Wednesday, October 27, 2021

Federalism

America’s first big political hill to climb was whether we should have a One-Party government.

And, rather quickly, it was decided “No”.

That original one-party was supposed be the Federalist Party according to it’s two biggest proponents John Adams and Alexander Hamilton, who, with that in mind, also pushed for the ratification of the Constitution-as-written by the Federal Convention in Philadelphia (May through September, 1787) and presented it back to the states later that year.

It’s important to understand that all the terms used here; federalism, Federalist, Anti-Federalist, States Rights, etc held much different meaning fewer then 70 years ago when William Buckley and friends used those concepts to formulate a new American idea of  “conservativism” wishing to be the dominant intellectual wing of the Republican Party after what they considered to be a dangerous drift away from the original Republican brand which many people do not know, wasn’t Big Business in a free market economy, but rather its older brand, the Doctrine of Liberty, as laid out by one of the founders of the Republican Party in a speech to Phi Beta Kappa at Harvard in 1862. His name was George William Curtis. In the northeast business sector that doctrine was more or less scuttled in the 1870s, which ushered in the Gilded Age with post-Civil War industrial revolution. (I did an essay on that subject, “The Doctrine of Liberty”, the original Republican Brand, Who Owns it?” which can be read simply by searching the title and Vassar Bushmills.) The doctrine of the “Doctrine of Liberty” quickly fell to a much lesser position in national Republican Party thinking but remained an anchor in small towns and public schools well into the 1960s, when parents still controlled their local public schools. It was a key element of the process of assimilation, the “melting pot”, across the country of the millions of immigrants who came ashore between the 1870s thru 1930.

None of those terms mean quite the same today as they did in 1955 or 1824 or in 1787, so in order to understand their intended usage we need to peer beneath the label, for while federalism originally stood for the simple notion that our “federal” government would share power equally with regional governments as a single political system, which was a unique occurrence that had never actually happened before. Fewer and fewer today understand that in its simplest terms.

When all the delegates gathered in Philadelphia in summer, 1787, they shared the same general view just stated, which is why they quickly dispensed with the attempt to strengthen the old Articles of Confederation and began devising a whole new plan of government… from the ground up. James Madison of Virginia and Alexander Hamilton of New York were both noteworthy in steering the convention in this direction and ultimately drafting it. It would take almost three years of debate and old fashion arm-twisting back in their home state assemblies, taking until May 1790 before all 13 states would finally sign on…but only after list of additions to the original Constitution (as-written) had been agreed to. The men who caused those additions to be written were called “anti-Federalists”, a name they did not give themselves, but attached to them by the press.

This bevy of public debates in city newspapers would become a part of the national record, highlighted by the famous Federalist Papers, largely written by Hamilton and Madison, under the sobriquet, Publius. Today it’s recognized as the history of the ratification debate, when in fact there were dozens more opinions offered. (See the much longer list here).

And those debates resulted in the Bill of Rights being added to the Constitution in September, 1789, after it had already been ratified by 11 of the by then 14 states. As mentioned, most of those debates were fought in the several newspapers around the country, and if you didn’t know, the honesty and integrity of the Press was about the same in 1787 as it is today. Each one had its own particular dog in the fight, not only advocating one point of view, but maligning the other often to the point of libel.

And it was there that the term “anti-Federalist” first arose, as defining any argument against ratifying the Constitution-as-written. Wikipedia reported that the great patriot from the Revolution, “Give me liberty of give me death” Patrick Henry, actually voted against ratification in 1789, but failed to mention that the Virginia Assembly voted for it once the Bill of Rights had been guaranteed. Nor did Wiki say that those labeled “anti-Federalists” denied that they were ever against the Constitution, instead saying the Constitution didn’t go far enough, especially in protecting individual “civil rights”.

(This incidentally is how Wikipedia reports most of its history, so unless you are simply interested in factsheet info such as so-and-so’s birthday, keep in mind its general biases.)

In the end, the anti-Federalists won, for as just mentioned, the Bill of Rights was added to the Constitution in September, 1789 as Articles I thru X, and sent out to the states for ratification which would take another two years, December, 1791, for that ratification process to be completed…which should give you some idea just how slow the deliberative process can be for what should have been a no-contest set of amendments. Since Virginia was “agin it” before they were “fer it” the history of the politics of their process (G Gordon Hylton wrote an important 40-pg history, “Virginia and the Ratification of the Bill of Rights” in 1992 for the Univ of Richmond Law Review.) provides all sorts of insights.

Keep in mind, those ten amendments saved the federal Union on more than one occasion, and may be instrumental in rescuing it through this latest crisis, which, after all is said and done, may be the most existential of all constitutional crises the Nation has every faced. (Yes, even more than the Civil War.)

 

So, John Adams and Alexander Hamilton were the foremost spokesmen for a one-party system, when it should have been obvious from the “Federalist debates” and the adding of the Bill of Rights that virtually every aspect of government invited spirited and honest philosophical disagreement that reached into the soul of every citizen based on basic human understanding that went beyond mere political arguments and were driven by education, class and wealth, vocation, and religion, many simply not negotiable. A one-party state invited class and rank distinctions, which we now knows reserves slots and special protections in the ruling class for the least-deserving of individuals, from John Quincy Adams of one sort, and Hunter Biden of another.

