Recently by Paul Rosenberg: No Free Lunch From the Hackers
WHAT WAS "FEDERAL"?
Nearly all of us use the word federal to refer to the United States national government, as distinct from the state governments. This has been an error on our part.
Federal was a description, not a name. It would be fair to use federative in its place. It described a type of government, not a particular organization.
For example, when we say "my friend has a fast car," we don’t think that fast is the car’s brand name – it is merely a description of the car’s acceleration and top speed.
Federal was not the brand name of the government that James Madison designed, it was a description, like fast.
Notice how Madison distinguishes between national and federal. We have lost this distinction, and it is crucial.
James Madison
Federalist #39
The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.
- In its foundation it is federal, not national;
- In the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national;
- In the operation of these powers, it is national, not federal;
- In the extent of them, again, it is federal, not national; and, finally,
- In the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
Madison – six times in this passage – distinguishes between federal and national. There can be no question about this: he is referring to two different things. Federal is NOT the same as national.
We no longer use these distinctions because the US government has become entirely national – we have nothing else to attach the tag federal to.
At the founding – as Madison was writing the US Constitution – the meanings of the words he used were these:
- National powers were those of an independent central government.
- Federal powers were those that came from the contributions of the states.
To be fully precise, "federal" meant a union based on a treaty. It described the type of association that was being used.
Madison distinguishes between national and federal in exactly the same way that we distinguish between a business and a club.
FEDERAL POWERS
You can see from Madison’s words that the structure of the United States government very carefully included federally-derived powers. Madison specifies them as fundamental components.
At its origin, the national government was dependent on the states, and not vice-versa. When the states shifted their positions, the central government, which rested on top of them, had to move along with them.
Understand, this was not a case where the national government was supposed to shift along with the states – there was literally no other possibility. An analogy would be the surface of the ocean moving up and down as a wave passes. The national government rode on top of the federal arrangement – when and where it moved, the national government automatically followed – like the surface of the ocean moving with a wave. There was nothing else it could do or be.
Madison did this on purpose. It was the central controlling and protecting mechanism of his design.
Here is what Thomas Jefferson had to say about the original federal structure of government in the US:
Thomas Jefferson, Letter to William Johnson, 1823
The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States; to make us several [separate] as to ourselves, but one as to all others.
Jefferson, as usual, understood the essence of the arrangement: Separate among ourselves, but as one toward the rest of the world – the outsiders who only saw the surface of the wave, not the waters underneath.
Jefferson (who was certainly not alone in this) saw the centralizing movement of power from the states to the capital as the great threat to the American experiment of liberty:
Thomas Jefferson, Letter to Nathaniel Macon, 1821
Our government is now taking so steady a course as to show by what road it will pass to destruction. That is: by consolidation first, and then corruption, its necessary consequence.
THE PATH OF DESTRUCTION
The federal structure of the US government was abolished in steps, over time. Certainly the largest factors were the confusion, ignorance, apathy and fear of the populace, which resulted in mute compliance. There were, however, watershed moments along the way. The most important of these events were the following:
Marbury v. Madison, 1803
This most important of Supreme Court rulings resulted from a complex case involving dirty deals, a politically-stacked Supreme Court and the entry of partisan politics into the operation of the American republic. By the time it was over, the Court had ruled against the man who wrote the Constitution (James Madison) and claimed the sole right to interpret it. Here's how it went:
- The Federalists, Alexander Hamilton being the driving force, organized into a faction (a political party) that organized and pooled their power.
- Facing a loss of control after the election of 1800, they pushed John Adams to appoint a large group of judges and other officials in the lame duck session before he left office. Adams complied. These appointments were written for five-year terms – long enough for the Federalists to retain control through the next election.
- Not all the commissions could be completed before Jefferson was inaugurated. One of these was slated for delivery to a hard-core Federalist named William Marbury.
- When Jefferson took the Presidency, Marbury's appointment was still in the Secretary of State's office. James Madison, who now filled that office, withdrew the appointment for precisely the reasons you'd expect (being based on dirty dealing), and went about to appoint someone else.
- Marbury ran to the Supreme Court, which was entirely composed of Federalist appointees. He demanded to be given his office.
- In a complex ruling, the Court (led by John Marshall) ruled that Madison was wrong to withhold the appointment, but that this didn't matter, since the underlying law from 1789 was unconstitutional.
- The shock of ruling against the author of the Constitution aside, u2018Marbury' brought up the important issue of constitutionality: Who decides? Even if we say there is an argument to be made for the Supreme Court to interpret the Constitution, it is NOT in the Constitution. The Court should have said something like this:
Since it has fallen to us to decide such an important matter, we will render our opinion in this case. However, we request of the Congress and the States, that they pass an amendment to the Constitution clarifying this issue.
There is a great deal of confusion related to Marbury v. Madison that has come down to us. This ruling is universally presented in American schools as crucial to the "checks and balances" of the US government. This is deeply misleading.
Judicial review (the Supremes ruling on constitutionality) involves one branch of the national government providing a check on the other branches of the national government.
