Editor’s note: I am grateful that Andrew Quesnelle has agreed to join us as a contributing author here at the Pennsylvania Tenth Amendment Center. As you will see momentarily, Andrew offers a valuable and insightful perspective towards the Tenth Amendment.
States’ Rights Should Be a Non-Partisan Endeavor
Legal and political scholarship is replete with various rationales for why political parties were never envisioned by the Founders and why such parties can be so devastating to free government. In Federalist 10, James Madison offered a very candid look into the dangers of what he referred to as “faction:”
AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice . . . . Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.
Madison’s argument was that a large republic – such as the United States – would be better able to resist the rancor of parties and factions than smaller republics – such as the states individually (remember that Madison was arguing for ratification of the Constitution).
With all due respect to Mr. Madison (and a great deal of respect is certainly due), he failed to realize that parties would destroy the natural balance between the federal government and the states by distorting the normal channels of the people’s loyalty. The states and the federal government were supposed to “butt heads” – as competing sovereigns, power would be divided between the two, thus limiting opportunities for a dangerous accumulation of power in any one place. For this to work properly, the members of state legislatures need to be more loyal to each other than to Congress. State governors need to be more loyal to their own legislative body than to the President. But this concept has long fallen by the wayside. Now, Republicans in Harrisburg are more loyal to John Boehner (R-OH) and the Republican leaders on Capitol Hill than to the Democrats in their own chamber. Governor Rendell feels more affinity for President Obama that for the Republicans in his legislature. With competing loyalties dissolving in the face of partisan politics, the states are not in any position to operate as a bulwark against federal overreaching. This is best illustrated graphically. If states’ rights are to mean anything, the distribution of loyalty should look like this:
In this model, the barrier is right where it should be – between the states and the federal government. Here is what the modern party system has done:
The barrier that once divided state from federal now divides state legislators one from the other. There is nothing remaining to stop federal overreaching. If the overreaching is done by Republicans in Washington, the Republicans in Harrisburg will do little, and vice versa. It is no wonder why, in the lawsuit by state attorneys general against Obamacare, 12 of the 13 initiating attorneys general are Republicans. In other words, although Obamacare is an unconstitutional exercise of federal power, particularly in terms of its mandate that all people purchase health insurance, the Democrats in statehouses around the nation will not oppose it. They have hitched their wagons to their partisan allies in Washington, not to their own legislative prerogatives.
What gave rise to such a situation? I think it is the fact that the overwhelming majority of people harbor a false and destructive tendency to differentiate “economic liberty” from “personal liberty.” We see it all the time. The standard line that you hear is that Democrats have no problem being in your pocketbook but will stay out of your bedroom. In other words, Democrats value “personal liberty,” but not “economic liberty.” The reverse is equally true – Republicans want to police your bedroom but are hands-off when it comes to your pocketbook. “Economic liberty” is important. “Personal liberty,” not so much.
I want people to realize that this is a bad dichotomy – a false dichotomy – and it is largely why we have a federal government run amok. Liberty is liberty. Economic or personal, its all one and the same. Understand this – if you empower the federal government to invade “economic liberty,” you have empowered it to go after “personal liberty” as well. If you give the government the keys to your bedroom, you have also given it the PIN for your bank account. Where the federal government is concerned, you have two choices: you either stand on principle and deny the federal government the power to do even things you like, or you cling to political expediency, turning the federal government into an instrument to impose your ideas on an entire nation while at the same time allowing others to do the same. Before you make that choice, realize that political parties are the largest and most dangerous “special interest” there is, because their interest is focused on one thing – power.
You can try to distance yourself from this, but if you do, you are exhibiting gross intellectual dishonesty. If your goal is to use the federal government to accomplish your policy prerogatives, then you have no complaint when I use it to accomplish my policy prerogatives. Pretty soon, everyone lines up at the trough to “get theirs” from their political allies in Washington before the other party resumes power. When the damage is surveyed, we wind up with a $14 trillion debt, and a federal government that intervenes in the Terri Schiavo case and in the question of who and who is not married, and one that regulates everything from guns to education to health care – areas that are traditionally state prerogatives. Gerald Ford may have said it best: “a government big enough to give you everything you want is a government big enough to take from you everything you have.”
Madison believed that when the federal government invaded the sphere of state authority, the states would respond:
But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.
Federalist 45. Was Madison wrong? If the loyalty of state officials runs first to their party in Washington, then he certainly was. And that’s a real problem, because if we hope to restore any meaningful limitations on the federal government, Madison has to be right.
Andy Quesnelle spent most of his early childhood in Cincinnati, Ohio and moved to Pittsburgh, Pennsylvania in 1992. He has lived in Pittsburgh ever since, except for the 7-year period during which he was in college and law school. He graduated from the University of Michigan in 2003 with a B.A. in History and Political Science. His primary areas of concentration were Colonial American History, 20th Century U.S. History, and American politics and government. He received his J.D. from Villanova University School of Law in 2006.
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