of middle America. The call for States’ rights today by the Constitution Party and others is not a maneuver that seeks to hide racist intentions; the call for States’ rights reflects a disgust among the people with respect to a federal government that has usurped authority and has become unresponsive to the needs of the people.
In today’s context, a return to the Constitution, including the fostering of discussion groups on the Federalist Papers, would provide, in the first place, the re-establishment of a fundamental law and moral guide that unites the people; and in the second place, the possibility to address difficult cultural questions in local contexts, with each state arriving to its own sovereign resolution.
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