American Federalism: Erosion
FEBRUARY 01, 1967 by GEORGE CHARLES ROCHE III
Dr. Roche, who has taught history and philosophy at the Colorado School of Mines, now is a member of the staff of the Foundation for Economic Education.
Albert J. Nock once commented, "There must be as many different kinds of democracy in this country as there are of Baptists. Every time one of our first-string publicists opens his mouth a ‘democracy’ falls out; and every time he shuts it, he bites one in two that was trying to get out." One of the difficulties that has arisen to aid and abet the erosion of our American tradition of federalism is this very problem concerning the definition of democracy. Since we are all "the people," it is not surprising that we all think that the "rule of the people" is a good idea. But when we come to discussing what we mean by the "rule of the people," we find it a little harder to agree.
This is a problem of definition deeply rooted in the American political past. Thomas Paine stated one side of the case quite simply in The Rights of Man when he said, "That which a whole nation chooses to do, it has a right to do." John Quincy Adams answered this attitude drawn from the French Revolution when he replied to Paine in a series of articles published in a Boston newspaper in the summer of 1791. Defending the American tradition of federalism and limited government as it had developed, Adams warned in his Letters of Publicola: "This principle, that a whole nation has a right to do whatever it pleases, cannot in any sense whatever be admitted as true. The eternal and immutable laws of justice and morality are paramount to all human legislation. The violation of those laws is certainly within the power, but it is not among the rights of nations. The power of a nation is the collected power of all the individuals which compose it…. If, therefore, a majority… are bound by no law, human or divine, and have no other rule but their sovereign will and pleasure to direct them, what possible security could any citizen of a nation have for the protection of his unalienable rights? The principles of liberty must still be the sport of arbitrary power, and the hideous form of despotism must lay aside the diadem and the scepter only to assume the party-colored garments of democracy."
As Edmund Opitz put it several years ago in THE FREEMAN, the problem of political power is contained in the answer to not one question, but two. What shall be the government’s scope? And who shall rule?1 We have long since decided in this country that the answer to the second question is that the majority of the people shall rule. But this still doesn’t answer the first question as to what the scope of that authority should be.
The confusion in categories between these two separate questions has served to obscure the fact that the exercise of excessive power is objectionable not only when perpetrated by a king-directed government, but also when perpetrated by a people-directed government. Despotism becomes despotism because of the nature of the act rather than the nature of the actor.
Equal in Slavery
One of the early analysts of the American experiment in self-government, who saw much to approve in the system as it unfolded, warned Americans that a majority could be even more tyrannical than the most absolute of European monarchs. Tocqueville speculated that if Americans ever confused equality of opportunity with equality of condition and then used their new found political power to enforce equality of condition, the tyranny of the majority would indeed become a reality. He warned, "Americans are so enamored of equality they would rather be equal in slavery than unequal in freedom." Tocqueville had in mind the unchecked "general will" view of democracy espoused by Rousseau and implemented in the French Revolution. The modern totalitarian states have carried this tendency to its ultimate conclusion by exercising their despotism in the name of "the people" and clothing their institutions in the fullest democratic trappings; for example, "democratic centralism" in the Soviet Union, presumably democratic since it is done in the name of the people, and central in the sense that the government tells the people what to do. In the words of C. S. Lewis’ Screwtape, " ‘Democracy’ is the word with which you must lead them by the nose." Screwtape goes on to suggest that mankind must never be allowed to ask Aristotle’s question: "Is ‘democratic behavior’ behavior democracies like, or behavior that will preserve a democracy?" Screwtape suggests that the final triumph over man will come when the meaning of democracy has been perverted to mean "I’m as good as you."²
If "I’m as good as you" is to be enforced as a principle of political authority, then, indeed, right and wrong are what the majority says they are. In the words of Edmund Opitz, "the antithesis of majority rule is not minority rule but liberty." Liberty presupposes an individual self-rule based upon the assumption of human dignity derived from man’s identity as a creature of God. It is when this principle of human dignity is violated that democracy merges into socialism. What need is there of God or heaven or individual self-rule if the government is to be omnipotent and to provide a heaven on earth? Socialism as Hegel defined it is quite literally "the kingdom of God without a kingdom and without a God."
Totalitarian Controls "for the Good of the People"
Once the basic error is made that anything is all right so long as the people want it, it is a small step to believing that anything is desirable so long as it’s "good for the people." "Of the people" very quickly becomes "for the people" whether they like it or not. The twentieth century has seen the development of the completely totalitarian state that justifies any barbarism in the name of the ultimate good of the people. But it has also seen the development of the same idea in the mainstream of Western civilization where we have prided ourselves on being, so we thought, most completely non-totalitarian.