Judicial Review provided no check whatsoever on the national government as a whole.
The original design of the republic empowered the states to act as checks on the national government. This was the primary purpose of the federal structure. Without it, the national government has no check on its expansion and use of power. Thus it would seem that the states should be the interpreters of the Constitution – after all, it was they who created it.
RULES VERSUS JUSTICE
There is one last and important thing to mention regarding Marbury v. Madison, and that is the enthronement of rules above reality – of legal wordings over justice.
The "midnight appointments" of the Federalists used rules to manipulate the power-structure of the republic and to secure power by unintended means. James Madison, above all people, understood this. He withdrew Marbury's appointment to conclude the abuse that was done to his system.
Chief Justice Marshall, however, ignored the injustice and parsed words instead: He went on at length over the distinctions of "nominate," "appoint," "confirm," and the fixing of seals.
Then, Marshall says this:
The people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness…
The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental.
What Marshall actually says here is that the American people wish not to work so hard defending their rights. He is giving them an excuse to be lazy:
The rules will take over from here on out. You can relax.
Liberty was the primary issue of the founding of the republic; the Constitution was subsidiary to that: it was a tool, valuable only if it helped to secure liberty.
The reversal of the central order – liberty being made subsidiary to rules – dethroned liberty.
Hamilton, Marshall and the Federalists were political power-seekers. To them, liberty was little more than a word that gave them legitimacy; what they really wanted was power.
Madison’s design stood in their way; Marbury v. Madison pulled it apart.
The 14th Amendment, 1868
The 14th Amendment filled a hole in the Constitution by declaring that no state could trample an individual's rights, such as the southern states had done by enslaving black people. (There was an earlier precedent for this, but the amendment was probably necessary.) The key section reads:
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Essentially, the 14th Amendment made sure that the Bill of Rights applied to everyone, no matter what their state government did. This was, in my opinion, a reasonable addition to the Constitution.
The problem with the 14th Amendment is not the text itself, but that people took it to imply the moral superiority of the national government. That is a highly questionable assumption.
THE CENTRAL GOVERNMENT & SLAVERY
When Americans talk about states’ rights, there is an instinctual objection that never fails to grip people – that without central government power, slavery would still exist. The truth, however, is the opposite. And that truth is this:
Every branch of the national government of the United States assisted slavery until 1863. You can verify this yourself; go look-up The Fugitive Slave Act of 1850 and the Dred Scott decision.
While the southern states and the national government were supporting slavery, the northern states fought it: They nullified laws supporting slavery. (Wisconsin was exemplary in this.) The secession resolution of Georgia complains specifically about this:
For above twenty years the non-slave-holding States generally have wholly refused to deliver up to us persons charged with crimes affecting slave property. [Northern state officials] shield and give sanctuary to all criminals who seek to deprive us of this property.
The northern states were the anti-slavery heroes, not the central government in Washington. If your school books implied the contrary, they lied.
The 17th Amendment, 1913
The 17th Amendment took the powers of the states and transferred them to Washington, by mandating the popular election of senators.
Previously, senators were elected by the state legislatures. That gave the states massive power in the central government. It provided a check on the power of the national government. If the states were unhappy with the direction of national government, they could instruct their senators to change it.
With senators being elected directly by the populace, the states were cut-out of the equation. In their place, political parties gained massive power, and nearly all power was consolidated in the city of Washington.
The argument in favor of the 17th Amendment was that state houses were corrupt and that they acted erratically, often leaving seats vacant for some time.
It is certainly true that the states were unruly. This, however, was not a crucial issue; the work of the Senate could continue regardless. Respected politicians, however, did not want to be seen as part of a disorderly body.
As for corruption in the states, that was often true, but the implied idea, that Washington was pristine, was – and remains – a bad, bad joke. But, even now, the moral superiority of the central government is often assumed, probably because many people find comfort trusting in the largest and most powerful thing.
Power always corrupts, but a structure featuring small, separate pockets of corruption is far less dangerous than one featuring a single, large seat of corruption, to which all money is gathered. As Thomas Jefferson wrote:
It is not by the consolidation or concentration of powers, but by their distribution that good government is effected.
The government of the United States remains, but it is of a fundamentally different character than the federal republic designed by Madison. Yet, we all keep saying federal. Not only is this use incorrect, but it has prevented us from recognizing the crucial fact that the American federal republic was stolen from our great-grandparents. This is not a trivial argument over vocabulary.
Deceptions and frauds are accomplished over time by changes in the meanings of words. Sometimes this is done purposely and sometimes it happens because people are more comfortable evading the original meaning. But regardless of how much intent was involved, the meaning of federal changed radically between 1803 and 1917. Our current use of the word conveys a completely different meaning than the original. This change of definition has masked a fundamental turning point in the governance of the American people.
What you do about this – or whether you do anything at all – is entirely your choice. I am merely pointing as best I can to the truth. I will add only this:
If you call yourself an American, be one.