Technically, it’s hard to imagine a government built as America’s was designed, from the ground up, and where the federal government was designed to be the last platform, not the first platforms, towns and states, the people had built as much as 150 years earlier, could end up as anything but multiple parties.

 

It seems America has more or less decided on two parties, although almost from the beginning the struggle has been on-going to secure greater power for the last-born, the federal government, at the diminishment of the birthrights of the first-borns; the individuals, towns, cities and states.

Both of our current parties have sat atop the roost in being able to control that power, the Republicans generally from 1865 to 1932 (67 years) and the Democrats from 1932 to the current time (90 years), each era marked by intermittent popular interventions at the behest of the People, of the out-party to flush away the excesses of the in-party, proving the survival-instincts of the society is still intact.

Over most of those years, The People had served as “quality control”, stepping in from time to time, flushing the pot. The Republicans fell because they had become too wealth and rank conscious, not unlike the original Federalists, only with a flair for dinner attire.

It’s the predictability of those flushings that seems to be in peril these days, for when the last voter-supported flushing of the system seemed to be just what the Peoples’ doctor ordered, in 2020, the in-party simply (and rather nakedly, in that they got caught) circumvented all pretense of law and denied the People their choice.

I won’t dwell on this event here, but it is largely the reason this discussion is being undertaken now, in this place and this time. It’s the autocratic one-party elephant in the room.

Alexander Hamilton was the titular founder of the Federalist Party, also under his belief it should be the only political party. But he was not a Puritan. When George Washington stepped from power in 1796, Thomas Jefferson had already formed the Democratic-Republican Party in 1792, to serve as an opposition party to the Federalists, who, it was hoped would succeed Washington. Washington leaned Federalist, but being larger than life, felt he didn’t want to take sides in a debate that had existed from the beginning. So John Adams would succeed him in 1796 and be America’s only Federalist president. That party fell from power in 1800 with the election of Thomas Jefferson, putting the Federalist Party to bed forever replacing it with the next three presidents, Jefferson, Madison and Monroe, thus ending what some call the American classical era, where all the presidents were veterans of the Revolution. Some would argue that the only lasting Federalist contribution besides Hamilton was John Marshall, who in Marbury vs Madison, 1804, invoked the doctrine of judicial review when the Supreme Court invoked its right to declare acts of Congress unconstitutional.

I think early on historians who wrote textbooks for high schools and college freshmen found it difficult to write about those early histories built around concepts that might have been confusing or boring (or both) for young minds, so instead conveniently pigeon-holed that early period into just “the Founders”, meaning those first 38 years.

Although remembered as a paradigm of historic virtue, which it wasn’t, this rendering of the first 38 years did set into stone the key cornerstones to our Republic to be first learned as a classical period of wisdom and harmony, which again, it wasn’t, but in doing so secures in the young minds full of mush a body of evidence that would have to be overcome to turn their minds away from the original purposes of the Founding,  which originally was taught as a miracle, as one of the most magnificent of blessings from God.

I still subscribe to that as both a truth, and the proper way to teach it.

This should be their first impression, then let time, further study and experience, modify those original teaching. Sunday schools taught the events of the Book of Genesis in basically the same way. Teach the mystery first.

It’s not unlike the child who, once taught the 6th Commandment, “Thou shalt not kill”, then only learns as an adult that its true translation is “Thou shalt not commit Murder”. That child walks away with a different view once his/her reasoning abilities had matured to handle to the difference. (The self-righteous Southern Baptist and rumored fine lawyer, who could parse word meanings like no other, it was rumored that Bill Clinton often repaired to his closet, where Christ invoked us all to go to pray in private, and then papered his closet’s walls with legal briefs having to do with all types of sexual encounters, arguing that none of them violated the 7th Commandment. Personally I don’t believe he was ever able to summon up that level of introspection of fear of God since puberty, so don’t believe the fable.) With the young minds, this had been a teaching tool of American schools to teach all sorts of things to the young, especially history much like churches taught the Decalogues. It is the same today, only it is no longer the churches, nor even the People in their schools, who get first crack at the children.

It is the One-party state, sellling all sorts of kitty-crack to be expanded as they grow older.

The anti-Federalists were not a political party. They simply believed the greater power should reside with the states (and the People) and not the new federal government, and believed the Constitution could be used and abused simply by redefining certain terms that could confer greater powers to the federal government in the future. After all that’s what lawyers were wont to do even in the 18th Century. They also understood the significance of a governing body that was three arms-lengths away from the People, while states officials were only two arms-lengths away, and cities and towns and their executives only one. They also knew lawyers much prefer to write rules from an echo chamber three-arms lengths away.

Everyone who reads this knows that has been exactly the truth almost all those 245 years.

What we also know is that over that 245-year history, those opening three lines of the Constitution, “We the People” has been rendered less and less significant to the millions who now manage the government, elected and employed.