Robert Michels, Graham Wallas, and Walter Lippmann, all products of the enlightened twentieth century and all eager to announce how antitotalitarian they are, have also emphasized what they call the "irrationalism" of democracy, expressing a preference for an elite corps to run things in the name of the people. It need scarcely be pointed out that such a view of democracy is anything but the rule of the people, that on the contrary the wisdom of the people and their self-rule consists in making decisions on a level close enough to them to retain perspective, firsthand knowledge, and control of their own affairs. As we have seen, it is precisely the diffusion of decision-making power inherent in the tradition of American federalism that has most nearly achieved a genuine rule of the people.
Here again, Tocqueville early saw the nature of the problem and warned that "democratic socialism" was a contradiction in terms. Democracy is an essentially individualistic institution and therefore in irreconcilable conflict with socialism: "Democracy extends the sphere of individual freedom; socialism restricts it. Democracy attaches all possible value to each man; socialism makes each man a mere agent, a mere number. Democracy and socialism have nothing in common but one word: equality. But notice the difference: while democracy seeks equality in liberty, socialism seeks equality in restraint and servitude."3
The State Absorbs Society
If the distinction may be made between the state and a society, that society is a composite of the actions and institutions of individuals in areas where the state is not concerned, then it may be said that it is the vice of the Rousseau, French Revolution, "general will" approach to democracy that ultimately the state absorbs society. At the same time, it is the virtue of the American tradition of federalism that it erects barriers to prevent that absorption.
The absorption of society by the state may be measured within our own Republic in the history of the centralization of power that has occurred. The late eighteenth and early nineteenth centuries were a consistent demonstration of the strong determination of the American people and its leadership to avoid undue centralization of political authority. Whatever political infighting occurred during the presidencies of Washington, Adams, Jefferson, Madison, Monroe, and John Quincy Adams, a common agreement on this point was tacitly observed. Some historians have suggested that a break in this continuity came in the age of Jacksonian democracy. But in actuality, the Jacksonian, middle-class entrepreneurs were interested not in the limitation but rather in the extension of social mobility and economic opportunity. They resented monopoly power wherever it might appear, but especially in government.
Yet between North and South, an issue was building that some men foresaw as a danger to this American concept of limited and diffused power. Long before the Civil War, John Randolph warned: "The people of this country, if ever they lose their liberties, will do it by sacrificing some great principle of government to temporary passion. There are certain great principles, which if they be not held inviolate, at all seasons, our liberty is gone. If we give them up, it is perfectly immaterial what is the character of our sovereign; whether he be King or President, elective or hereditary, — it is perfectly immaterial what is his character — we shall be slaves — it is not an elective government which will preserve us."4
Randolph spent his life insisting that power must be limited, and that the surrender of power to a centralized administration was all too often a one-way street. As he once commented, "Asking one of the states to surrender part of her sovereignty is like asking a lady to surrender part of her chastity."
Northern opponents of the institution of slavery, such as John Quincy Adams, also recognized that even such a moral evil as slavery must be allowed to die from its own economic weaknesses rather than be killed with a weapon forged by a great centralization of national power.
But with the passing of the older generation, a new breed, the direct ancestor of the modern social reformer, appeared on the scene. Such abolitionists as Senator Sumner, Wendell Phillips, and William Lloyd Garrison were so assured of their own moral rectitude and their capacity for running the affairs of all mankind, that they were willing to gather and exercise any amount of power to pursue their goal. Perhaps it is such men that Ambrose Bierce had in mind in The Devil’s Dictionary when he defined a conservative as "a statesman who is enamored of existing evils, as distinguished from the liberal who wishes to replace them with others."
Even the coming of the Civil War demonstrated a basic acceptance of the American federal tradition on the part of most Americans, both North and South. Yet, there can be little doubt that some "progress" was being made toward the kind of centralization that could ultimately prove harmful to the American federal tradition. Some advocates of states’ rights have a valid point when they suggest that the passage of the Fourteenth Amendment opened the door to changes in our federal system.
Yet the greatest impact upon the American tradition of federalism that occurred in post-Civil War nineteenth century America probably sprung from the one-party domination that was in effect almost without interruption until the twentieth century. Nationally, the Civil War had produced a monopoly situation for the Republican party. In the repressed and resentful South, local politics came to be a monopoly of the Democratic party. Even some places in the North (for example, Boss Tweed’s New York City) came also to be Democratic backwaters due, in large part, to the reaction against the monopoly situation of the Republican party in national politics. The age of machine politics thus stemmed from an undue centralization of political control.
