cross-posted from the Oregon Tenth Amendment Center
Many of us in the Libertarian movement mistakenly view the Federal government as a stick with which to hit the State government like a pinata. I believe this view stems from the faulty belief that the Federal govt. can be limited by a simple piece of paper as if that paper somehow had a magical property that would prevent its own violation, that somehow the three branches of the Federal govt. are set inexorably against each other. Of course, a honest look through history would convince any but the most naive, that this is not the case. Branches routinely collude to eliminate any and all limits upon their power. The only realistic limiter of the powers of the three branches of the Feds is/are the State govt(s). Consider the frailty of any other checks:
Otherwise known as “throwing the bums out,” elections have amounted to no check at all, every since I can remember . In 1994, we had a big change in the composition of Congress (from Dem to Rep). Most people said this was in direct response to the attempt by the Democrat-dominated Congress to pass “Hillarycare.” Republicans were swept into office with the promise of smaller govt., eliminating the abuse that had been taking place within the welfare system, and of balancing the budget. Oddly enough, govt. did not shrink at any time during the subsequent years of Republican control. After six years of Republican domination in Legislature, what did we have? A LARGER govt. than we had started with.
In 2000, we were promised that if we would just elect GWB we would finally have all the power in govt. that was needed to shrink it… and yet, in 2008, the size of govt. was much larger after 8 years of Bush, than before. Out of the promises to shrink govt. and limit our involvement in foreign affairs, we got….wait for it….. MASSIVE DEFICITS, MEDICARE PARTD, TARP (WHICH AMOUNTED TO A FORCED CARTELIZATION OF BANKS A’LA MUSSOLINI), FIRST STIMULUS, CAMPAIGN FINANCE REFORM, THE CLASSIFICATION OF CO2 AS A POLLUTANT, ETC…… Surprised? Or NOT?
To make matters worse, the Presidential candidates of 2008 agreed on socialized healthcare, and in reality the only issues that they didn’t agree on were the ones in which Obama broke his promises and governed as if he were McCain/Bush. He promised to end the foreign wars, close Guantannamo, end earmarks and corporate welfare, and to balance the budget; he also said he would have a ban on lobbyists in the oval office. Lets look at the things that have happened… The Patriot Act has been renewed, wars are still raging (in fact more wars than when Obama got elected), we now have to endure strip searches, porno scanners and mandatory sexual assault prior to boarding commercial planes, there are still lobbyists visiting D.C. on a daily basis, and we have effectively cartellized the entire healthcare housing, insurance, and mortgage industries. Worst of all, not only did Obama NOT end the deficit, but he made it grow more, in the 2.5 years of his administration, so far, – than all 8 years of the W. Bush Admin. (no small feat, as until Obama, Bush was the biggest spender in history).
You cannot limit the govt. by throwing the bums out if you replace them with new bums who are in agreement with the old bums. Not to mention that bums can be corrupted once in office, and it is difficult to replace an incumbent when the campaign finance laws make it all but impossible for a popular candidate to challenge an incumbent (by making it hard to compete with a war chest by limiting how much you can raise from individual). For all intents and purposes, what we have is a liberal and conservative wing of the collectivist party right now. They are bipartisan on undeclared wars, bipartisan on unconstitutional limits upon personal consumption, bipartisan on illegal wealth redistribution schemes, bipartisan on siphoning off funds from education through the illegal Federal Dept of Education, and bipartisan on violating your privacy and dignity by subjecting us to unreasonable search-and-seizure at airports, etc. In short… on all the issues people want changed, the major parties are bipartisan in wanting things to stay the same.
(Or as I like to refer to this method, “Begging Washington D.C. to limit themselves”). This one is silly, and by now most people should realize the folly of expecting a branch of the Federal govt. to rule against itself. This is so silly of a concept that I’m not sure I should even be addressing it here. In case after case, the Federal courts demonstrate my point, for instance; Wickard vs Filburn, where the courts ruled that by opting to grow something on our own land, rather than purchase it, we have engaged in Interstate Commerce, and thus are under the direct control of the Federal govt. and can be forcibly cartelized and have our own ability to earn for our family limited as a way of making food more expensive for our fellow man. Compare this to the modest understanding of “commerce” as was envisioned by the founders. Madison said it best when he described its purpose/scope as:
“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”
So let me ask you, if the Federal courts in D.C. can allow that one to slip, what would possess anyone to think that the Federal courts are willing to limit the power of government? Lets not end it there, how about the entire fallacy of separate and coequal branches limiting themselves. Whoever thought this one up obviously didn’t spend too much time on it. What makes anyone think that the separate branches will limit one another, rather than feeding off of each other? That is what has happened since 1913 (the last time the states had a seat at the federal table). Lets take a look at President GWB’s signing of the Campaign Finance Reform, which is obviously unconstitutional (and he said as much when he signed it), and Nancy Pelosi laughing when she was asked by a reporter ‘where the Federal govt. got the authority to force people to buy health insurance,’ of which her exact words were “Are you serious?… are you serious.” And how about the Supreme Court deciding that a plant that you grow yourself (and will never sell, as it cannot be legally sold) constitutes “Interstate Commerce.”