 

John Adams and Alexander Hamilton, the Federalists

Adams was a fine lawyer, a Puritan in his formative years, morally upright to the point of eccentricity (which was generally believed only to be found in virgins making ready to take the vows), unbending in his beliefs, but also with the annoying habit of never having an unuttered thought. Obnoxious. But he had been the driving force in Philadelphia in 1776 to push the Continental Congress toward the Declaration of Independence, so headed the Massachusetts delegation in the Constitutional Convention. I’ve always liked his cousin Sam better, so I confess a prejudice. To the people of the several states, he was a rotten president by all accounts of the by-then 16 states and was not re-elected for a second term; winning only the (7) northern Atlantic seaboard states, while Thomas Jefferson won the other 9 states, by an electoral college margin of 73-65, but a vote margin of 61.4% to 38.6%, which should give you all some insights as to why One Party-staters today would like to get rid of the electoral college.

Alexander Hamilton, the Party founder, on the other hand was scarcely over 30 when he made his major contributions to the The Federalist Papers that largely caused the Constitution to be ratified, but because of the Federalist Papers he was probably viewed in a more positive light in those Atlantic seaboard state. Only he never got a chance to run mainly because Adams never mike him, and Hamilton saw himself as a king-maker, not a king.

Before all that, still in his 20’s, he served four years as aide-de-camp to General Washington, but desperately wanting a battle ribbon, the General gave him a command at Yorktown. He was the first Secretary of the Treasury at a time when that was the most important position in government outside the presidency, his face firmly affixed to our 10 dollar-bill. A brilliant monetary man, he set the United States on a fiscal course that guided America’s money management until Wilson and FDR would decide to restructure it in keeping with their more modern ideas of Big Government in the 20th Century.

But Hamilton was also very ambitious and headstrong. I’m not sure what the 1800’s version of “horn dog” was but Hamilton was enmeshed in more than one scandal with the ladies, which is still difficult for 20th Century lotharios to get a mental picture of, when girls could crawl in and out of the back seat of dad’s Ford inside 30 minutes. (Outside of tavern wenches I still cannot picture a lady of that period getting out of even her first layer of duds in that same amount of time, although I’m told French courtesans were Olympic-quality in their skill sets.) Eventually Hamilton’s wicked tongue would catch the ear of Aaron Burr, Jefferson’s VP, who would challenge him to a duel in 1804, which he lost.

As much as Hamilton disliked Adams they both disliked Jefferson more, only Adams and Jefferson had reconciled somewhat in later years, both even deciding to die on the same day, July 4, 1826, Jefferson at 83, Adams at 90, on the 50th anniversary of the Declaration of Independence. (Never believing in coincidence Scholars still debate their mutual collaboration in this.)

But Thomas Jefferson and Alexander Hamilton didn’t like one another. At all.

But even they, while never intentional I’m sure, were able to extend an important handshake.

Modern conservatives (of the William F Buckley National Review school) liked Hamilton more than they did Jefferson, who they considered to be a romantic, and also a little too rural agrarian in his sensibilities. They saw Jefferson as a little too much the aristocrat; landed upper class, best schools, Renaissance man, inventor, philosopher and intellectual, architect, and builder of universities. Hamilton, on the other hand, was self-educated, of questionable parentage, rags-to-riches, but also intellectual, though less lofty and more pragmatic, very ambitious, viewing the world though the eyes of urbanity and not the rolling hills of Virginia. But he was killed in a gun fight. Hamilton was a man of ambition, when “ambitious” was a term of scorn by the upper classes, as one who, in the English sense of the day, was always trying to rise above his station…without the invitation by his betters. So there had to be something else, founds in his letters and writings that drew modern conservatives to him.

But it was Thomas Jefferson who actually betrayed his class in the name of Liberty (“We hold these truths to be self-evident…”) both knowingly and willingly, (which no modern establishmentarian would ever do) as did other southern colonial leaders who put their John Hancock’s on the Declaration in 1776. They were all considered in the south as men who had betrayed their class, which these days does not sound like a very Republican thing to do. Charles Beard, a Wilson-era Progressive historian (who cost me an A my last semester at university because I told the prof on the final exam Beard was full of baloney, and explained why) attempted to show that these men started the American Revolution against the King for economic gain and nothing else, proving Beard was, in fact, full of baloney. Think about it. Imagine John Kerry deciding that he would risk all he owned, go into hiding for seven years, lose all his friends from Yale and down at the Filson Club, on the chance that this new ragtag group he’d signed up with could actually defeat the greatest army in the world…all for an ideal.

Yes, think about it. What are the percentages…especially if you’re a Beta male? Beard was a progressive fool (but I repeat myself)…because he could never understand or even consider the greater personal courage it required to look your own class(mates) in the eye and deny them…over a thing as trivial as the dignity and rights of a bunch of low-borns….a thing, by the way, no left-winger has been able to do since Whitaker Chambers quit the Communist Party in the 1940s. Beard was a cynic about the nobility of human ideals, as are most leftists, but still, Jefferson’s constitutional views have been trolling around like little spirochetes in the venereal version of leftwing American political theory for two generations, at least.

