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Reclaiming Federalism for Human Rights
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Reclaiming Federalism for Human Rights

On June 17, 2015, Dylann Roof infiltrated a historic African-American church in Charleston, S.C. and murdered nine people. His stated intention was to start a race war. Dylan did not succeed, but he did re-ignite controversy over a divisive historical symbol in both South Carolina’s and the nation’s history: the Confederate battle flag. The reaction to Roof’s crime was negative enough to remove the flag from the statehouse grounds, but there are some in South Carolina who still have not accepted that decision.

Last May, rumors swirled that someone from the Spartanburg GOP might attempt to resurrect a squashed resolution supporting the restoration of the Confederate flag at the South Carolina Republican Convention. The Confederate flag is, for some, a symbol of a culture of religion, chivalry, and liberty for citizens. They view secession as the actualizing of those values by proud state governments that resisted what Confederate sympathizers considered unconstitutional intrusions by the federal government.

Opinions of the flag do not divide strictly along racial lines, but they do tend to follow them. I happened to meet an African-American gentleman from the Spartanburg delegation at the convention. I asked him whether he thought someone would raise the Confederate flag issue. He vehemently said that he hoped not. He replied, “They are putting symbol over substance. What does the flag represent that you see in our state government now? There is nothing!”

The veneration of the Confederate flag and other Confederate symbols is symptomatic of an approach to history that fails to connect the dots between a political doctrine and the racial bigotry and oppression that accompanied it. The flag’s supporters point to the federal system outlined in the Constitution as the actual position of the Southern states during the war. Confederate sympathizers, even those who reject white supremacism, often conflate federalism with the Southern cause. This association plays into the hands of critics of the Confederate legacy who conflate federalism with the Southern cause and reject it. Not only does identification of federalism with the Confederacy do a disservice to federalism, but it also ignores the moral and logical flaws inherent in the Confederate position and creates weak points in the policies of the Confederates’ would-be successors.

Modern federalism, according to Kenneth Wheare, refers to a system of government in which the regional and federal government have distinct powers and are equal to each other in supremacy. This definition is different from what the term used to mean: it was used (as with the word “Confederation” in the Articles of Confederation) to refer to a coalition of sovereign nation-states. The Federalist Papers, therefore, represent the Constitution as establishing a mixed form of government, neither wholly federal nor wholly national in every respect.  To perfect the Union, the framers of the Constitution advised Congress and the States to limit the sovereignty of the individual states in the Confederation (that is, the 13 former colonies).

The South wanted each state to be free to do whatever it wanted, without having to consult the interests of other states. The Vice President of the Confederacy, Alexander Stephens, gave the South’s response to Lincoln’s First Inaugural Address. Lincoln had argued that “no State upon its own mere motion can lawfully get out of the Union.” In response, Stephens attacked both the U.S. Constitution and its interpretation by the Federal government.  Stephens argued that the Constitution failed to recognize the natural inequality between blacks and whites. This inequality and the race-based slavery resulting from it were, Stephens said, the “corner-stone” of the Confederacy. Stephens used what he and other rebels saw as irreconcilable differences between free and slave states and the early successes of the Confederacy to argue that the Northern states should let the South secede, and thus dissolve the bond cemented by the Constitution.

That was the political position used to buttress the social institution of slavery and to justify secession. That was not, however, a just, reasonable, or consistent position.

The Southern position boiled down to the argument that their ends justified their means. The Southern course could not be defended on the grounds of federalism, even if by “federalism” we mean the system outlined in the 1777 Articles of Confederation.

Consider the position of the Northern states. For the most part, they had abolished slavery. The North recognized that slavery was incompatible with a free society. The Federal government could reduce the practice of slavery only if they confined it to the States where it already existed.  If slavery were allowed to flourish along the Southern and Western borders of the Northern states, it would pose an existential threat to the liberty guaranteed by free states.

Armed conflict was already ongoing in the territory of Kansas over the question of whether to admit it into the Union as a free or slave state. The Southern states wanted new states to decide for themselves whether they would be free or slave states. The Southern states were unwilling to remain in the Union on terms that would threaten the continuation of slavery or bar new states from participating in slavery.