The 2-Party System:
Or how about the checks by party? Republicans limit the encroachments on financial liberty and Democrats limit encroachments on civil liberty, or at least that is how it is supposed to work. This brings to mind a football game, where the 2 parties battle to protect your liberties. We are on the 50 yard-line of the game where there is just the right amount of government in all areas, except that right now it is not a football game, but rather a relay race. One party will limit a certain kind of liberty until people get ticked, and the party that replaces them leaves those limits in place and just starts limiting different liberties (without restoring the previously lost liberties). All you have to do is look at the presidential performance sighted in the first part of this article for a vivid illustration of this in action. This is not a see-saw, but rather a ratchet-effect of a continuous diminution of rights.
So How Did This All Start?
The view of the Feds as ‘protector of rights’ began in 1869 when the U.S. Supreme Court ”decided” a case referred to as the Slaughterhouse Case. In this case the Supreme court did something that we would likely applaud today.. they decided to limit the authority of the State govt., based upon the newly ratified 14th Amendment. The state of Louisiana had seen fit to place limits upon where slaughterhouses could be placed (allegedly due to some serious health concerns). A group of butchers sued, saying that they had the right to start a new slaughterhouse anywhere they wanted, and the Supreme Court agreed with them. The only problem with this ruling is/was that the 14th Amendment did not give the power to the Federal govt. to do this. The rights that were to be guaranteed were the very basic rights out of “Blackstones”, and the S
They spent the latter half of the 19th Century doing the same thing – again, a thing Libertarians can get behind. Up until the Great Depression, the Feds acted as ‘ensurer of property rights,’ however, as they say.. “if you live by the sword, you die by the sword.”
What had happened should serve as an example of the problem with trusting the feds to protect liberties. Whenever you give the authority to the feds to limit the states, they (more than likely) will not stop at the limits you ask them to impose. By turning to the feds as the arbiter of our rights we removed the only check upon the feds when they are the ones infringing on our rights! When you come across something that you believe the feds should do, you have to ask yourself.. “what will happen when they change their minds?” If you ask the feds to settle the marriage issue once and for all at the federal level, you have to also accept that once the party in charge changes in D.C., and they make a decision you disagree with, think the Feds should ensure that the states give gun-ownership rights? Then be ready for when they strip them. Think the feds should manage abortion? Then be ready for when they outlaw (or legalize) abortion. Regardless of your view anything done at the federal level is never fixed. You can only have it your way for as long as your party holds power.
The only reason this worked for a brief period in history, was because the Judges who happened to be on the bench during that brief period were staunchly for ”private-property rights.” There were, however, no guarantees that this situation would continue, and indeed, as soon as the courts were threatened by FDR.. they folded like a cheap suit. That is what is eventually destined to happen when you allow the feds to misconstrue the Constitution (even for a good cause).. it establishes the precedent that they may violate it for a “bad” cause just as well (because every cause is someones “good” cause).
The obvious answer here is to ensure that localities are allowed to govern themselves. That was the vision of our country’s founders, and that is the way everyone can be satisfied on these very divisive issues. In fact, for a country as large and diverse as ours, local control is the only possible way we can co-exist. You want legal abortions? Go and get elected to your own State Legislature, or move to where it is legal! Prevent these things from being funded at the federal level, and you will maintain control and moral certainty at the local level, where it counts. If your sorry butt can’t get elected, move to where the policies are more to your liking. Want a robust welfare state? Move to a state that caters to that. Want no welfare state? Again, move to where none exists. All these things don’t need to be handled on the federal level, but as the welfare state has gotten out of control the feds have become everyones Santa Clause. Providing services that state govt.s wont/can’t/shouldn’t. In fact, the only things that should be handled at the federal level are the things listed in the Constitution. Any departure from that, and you have effectively repealed the Constitution by demonstrating that it’s rules are not law. And a government that wont follow it’s laws…… is a tyranny.