Monopoly in Political Power
One-party domination of American political life, of course, robbed the Republic of that flexibility and variety that had traditionally been its strength, producing in effect the very sort of monopoly situation in political power that our tradition tries so hard to avoid. A time of tremendous building in industry, communication, and transportation across our rich American continent followed the war. Yet something else came with this building. The story of the spoilsmen in politics and the exploiters in economic life working hand in glove to take the American people for a ride is so well known as to be a commonplace.
Advocates of centralized authority and economic control in the twentieth century look back to the so-called era of Reconstruction and Big Business to point out its evils with great glee and to suggest that those evils are a prima facie case for the necessity of more political control of business. The very reverse is actually the case. It was a monopoly of political power, and an exercise of that power by one element of society, that did the damage.
A half-century of abuses stemmed from this monopoly situation. Boss Tweed and Jim Fiske were all too symbolic of their era. The people began to grow restless in the face of a repressed South and an all-too-often exploited North and West. A generation of reformers began to grow up who misread the problem as one of too little political power rather than one of too much political power.
The late nineteenth century saw the rise of more and more political protest in the Granger Movement, the Farmers’ Alliances, and the Populist Party. The candidacy of William Jennings Bryan in 1896 caught up this protest in a single great crusade composed of all sorts of dissident elements. Even then, most Americans held back from espousing the centralization of political power to achieve social reform. Middle-class America had one of its great strengths in its common sense and remained more than a bit suspicious of the "boy orator of the Platte."
The Progressive Backlash
As we moved into our present century, however, yet a further change in American attitude was about to occur. As a plutocracy grew ever fatter in its monopoly control of political power, it came to dominate more and more of the American social structure as well. This always happens as power is centralized and the state begins to swallow society. But the old traditional leaders of American society, the middle-class businessman, professional man, and clergyman, were increasingly unwilling to allow this to happen. They decided to fight back. Thus, the Progressive movement came into being. The underlying rationale of this middle-class protest movement was an attempt to break up a monopoly of power and to reinstitute the American tradition of diversity, social mobility, and economic opportunity. The goals were traditional, the means to achieve the goals were not. Political power was to be taken from the plutocracy by giving it to the middle class. The Progressives were hoping to break up a power monopoly by creating a power monopoly.
This dichotomy explains the peculiarly Janus-like quality of the Progressive movement. Within both Theodore Roosevelt’s New Nationalism and Woodrow Wilson’s New Freedom we find the conflicting demand for greatly increased and centralized political power as the means by which a decentralized, traditional, individualistic system might be reinstated and preserved. The tragedy of Progressivism is that these well-intended people were to learn that such ends cannot be achieved through such means. As the state grows bigger, the individual must grow smaller.
No more graphic demonstration of this could be made than the example of the legislation of the Progressive era itself. Woodrow Wilson epitomized the Progressive dilemma in a speech to the New York Press Club during the presidential campaign of 1912: "When we resist the concentration of power, we are resisting the powers of death, for concentrated power is what always precedes the destruction of human liberties." A fine sentiment and a correct observation, but Wilson and the other Progressives were doomed to failure because their weapon against the concentration of power was the concentration of power.
A Bias Among Historians
Once launched upon the centralizing road during the Progressive era, America has seemed unable to reverse the process. The crisis of the First World War, the futility of attempting to dictate morality to a nation with the new commandment, "Thou shalt not drink," the crisis of depression and the aftermath of economic distress, the great new burst of centralization and social planning of the 1930′s, the renewed crisis of the Second World War, and the Cold War of the past twenty years —all form part of a continuing pattern of centralized political authority.
This tendency has been aided and abetted by a new philosophy of government running in a contrary direction to traditional American political life. The Progressive era saw the rise of a group of academic figures and social thinkers of all disciplines who attempted to re-examine the American past in terms of this new bias favorable to centralization. Our colonial history and constitutional era have been re-examined by such historians as J. Allen Smith and Charles Beard and one of their most outspoken current disciples, Merrill Jensen, to reach the extremely present-minded conclusion that the Founding Fathers were a group of economic bandits on the make who suppressed the strivings of the common man. The remainder of American history is similarly utilized to make Jefferson, Jackson, and a number of others well within the scope of the American federal tradition appear as political centralizers and economic protectors of "the people" in a view of history that reverses historical continuity, begins with the New Deal, and reaches backward in time to prove that it was ever thus and so. As Forrest MacDonald, Robert Brown, Bray Hammond, and any number of other competent historical authorities have made clear, such was not the case.