While intellectually I favor Hamilton more in Constitutional matters (which was his baby, not Jefferson’s, anyway) I will always measure Tom Jefferson for the unquantifiable courage required to place his ideals of human liberty and dignity over his comfortable station in life. And to my now-departed friends at National Review Jefferson also did (still does) a thing that no conservative or constitutional writer has ever been able to do since, and that is make intellectuals around the world weep over this little-understood and new-found notion of liberty. I’ve seen it, and know this to be so. With one simple phrase…”we hold these truths to be self-evident“…he answered a question scholars of the old Soviet Union had been seeking for over a generation. It was they who pointed this out to me, not the other way around, that the operative word of the entire preamble to the Declaration is “self-evident”, meaning that even Ivan Ivanovich (Homer Simpson) could figure out how to “pursue life, liberty, happiness without permission of state.”

I have since renamed that the “Homer Simpson Clause to the Declaration of Independence”, for it defines the primary purpose of the “more perfect union” laid out in the Constitution.

With that, Jefferson’s language also brought about the one and only handshake between himself and Alexander Hamilton, about which they both agreed. While I doubt they ever physically shook hands on anything, they would agree that the Constitution was written for the common man in his pursuits and not just for the social elites in their pursuit of theirs….which seems to be the more common political theme these days.

The Blue GOP Diaspora, from “the Doctrine of Liberty” to Something Else

Take a look at the most recent Red-Blue political map of the United States, better still a county-by-county view after the last election  (2016). Take note of the blue, for what you see as the wellspring of leftism in the United States today, the northeast, which until around 1914, was the home of the intellectual soul of the Republican Party as it was defined by the Doctrine of Liberty, just mentioned.

 

Curtis’ “Doctrine of Liberty” was a principal source of teaching material in American public schools from the end of the Civil War up through the beginning of the Vietnam War, at least in fly-over country. It was the Republican Party’s original brand and while the Party leadership surrendered quickly after the Civil War, the People and their schools never really did until the federal government took over public education in the 1960s with federal funding, which became a major strategy to subordinate state and local sovereignty to the all-power dollars of the federal government.

The Boomer generation was the last to have been educated under the Doctrine of Liberty so you should not find it surprising that my generation is the one who has saddled up for one last ride to spare our grandchildren the expense of taking this all back with blood forty years from now, by putting an end to this downward spiral far too many Republicans seem content to ride along with.

The Handshake, Redux

I’m not a Roman Catholic, but when I can find an old cathedral I will worship there on Sunday just so I can watch one of the most ancient of handshakes, the Eucharist, take place, a process that is over fifteen hundred years old, but is still no different than the original handshake that goes all the way back to St Augustine, and through them all the way up to both Jefferson and Hamilton…and now, to we few who try to protect those ancient ideals of human dignity, liberty and reverence for the Creator, as Jefferson called Him.

Just look down at those shoulders we all stand on and you will understand. Even if you have a modern gripe with Christianity, there are Christian shoulders there somewhere underneath your feet. Many in fact. It’s from those Christians the entire ideal, the Prime Directive of the Original Republican Party is found, which is that that those moving up the hill should always reach back down and offer a handshake, a reciprocal handshake, to those at the bottom, just beginning that upward climb. After all, all you’re doing is shaking hands with your own ancestors.

Ashamed of them? The modern godless Left is. This is what defines them.

We conservatives consider it our duty to offer that handshake because someone, somewhere offered it to one of those shoulders we stand on, thus putting us where we are. It’s that simple. The Republican Party stood for gratitude if it stands for anything…and as we grapple with tax policy, health care, the environment, we never lose sight of that simple foundation, someone else’s shoulders, and the simple, even easy (for most) duty to always extend that hand.

Secession and Nullification

Secession was tried and failed in 1860, so a really small-witted allegedly “conservative” guy from California I used to know, said that “just saying no to the federal government” was decided in the Confederate States vs Lincoln case in 1865. So I reminded him that actually that was trumped by American Colonies vs George III in 1782.

“Secession” is merely a form of nullification of contract by the ancestors of the original signers of that contract who’ve decided they no longer wish to continue with that contract. It invites armed conflict, as Clausewitz stated, “War is the continuation by other means.”

So, the last word on nullification of federal power or law is that there is never a last word. Other states, Yankee states, had considered secession as well, though not over slavery. Even parts of states have attempted to secede from their mother state. East Kentucky tried it at least 2-3 times when I was a kid simply because it was Republican while the rest of the state was Jim Crow Democrat. As a law student I interned with a state environmental agency under the first Republican governor since the Civil War.

Logically secession always seemed like a silly gambit, which in the South in 1860 was driven by the aristocratic vanity of the few at the top, the large plantation owners and their massive slave populations. Not too different from France, their entire culture was defined their upper class. One can only wonder what would have happened had they not fired those first shots at Ft Sumpter. With a new president which the Washington establishment didn’t really like, overseeing a divided government, and a military just shorn of it finest officers (all to the South) and a none-too competent military leadership to replace them, the Federals were in no position to invade, with barely enough troops to protect the new borders with the new states’ Confederacy, especially with the most power of those states just across the Potomac River. Most experts would have wagered, using European history as a marker, that this “coming-war” would quickly have devolved into a Treaty commission somewhere warm and pleasant, and in time a settlement would be reached, Lincoln most wanting to preserve the Union, Davis most wanting to preserve slavery, the threat of the loss of which being their legal notion of their states’ rights to leave the original union in the first place.

