It is a misfortune that [our countrymen] do not sufficiently know the value of their constitutions, and how much happier they are rendered by them, than any other people on earth by the governments under which they live.
— Thomas Jefferson to John Adams, 1787.
At the heart of Jefferson’s admonition is that notion that the ignorant can’t be free. We live in a time when government-run and government-regulated schools have obliterated any curriculum which would engender the ability to think in a student. Gone are the centuries-old basic methods of rational inquire which began, in Western culture, with the Greeks (whose contributions have been relegated to comic book graphic novels turned movies).
How then is one supposed to learn the value of constitutions? It certainly isn’t from the type of banal civil catechism found in the INS citizenship test. It isn’t from any of the high school government class mantras about branches of government or checks and balances. Nor will one acquire such an appreciation from most law school curricula.
Our present day "study" of constitutionalism is incomplete at best. Our appreciation of the subject could stand to be jumpstarted by the four traditional questions set out by that ancient Macedonian who lived at the time of the forging of the world’s first federal government.
That small percentage of Americans who do bother to think about our form of government usually limit their inquiry to two of the four traditional questions: "what is the Constitution’s form?" and "who made it?" Of course the answer to the first question gets us back to the stultifying discussion of the most rudimentary forms and features of our federal government — the "repeat, after me, class" worship of checks, balances and separate branches. The answer to the second question has been reduced to the simple phrase "the Founding Fathers." But what about those other two questions: "what is it made from?" and "what is its purpose?"
What the Constitution was formed from is a much more exciting and difficult question — and in today’s climate of the unitary decider, one may even say subversive. The answer will bring the conscientious thinker in touch with the line of thought stretched throughout the ages that addresses the interplay between the nature of man and the nature of freedom. Jefferson himself used the succinct and elegant shorthand notation "the Laws of Nature and of Nature’s God" to describe the sources behind the American experiment. A handful of modern thinkers, such as Murray Rothbard, have sought to address how the study of freedom is essential to understanding what our Constitution is and is not.
The final question, that of the purpose of the Constitution, is perhaps the least addressed. Certainly the essential purpose of any constitution is to create a government. But the American constitution endeavors to create a specific government, a form which was believed to help maximize the liberty of those who live under it — a federal government. However, the topic of what are the essential attributes of federal government has been little studied for over a century. That timing is not coincidental.
In his 19th century inquiry into the nature of federalism, The History of Federal Government, Edward Freeman presents the basic features of a federal government as then understood. Most interestingly, Freeman notes that there have only been four true federal governments in history: the Achaian League in ancient Greece; the Swiss Cantons; the United Provinces of the Netherlands; and the United States.
Freeman’s first attribute of a federal government is that it forms one state in regard to foreign nations but consists of many states in regard to its internal governance. As a corollary to this principle, Freeman says that "it is equally unlawful for the Central Power to interfere with the purely internal legislation of the several members, and for the several members to enter into any diplomatic relations with powers." He further notes that where the central government does interfere with the internal governance of the states, they are not sovereign but their condition is mere "municipal independence." Obviously, Freeman was unfamiliar with true meaning of the Interstate Commerce Clause.
Next Freeman shows that there are two types of federal governments. In the first, federal power represents only the several governments of the union and is confined to action upon those governments. "If men or money be needed for Federal purposes, the Federal Power will demand of the several State Governments, which will raise them in such ways as each may think best." Such a federal form is called a confederacy.
Contrary to the confederacy stands the "supreme federal government." This second form of federal government is less limited as it may use its "direct power of taxation, and the other usual powers of Government; with its army, its navy, its civil service, and all the usual apparatus of a Government, all bearing directly upon every citizen of the Union without reference to the Governments of the several States."
Freeman perceptively details that the American government shifted forms from what was established under the Articles of Confederation, a confederacy, to what was wrought under the Constitution of 1787, a supreme federal government. He justifies the transition to the more centralized federal government by claiming that America "found by experience that, without the direct action of the Federal Power upon individuals, the objects of the Federal Union could not be carried out." He then draws on John Stuart Mill (who Rothbard accurately noted was a "wooly minded man of mush") to create the strawman rationale that although the states are obligated to carry out requests which do not exceed federal authority, they "will always lie under the strong temptation to disobey such requisitions, not only when they really transcend the limits of Federal authority, but also when they are simply displeasing to local interests or wishes." This whole line of reasoning dismisses the possibility that a central government would ever attempt to exceed its authority and impose a tyrannical rule over those member states which it is meant to serve. Today we know better.
Perhaps the history and nature of federalism are not studied in the country home to what is nominally the world’s greatest federal government for a reason — that reason being the discovery of how flawed the system has grown.
Today the American states live under "municipal independence." Today war, the depreciation of our currency, oppressive taxation, and the destruction of individual liberties, those lauded objects of the Federal Union, are carried out essentially unimpeded. Today, the full weight of federal power may come to bear on any citizen without recourse to the tenets of federalism. But alas, the specter of "local interests" has been vanquished, so the wooly minded may rest easy.
What Jefferson praised above was not the unitary Constitution which exists today (and is giving rise to the unitary executive) but the many constitutions of the many states. He praised the idea this idea maligned as mere "local interest” not only in a letter to Adams but in his Declaration of Independence. May we come to value what he valued — those local interests which are the only bulwark to the preservation of life, liberty, and property against those who would centralize and oppress.
C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.