Crusade for Centralization
This fact has not deterred the continuing development of the rationale for further centralization of political power. The intellectual journey from the milder collectivism of the Progressive era to the steadily increasing collectivism of our own time is clearly evident in the evolution of a number of thinkers. Walter Lippmann serves as a good case in point. In 1913, Lippmann’s A Preface to Politics referred to the state as "the supreme instrument of civilization." By the time of the early New Deal, Lippmann had come to believe that the state must keep people "economically secure" to preserve democracy. Lippmann’s prose is filled with sympathetic references to the people and to tradition. However, the earlier Progressive Lippmann’s assumption that the exercise of state power was justified through popular participation in government had given way by the mid-50′s, as for example in The Public Philosophy, to the belief that the people could not do the job and had to be limited to a franchise that gave all power to a chief executive and only retained an after-the-fact right to approve or disapprove the executive performance.
The list of those urging such a centralization of authority and responsibility is a long one, and the progress of the idea has been rapid. Yet, occasionally, the American people have resisted this usurpation of their authority, as for example in Franklin D. Roosevelt’s resounding defeat in the 1937 "Court packing" scheme. The people, with Congress as their representative, made quite clear their belief in the principle of constitutionally limited and dispersed powers. The nature of this successful revolt against Roosevelt seems all the more important when we recall that it followed on the heels of a great victory in the 1936 elections that had demonstrated not only his personal popularity but that had given him a large majority in both houses of Congress. The report made at the time by the Senate Judiciary Committee remains a ringing affirmation of the American principle of freedom under law.
Where It Leads
Such temporary revolts against centralization should not disguise how steadily the concept has developed. Any number of horrible examples of the fruits of this tendency come readily to mind in the history of NRA or AAA. The Constitutional violations producing the power centralization that occurred during the 1930′s were noted by the Supreme Court in both NRA and AAA. The impact of this centralization upon individual freedom is equally apparent. Tailors arrested, indicted, convicted, and sentenced because their price for pressing a pair of pants was a nickel below the NRA blanket code; farmers fined for planting wheat that was consumed entirely on their own farm; such examples make abundantly clear the sort of thing that happened to the American tradition of federalism.
In 1905, George Santayana viewed the tide of "centralization and reform" then just beginning to rise in this country and warned, "A reformer hewing so near to the tree’s root never knows how much he might be felling." He predicted the course of subsequent events with great accuracy. In Russell Kirk’s summary of the Santayana position, the future is outlined with awful clarity:
Liberalism, once professing to advocate liberty, now is a movement for control over property, trade, work, amusements, education, and religion; only the marriage bond is relaxed by modern liberals. "The philanthropists are now preparing an absolute subjection of the individual in soul and body, to the instincts of the majority — the most cruel and unprogressive of masters…
The traditional balance of power within the federal government has placed Congress in a role of great authority, well capable of limiting executive centralization. American history is filled with examples of that limiting role, a role well suited to Congress since its composition and method of election makes it the natural and direct representative of the wide diversity present within the American federal system. The same period of recent American history which has seen the decline of the American tradition of federalism has therefore naturally witnessed a steady decline in the importance of Congress and a widespread Presidential and bureaucratic usurpation of congressional prerogatives. Control of the purse and the ability to make war are perhaps the most outstanding keys to power and thus to sovereignty that the Founding Fathers centered primarily in Congress. The growth of the Presidential office as the tribune of the people and a steadily burgeoning bureaucracy have come increasingly to subvert that original intention. Alleged "need of reform" and the crises of war and depression have provided the excuse.
If such a key representative of the American tradition of federalism as Congress has suffered such a steady attrition, the concept of states’ rights has fared little better. According to the well-known authors of a widely used American history survey, "states’ rights are now an historical exhibit, maintained by the Republican party." Things may not be all that bad, but the role of central government as the sole arbiter of men’s fortunes does seem to have fewer and fewer obstacles in its path.
The "Four Freedoms"
It is said that a Scottish nationalist who refused to support the English war effort during the Second World War was incarcerated for the duration. When released, he was asked how he had fared during his jail term. He replied, "Well, I had the four freedoms." As you recall, the first two of those four freedoms, which Roosevelt envisioned for the entire world were freedom of speech and freedom of worship. Both these items are specific guarantees written into our own Constitution. Yet the Second World War changed the nature of these guarantees. The Constitution treated these rights as derived from a superior power and thus not to be violated by any agency, government included.
By the time of the Second World War, such rights had apparently become a grant to the people from a beneficent government. What of the other two "freedoms"? Freedom from want and freedom from fear, of course, are not natural rights at all; and, until our own materialistic, reformist, super-centralizing age that somehow expects government to take over all facets of life, they would never have been regarded as any of the government’s business at any previous point throughout our long heritage and exercise of American liberty. In any event, the Scottish nationalist was right. He did have the four freedoms available to him in jail. So might we all.