But then, the American people chose sides, and by a preponderant margin, over 2 million, the farmsteads of the north, from Maine to Minnesota, emptied of young men who had heard their preachers rail against the sinfulness of slavery since they were children. Besides, life on a farm in Indiana before the advent of radio and Tommy Dorsey was a bore. They could get out and “see and do things”, which again, is an American invention. (Nearly 600,000 of them would die or be wounded after having seen and done a few things.).

“Nullification” is the simple act of refusal by a state or its people in sufficient number to obey a federal law they don’t like. Whether nullification works depends entirely on the willingness of the people effect by the federal action to make it work.

So, of course nullification is possible, since all it requires is the will to do it.

The  anti-nullification deniers’ argument is predicated on four points:

  • States don’t have the right to nullify unconstitutional acts of the federal government because our Constitution doesn’t say they can do it; ( VB: Of course they do)
  • Nullification is literally impossible; (VB: Of course it isn’t)
  • The Supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says;  (VB: Of course it doesn’t, just ask the Supreme Soviet)
  • James Madison, Father of Our Constitution, opposed nullification. (VB: Of course he didn’t)

I only want to add a little to Points 2 and 3, for by “impossible” the lawyer who made that argument can only be saying that a law is self-enforcing, much as Madelaine Albright believed the treaty she negotiated with North Korea to halt nuclear testing to be. There is an element of isolated naifery in that position.

Secondly, the Supreme Court not only is not the Final Word, it can never be the Final Word. It is only the final legal word, for the politics of the issue can always be settled by a different means. (see Clausewitz, above).

But consider these other types of nullification that are really just a little outside the scope of legal debate:

Nullification by Brinksmanship

Witness the attempt by South Carolina to nullify the 1828 Tariff Act. Constitutional scholars argue that by the two preconditions to “legal nullification,” South Carolina was acting illegally for they attempted to nullify a constitutional law, one which applied to all the states equally. But because Andy Jackson called up the troops instead of sending the case over to the Supreme Court, with sabers rattling, Congress passed a more suitable tariff bill. The troop  invasion was called off and South Carolina repealed their nullification act. Though acting illegally, South Carolina still got what she wanted, which was just as effective as a legal nullification, I suppose.

Moral Nullification

The Fugitive Slave Act of 1850 arose from the Compromise of 1850, so take a second look at that word “compromise” especially as Democrats use it today. To placate the South, Congress tried to shut down the Underground Railroad, setting loose hundreds of bounty hunters into the North, ordering federal marshals to arrest and detain fugitive slaves, (under penalty of law), forbade anyone to assist fugitive slaves, and denied any captured slave access to any court for habeas corpus (so I assume a lot of legally-free slaves were put back into the “system” if found without their papers).

In 1854 the Wisconsin Supreme Court declared the Act to be unconstitutional (thus making Wisconsin the first “sanctuary state” I guess) but then lost in front of the Supreme Court in 1859 (Ableman v Booth). The High Court (under Taney, yeah, that Taney) ruled that the state courts could not issue a writ of habeas corpus to free a man in federal custody accused of violating federal law, i.e., aiding and abetting a slave to get away from slavery…which this slave did anyway. A state’s right to nullify on the basis of a a deeply held moral position was denied.

But in 1850 the Vermont legislature passed a law ordering state officials to assist rather than arrest fugitive slaves, effectively nullifying the Act there.  After huffing and puffing and threatening armed intervention the Feds did nothing about it.

There were also acts of popular nullification during this period, such as juries refusing to convict people arrested and charged with violation of the Act, of which there were numerous.

Why nullification efforts against this Act are important is that they were based on irresolute moral principles that stood exactly opposite to those of the federal law. I’m not sure what citations the Wisconsin courts used to order the release of Mr Booth, the federal prisoner, but in the end Wisconsin invoked a de facto right of nullification based on its deep opposition to slavery, and since there were almost assuredly Christians still in Wisconsin in those days, their deep Christian opposition won the day.

Now, compare to Roe v Wade, where the Court, acting as a legislature, created a universal right to an abortion, thus taking away the historic right of the states to decide when and if abortion could occur. In my opinion the Court acted unconstitutionally, only who can challenge, other than a future Court? The entire constitutional framework was shattered.

I don’t want to start a new (actually rather old) legal argument but rather point out that a type of popular moral nullification against Roe still moves apace.

You see, Roe v Wade so assaulted the moral fiber of our society, much like the Fugitive Slave Act of 1850, that the issue is more vituperative now than it ever was in 1973. In 1973 no one in Georgia cared that someone could get an abortion in New York, and no one in New York cared that no one in Georgia couldn’t. America now minds other people’s business with regularity, which the whole ideal of federalism implied they wouldn’t do across state lines.