The “federalist” position was the position of the Republican Party. The party platform specified that they were against the admission of new states that wanted to practice slavery. This policy was necessary for the morality of the nation and the preservation of its Constitution. The plan imposed no new conditions on existing states, and it would have given time and space for emancipation to take place peacefully and fairly to all concerned. But the Southern states would have none of it. Almost immediately, Southern states began announcing their secession from the Union and seizing federal properties.

It was not, nor could it have been an amicable divorce.

Fast-forward to the end of Reconstruction. The US had won the Civil War, slavery affirmed as unconstitutional, and white Southerners, for a time, were denied participation in government. As these former rebels began to regain control of the state governments, they constructed a system of segregation and racial oppression. Minorities saw their natural rights routinely violated as they were relegated into a permanent underclass.  Lynchings, rapes, and extreme poverty were the norm for African-Americans.

The Southern states came into conflict again with the Federal government when Congress began passing Civil Rights legislation. In 1954 and 1955, the Governor of Arkansas used the National Guard to prevent the desegregation of public schools in Little Rock. After meeting with President Eisenhower, Governor Faubus withdrew the National Guard from Central High School, and chaos ensued. Eisenhower placed the Arkansas National Guard under Federal control, and he used State and Federal troops to stop the rioting and ensure that African-American students could enroll. Lyndon Johnson cracked down on the Ku Klux Klan, the most prominent of the white supremacist organizations, and its numbers and violence drastically declined in the decades to come.

The federal government’s interventions to alleviate poverty, while enjoying mixed success, promised relief from the oppression of Jim Crow and its aftermath. Franklin Roosevelt’s “New Deal” policies promising help to the poor won many African-Americans over to the Democratic Party. Years later, after the Presidency of Kennedy, Lyndon Johnson fulfilled many of his predecessor’s promises in both Civil Rights and anti-poverty legislation.

However, every intervention by the Federal government to do good increases its power to harm.

Its interventions in education, the economy, appropriation and use of public land, welfare, and more have extended its reach beyond its competence. From burgeoning debt and human rights violations to the sprawling bureaucracy to new categories of rights for minorities that supposedly need special protection, the federal government’s projects have made it more the oppressor than the savior of the oppressed. “Entitlements” add more to the debt than anything except wartime spending. Government funding and regulation of extra-constitutional projects lead to this expanding and burdensome bureaucracy.

Yet, the critics of the federal government are still burdened with the baggage of slavery and Jim Crow. Opponents of big government need to restore federalism to its proper role as the defender of natural rights. They need to hold federal and state governments accountable for rights violations and empower the government to protect rights. Federalists need to maintain both the distinction and the connection between natural and civil rights. Natural rights come directly from God, and the government is bound to recognize and protect them. Civil rights, properly conceived, are the application of natural rights to life in a commonwealth.

A federalist system is not going to settle the controversy over abortion, special rights for LGBT, or the other social issues that have become matters of national importance. Rather, it will establish the rules of engagement. Just as the abolitionist experiment in the Northern states resulted in universal abolition, so liberty and natural rights recognition at the state level has the potential to transform the entire country. We have no other system to achieve these aims.

Life and liberty are natural rights belonging to every human being. The government’s commitment to protecting those rights is the birthright of every American.

The problem we face at every level and in every branch of government is the violation of Constitutional checks and balances. There remains enough strength in our system, however, to prevent the entire concentration of government power in one person or body. If we can restore this system, it will be the greatest safeguard to life and liberty that is available to us.

The best place to begin is at the State level. The States have suffered the most loss of power of any part of our government, yet they are the part of government most responsive to a small, determined group of citizens. They should, therefore, with the help of like-minded Presidents and Members of Congress, be the easiest part to turn around.

Supreme Court Justice Louis Brandeis stated in the 1932 decision New State Ice Co. v. Liebmann, “To [prevent] experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Proponents of abortion and LGBT interests may, then, set up shop in the states that are most sympathetic to their thinking. They may push for changes to the state constitution to make legal what they are already doing illegally through judicial and executive overreach and unconstitutional laws. They may even win judicial and legislative constraints on other states to prevent their systems from falling apart. This is what the slave-states did with the Constitution in the Three-Fifths Compromise and the Constitutional requirement that led to the Fugitive Slave Acts.