Meanwhile, how do such guarantees of governmental largess work out in action? One of the most deeply entrenched items in the new centralization of all authority and responsibility in Washington is the Social Security system. In our own enlightened times of the mid-twentieth century, this nation saw fit to penalize a group of peaceful and frugal Amish farmers, who were forbidden by their religion to participate in such a system, and who therefore had not paid the appropriate social security taxes. The government seized the livestock of these simple people for sale at public auction.
Felix Morley quotes a news item pertaining to this event in the new American view of liberty:
As the sale began, a young Oberlin College student turned up wearing on his back a crudely hand-lettered sign that read, "If government can take these horses today, it can take yours tomorrow — Don’t bid!"
He had hardly walked a dozen steps before two burly sheriff’s deputies grabbed him and hustled him off to their car. The gestapo couldn’t have done it more efficiently. The sale went on.6
Surely in our system of divided powers the courts would provide relief from such arbitrary exercise of power, a student of American government might conclude if he were familiar with the American tradition of federalism. That is, he would hold some such idealistic hope until he began to read the discussions of what might be called the judicial "relativity" so common in our age. We now find that even the courts frequently boast of reaching their decisions on the basis of "sociological" evidence, without being "hampered" by legal precedent or traditional interpretations of the Constitution. It would be difficult to imagine an attitude more directly corrosive of the American constitutional tradition of liberty under law than such a view of judicial processes.
Local Governments Diminished
This tremendous interference in the affairs of individuals and localities is both cause and effect of another phenomenon of our time, the frequent failure of state and local governments to do their job properly. Federal interference, of course, is itself a great cause of such a collapse of state and local ability and responsibility. But many of the various localities and subunits of the nation are not without blame.
Whether a local irresponsibility or a national usurpation occurs first is not the point. What is important is that the people composing the membership of the state and local governments and private institutions that must provide the vitality of the American federalist tradition have both the desire and the courage to reassert their liberties and the responsibilities that accompany them. As power has drained from the private sector into the public sector, from the nation at large into Washington, and from Congress into the Presidency, private rights have proven increasingly difficult to maintain. We are told that such a trend is productive of "efficiency" or "modernization," but it might pay to remember that the most notable examples of a thoroughgoing political centralization that the twentieth century offers are the totalitarian experiments in which "efficiency" and "modernization" in the suppression of all human liberty have been the primary results.
The "Service State"
Dean Roscoe Pound of the Harvard Law School coined the phrase "Service State" to describe the assumption of all political and economic functions by centralized government. In such a "Service State" a subtle change has occurred in the meaning of the word freedom. As Professor Hayek phrases it: "To the great apostles of political freedom the word had meant freedom from coercion, freedom from the arbitrary power of other men, release from the ties which left the individual no choice but obedience to the orders of a superior to whom he was attached. The new freedom promised, however, was to be freedom from necessity, release from the compulsion of the circumstances which inevitably limit the range of choice of all of us…."7
If this definition of the Service State seems hard, let a new-styled "Liberal" of impeccable credentials state the case for us. Senator Joseph Clark of Pennsylvania puts it plainly: "To lay a ghost at the outset and dismiss semantics, a Liberal is here defined as one who believes in utilizing the full force of government for the advancement of social, political, and economic justice at the municipal, state, national, and international level."8 No wonder the federal system seems so limited in its objectives and its means to people with such ambitions!
A member of the Atlee cabinet in the socialist government of England a few years ago, Mr. P. C. Gordon Walker, published a book entitled, Restatement of Liberty. It epitomizes much of the present thinking that has received wide acceptance on both sides of the Atlantic: "The new State will also directly augment authority and social pressure by new powers of punishment and compulsion. So far from withering away, as in theory both the individualist and the total State should, the new State, if it is to bring into being and serve a better society, must create new offenses and punish them." A restatement of liberty, indeed!
A concluding article to appear next month will deal with the future of American Federalism.
1 The Rev. Edmund A. Opitz, "The American System and Majority Rule," THE FREEMAN, November 1962, pp. 28-39.
2 C. S. Lewis, The Screwtape Letters (New York: Macmillan Co., 1962), pp. 161-62.
³Complete Works of Alexis de Tocqueville (1866), IX, 546.
4 Annals of Congress, 12th Congress, 2nd Session, pp. 184-85.
5 Russell Kirk, The Conservative Mind (Chicago: Henry Regnery Co., 1960), pp. 508-509.
6 Felix Morley, Freedom and Federalism (Chicago: Henry Regnery Co., 1959), p. 151.
7 Frederick Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944), pp. 25-26.