So Roe v Wade represents a kind of moral nullification which goes to the basic tenets expressed by Jefferson in the Declaration. This kind of nullification can sit alongside the Wisconsin de facto nullification of the Fugitive Slave Act, but each having an opposite result inasmuch as the one in Wisconsin was used to protect an immovable moral principle (against slavery) while the other assaulted equally immovable moral principles. (Roe’s effect, if not its purpose, was to create a competing ethos with Good, essentially granting Evil an equal seat at the table, something leftists do well when given enough political leeway).

It’s ironic  that the Wisconsin Court’s attempt to protect strongly-held moral premises were deemed unconstitutional ,while abortion-in-your face is de jure constitutional since no one knows how to countermand a law written by the Court.

But while in Wisconsin only one man in jail was involved, under Roe millions of unborn are involved every year. But slowly Roe is being nullified-by-practice, for every year fewer and fewer abortions are performed in fewer and fewer locations, today requiring a clearly pro-abortionist government to make broader and broader strides to actively market abortion as a good thing, by making it both desirable in the popular culture on the basis of convenience and vanity, and free under Obamacare. Still, it’s future does not look good, since, for one, it has hitched itself to a falling star; statism.

So, how a law plays out in the hearts and minds of men matters. Also compare the Court’s ending Jim Crow with Brown v Board of Education with the Court making abortion universal with Roe. By ending Jim Crow the Warren Court appealed to higher laws in individuals’ souls than the Jim Crow laws invoked to justify segregation. Once understood the public came around. in part because most southern Christian women never completely bought into Jim Crow in the first place. It was a guy thing, mostly. (I’m from that time.)  So the process to undo Jim Crow took no more than twenty years, aided in part that by the 1980s, almost 100% of racism in America had migrated into the Democrat Party’s plantation system.  By contrast, when the Court in Roe imposed acts contrary to deep moral understandings, the people rebelled reflexively so that, after a twenty year love affair, they went the other way, away from it, which continues to slide. Other than leftwing promoters like Planned Parenthood, the bulk of true pro-abortionists are about the same size, and probably the same demographic, as Sandra Fluke’s slut army.

Popular nullification of any law or form of government is impossible to get one’s arms around, yet it’s real. The best example is the Soviet Union, who for years filled its gulags with “refuseniks” only to find still, nothing worked. Stalin called it ‘wrecking” but in the end it was simply the people, almost all the people, refusing to go along in millions of different and subtle ways, denying the State the things it wanted to achieve. This is probably the ultimate nullification, but certainly not the most preferred, but as Jefferson intimated, it operates according to natural law.

So, it’s when the government, with the help of the High Court, or without it, attempts to go against the moral grain of a society, that nullification works best, invoking Jefferson’s words to best express this sentiment:

“…That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Jefferson’s invocation in the Declaration is as close to a Final Word as you can get, for it lays out the moral right and power, given by God, for a people not only to nullify a tea tax, but permanently separate from the King who imposed it. It is a hill upon which men and women will plant their flag.

 In-Your-Face Nullification

Several states have passed laws authorizing various levels of marijuana use nullifying federal anti-marijuana laws and regulations. Every user in those states are under notice that if they come to the attention of federal law enforcement they are on their own. But in most of the states where marijuana use is legal they are so low on the list of federal priorities, such as trying to smuggle assault weapons into Mexico, or finding out-of-code downspouts on houses, to be able to bother.

Should the states license or open their own marijuana storefronts, it will be curious to see if the feds will then say “enough of this” and move to shut those stores down, or, simply make sure they get their cut of the taxes. The day the federal government places an excise tax on marijuana will be the day they have conceded the nullification issue. That day is looming because of the potential billions of dollars of new revenue involved.

It should be clear why no Congress and no Supreme Court ever wants to have to try to make a Final adjudication on this scholarly debate about Nullification, for by attempting to declare it Final, they insure that it never can be, and will more likely come to some unwanted end.

I’ve urged people for years never to make legal arguments about moral issues, of defend moral issues with legal arguments, especially by minding other people’s business.  Apples and oranges. Doing so only prolongs a long and possibly painful temporary end to the matter.

To say that nullification doesn’t exist is like saying robbery doesn’t exist because there is a law against it. No law can prevent me from robbing a liquor store, it can only catch me and punish me.

If they can catch me.

Nullification is the ultimate threat, for only the legislatures can do it, and it is only after they do it can we examine what the government can do to to reset the clock or punish the law-breakers.

I’m not sure when American public schools began skimming over this first era of our history, 1787-1824, but I’m going to guess sometime after the Civil War that the two-party system was sealed as representing America’s popular choice by around 90% of the electorate. Third parties would remain, still do, most with a single issue, such as Nader’s Green Party, the Libertarians, whose single cause is always the worship of Me, both of which have done tolerably well in state elections, often by becoming spoilers for whoever the Big Government or Elitist party might be, usually the Democrats in recent decades, usually because of the shared sense of elitism. It would be the Libertarians who would finish off the Republicans in 2013 in Virginia by securing the win for a Clinton-insider named McAuliffe, who would then rig the election system that would insure the Democrats would never lose again. His was likely the model used in the 2018 and 2020 election heists, all under the guise of states rights.