On the other hand, opponents are free to pass and enforce state laws that prevent such attacks on life and liberty in other states. They are free to force a compromise that prevents the more progressive states from making traditional states party to crimes against natural law. The Three-Fifths representation requirement in the Constitution was such a compromise, in that it allowed slaves to count for representation yet limited the ability of slave states to use their enslaved population as a source of power in Washington. Likewise, in Lincoln’s rejection of the reasoning behind the Dred Scott decision, he ensured that slave-owners who brought their slaves into free states would lose them.

We have to understand that secession is not off the table as an option. However, a justifiable secession without mutual consent has to be based on two criteria: 1. the Federal government or states remaining in the Union have broken the social compact codified in the Constitution, and 2. no avenue of redress remains within the framework of the Union. As Lincoln himself said, “If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one.” For this argument to work, a seceding State can not be in violation of natural law itself, as was the case of the Confederate states.

The tariff laws were a legitimate grievance on the part of the South. To force them to submit to laws that went against their economic freedom would have been wrong. The tariff laws may well have been in accord with the letter of the Constitution, but that does not mean they were good laws. The Southern states were in a position to accept or reject those laws, and rejection could have led to the necessity of seceding from the Union. After all, it was one of the charges of the colonies in the Declaration of Independence that the King had “[cut] off our Trade with all parts of the world.” The Southern states reasonably considered trade to be a “vital right.” Therefore such an economic injustice could be a breach of the social compact under natural law, even if it did not meet Lincoln’s strict standard of denying a “clearly written constitutional right.”

Leaving the Union to set up a nation or confederation based on principles opposite to the natural law principles the Union was based on, however, was a different matter. When Lincoln offered to do whatever was necessary to persuade the Southern states to remain in the Union, he took away whatever justification for secession they may have had in the tariff laws. The matter of secession and the Civil War were about the perpetuation and expansion of black slavery, pure and simple.

Any State that is not prepared to secede if necessary to protect the life and liberty of those it is responsible for is not entirely committed to those obligations. Any Federal government that is willing to release a natural-law-defying State from the Union, or one that is ready to overlook that State’s violations of the Constitution, is not committed to its responsibility to protect life and liberty.

That is how federalism is designed to work. That is how it will work if we let it.

For our system to change, political parties have to change. I mentioned earlier the fight over the Confederate battle flag in the South Carolina Republican Party. No one raised the subject at the Convention, but the issue hasn’t exactly gone away. Drew McKissick, who was elected Chairman at the convention, was opposed to the removal of the flag initially. He has never argued for it. He is typical in this respect of many Southern politicians. Glen Browder, former Democratic Congressman from Alabama, said that at this point “he would be surprised to see [Southern] candidates take a strong stance on either side of the issue.”

Rather than avoiding the debate over Southern history, politicians should take a clear position. We can’t just say “it’s complicated” or “leave Southern sympathizers alone.” That cedes control of the narrative to people who are on the wrong side of cultural issues. On the one hand, the progressives reject both white supremacy and American heritage with its values and its Constitution. On the other hand, candidates like Sheri Few of South Carolina and Corey Stewart of Virginia embrace the Confederate cause as a good thing and demonize the Union side in the Civil War along with progressives and those whom they consider progressive-leaning.

Politicians are opinion leaders, and they should continue to lead in this respect. They should make the argument that yes, the Southern states did have some valid concerns, but what they did was way out of line. They should say unequivocally that the Confederate position is not compatible either with the US Constitution, with natural law, or with the best in our nation’s religious heritage. Only when we get the cultural argument right will we be in the best position possible to make the political case for the American Constitutional system of government.


  • owencrew

    I like your evenhanded level headed approach to a time in our history where both the good and the bad from all sides needs a good honest look.

  • owencrew

    Very thought provoking. Thank you Owen. Jeff Davis

  • owencrew

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