When third parties were able to effectively insert themselves, they often had disastrous results. Teddy Roosevelt’s split from the Republicans and his Bull Moose candidacy ushered in Woodrow Wilson and the national income tax, plus adding an easily nuanced term “Progressivism” into the national lexicon and a Big Government property every since, easily inserted when “leftist” or “socialist” had become stale or repugnant to voters. And Ross Perot’s personal dislike for George HW Bush threw the 1992 election to Bill Clinton, which ushered in a White House moral collapse of sex extravaganzas and dead bodies in Ft Marcy Park and numerous other dark alleyways….but which were gobbled up by yuppies and young people of behavior worth copying, so which has never really abated. American politics seems to have been stuck in a time warp of juvenile delinquency, promiscuity, self-worship and indulgence for close to 50 years now, only those original delinquents are now in the 70’s; their noses still red from snorts and blood-shot eyes from booze, yet still un-stung by a swat to the back-side, their mouths still unwashed with Ivory Soap.

Worse, they are followed by two generations now of children and grandchildren who have become really scary.

Nearly half of the American adult population represent this three-generation race to the canyon’s edge, who you could call the or Survival-Endangering Party, its slogan “No-God, No-Time, No-How”, this party thriving at both ends of the economic spectrum, although it is nearly impossible to know with certainty since few pollsters are even know to find out what the Survival-Enhancing grown-ups think anymore.

Anti-federalism and States Rights

It seems the Anti-federalists saved America before it was even a year old, because were it not for all those guns we possess (2nd Amendment) it wouldn’t even take a Lenin to subdue a country of lowly peasants.

But there is also the Tenth Amendment which may be our final frontier, both the Left and Right for it declared that “all powers not delegated to the United States shall be reserved to the States, or to the people.”

States Rights has a checkered history, largely because the slave states used it  their absolute Constitutional defense mechanism justifying secession, after the brand new Democratic Party begun in 1824 would cynically use slavery as a wedge to bring both big government and government-for-profit to become its principal purpose. As we know from nature, the opportunity for (more) money can change anyone’s perspective about almost anything.

Eventually the mainstream of the Democratic Party would move from the party of the Worker to the party of the workers’ representatives, the Unions, and doing so, adopting a Big Government model of taking care of what were considered then, and still consider now, races of lesser minds. But first they had to dump the stigma of having been the original states-righters and secession back in 1860. By adopting a Federal government plan to keep the lesser races penned up in ghettos rather than the squalid huts they lived in as slaves on the plantation, but making direct payment of checks and free monthly housing, this would allow Democrats to then take a bow to History as having been the party that relegated States Rights as found in the 10th Amendment to the ash heap of history while also being able, through carefully scripted media propaganda, that it was not they who in fact had for generations turned black people into lawn jockeys in the first place.

So, Just as we began with “America’s first big political hill to climb was whether we should have a one-party government, today “America’s last big hill to climb is whether we should have a one-party system.”…only the moving party today is the government class, leaving the People out of the decision-making process altogether.

It was during the Obama Administration, 2009-2016, that the dangers of an all-powerful federal government, the Executive acting in concert with a stacked, unified Congress was brought home to the American people. It was called the Affordable Care Act, or Obamacare, and while it was aimed at uninsured Americans, approximately 50 million of which about half enrolled, it’s deeper purpose was to end the medical insurance system as America had known it, which Americans liked, and to eventually evolve it into a one-payer plan such as found in England and Canada. While probably intentional, but casually sloughed-off as “regrettable but necessary” collateral damage, much like the fictional Gordon Gekko could have explained the job losses in Sandusky, Ohio when he closed the iron works there, moving its production to China, Obamacare’s new insurance plan destroyed millions of small businesses, who could not afford the newer plans. Many private family-run businesses and millions of their employees became wards of the state, ending up on welfare. And the People and states had no say except for a single midnight vote by a Democratic Congress.

This drip, drip slide away from the old American ideal of free markets toward a newer corporate big business model begun in the 70s- 80s, followed by a similar government re-orientation in the same direction in the 90s, had been watched for a generation by people, later called “bitter clingers”, who were old enough to know the difference. This was our last straw.

But to most Americans who were most negatively affected directly, this was their first straw, their wake-up call. And they stormed out and voted en masse. Thrice.

First, only months after Obamacare was enacted, the People stifled Democrats with the voting of a (spontaneous) movement aptly-called “Tea Parties”, which quickly took the power of the House of Representatives away from President Obama. Still riding with training-wheels, they did this again in 2014 by taking the Senate away, only to watch Obama replace acts of Congress with “his pen” and his executive orders. Then for two years we largely had government by executive and bureaucratic fiat. It was in this period leading up to the 2016 election that the People got early indications that their opposition party, the Republicans, while not marching to the beat of the Democrats, also were not marching to the intended (and promised) beat of their voters, angering many of who had come out of years of hibernation just to throw those Obama Democrats out of Congress.

What they did next in 2016 was ominous, showing up in numbers so unexpected that the Democrats, usually masters of the dark arts of stealing elections, were caught flat-footed, leaving them only to sulk and lament, wearing funny little pink crocheted hats because a total outsider, Donald Trump was elected president “by accident”.

And to scheme, since, from the point of view of the entire machinery of government, 100% of the Democrats, probably 70% of the Republicans, and also “99 and 44/100% pure” of the federal bureaucracy’s leadership, were totally negative to this interloper who threatened to mess up their little fiefdoms. They did everything in their power to blight Donald Trump’s path for four long years.

But Mr Trump was remarkably successful anyway.

Some argue the voters then rested on their laurels in the 2018 midterm, only very little was said about at the time, as the Democrats suddenly took back the House, which they did with an almost 10% increase in voter turnout for off-year elections (52%), when all the success and enthusiasm at that time at the grass roots was with the party of Trump.

The math of probabilities would strongly suggest 2018 was stolen. But it was stolen at the state level and Trump’s federal government could not likely intervene without clear hard evidence, or a loud “We were robbed!” from the voters which never materialized.

But a prelude to 2020, with the obvious good sense that a steal would be in the making, the people went that extra mile in at least catching the robbers-in-the-act in 2020. The People turned in record numbers again!, with 75 million voters compared to 63 million in 2016. Only Trump lost, or so sayeth the official numbers, to 81 millions votes cast for a man who spent less than 100 hours on the campaign trail in the 90 days allotted since he was nominated.

We are not to litigate the 2020 election here, although its “final jury” is not yet in. But at this writing, just after Joe Biden was inaugurated in what will always be known as the most irregular election process ever, not to mention the last free election unless fixed, the Biden Administration is pushing forward to restore all the Obama gains from 2009, before he made that bad miscalculation with Obamacare.

Having regained power, they never intend to give it back. One-party by hook or by crook.

That’s the Situation Report as to where things now stand, the only remaining X-factor of American history going forward will be whether the American electorate will go along with the new circumstances. All they had was “the vote” only nationally it appears it will never be fixed unless things are fixed at the state and local level.

The question then, isn’t whether States Rights, and the federalism it was built on, can recover from 60 years of intentional diminution, but whether the American voters who showed up 81 million strong nationally, can do more than just vote, but organize and change policy at the state level. As I mentioned in the piece above about Nullification there is a distinct difference in impact between legal-nullification and moral nullification.

Every evil criminal thing that those 81 million know to have been done here can easily be erased within 30 years, for the forces of one-party government, have all of them firmly in their grasp; Public Education, K-thru-university, a compliant media, a controlled job market in the private sector and a fully-on-board bureaucratic state class whose only real game of politics will be in their several office compounds, to see who can get the big office with the view.

What Americans, the People, they had not really dealt with since 1941 was that perhaps they would need to commit more to vanquish America’s enemies than simply by voting and saying a couple of extra “God-bless’s” at bedtime. All living memory of that time has passed on except for people like me who were the children of that generation. And our time is short.

This is an inquiry about federalism and states rights, not a rant about political cheating. This is about what the power the People have, and can once they know they have been cheated.

Mainly, do not look for a rescue from the top, but rather for the rescue to come from the bottom, where all those 77 million reside.

For over 50 years there has been a steady process of acculturing the citizenry that all good things come from the top in Washington, DC. Tain’t so, and now you know.

 

In light of the preponderance of evidence of out-and-out theft in 2020 election (and as likely in the 2018 House elections) it can be assumed that baked into all those plans hatched to render the People’s power to affect elections is based on two now-engrained notions; 1) that the People already accept the idea that American government is now a de facto permanent top-down arrangement, and 2) the People likewise accept that “the vote” is the total expression of their power, and finally, 3) we will not go to any greater lengths than voting to change this deplorable situation, so what we will not do is get up off their arses and drive that three miles to the school district, twenty miles to the county seat, 100 miles to the state capitol…to meet face-to-face their elected representatives and demand answers.

In fact, they believe we won’t even walk two blocks to sit down with neighbors and discuss things we can all do cooperatively to fix these messes from the bottom-up.

The tithe

The duty of the people of the United States, as its owners, is to return to paying a kind of tithe of their time, which once was a simple part of citizen’s lives in America’s first century. Meeting with neighbors, then passing those onto local political units, was once a regular part of the citizen’s tool kit to survive against what, even at the local level, citizens knew politicians and bureaucrats would try to do if they thought the Peoples’ back was turned.

As you know, over the years, those tax bills we have been paying have become substitutes, going back more than a century. when al, we ever had to do was let fear trickle up, from the town, to the state house, to the Congress.

Whether you believe in God or not, or believe He had anything to do with the creation of the United States, you cannot wrap your arms around  Federalism unless you can re-acquaint yourself with the hard, simple truth that the most important moving part of the Constitution are those first three words which reads “We the People”

And it all began with literate people who had to learn “how everything worked” in order to start a farm, then a settlement, a town, from the ground-up; from felling trees and digging up root wads, to killing meat, digging dirt and planting seeds. Even Alexander Hamilton never knew that. From the earliest times people knew how their towns and governments worked because they built them, then chose the people who would manage things for them…on their dime.

That is the basic contract of federalism…democratic government. Most of the time you pay with taxes, but sometimes, if you’re lucky, you get to pay with your tithe, for it’s that memory of the tithe you will pass onto your children.

Just as it was passed onto you.

 

 

 

 

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