by Diane Rufino (citing Donald Livingston in his book Rethinking the American Union for the Twenty-First Century), July 26, 2016
The purpose of this article is three-fold: First, I want to be provocative and get readers thinking. Second, I wish to educate the reader on our founding principles. And third, I hope to encourage the reader to read the book Rethinking the American Union for the Twenty-First Century, written in part and edited by Donald Livingston, founder and president of the Abbeville Institute. I enjoyed the book immensely and wanted very much to help get the word out.
I think the best way to encourage one to read the book Rethinking the American Union for the Twenty-First Century is to hook him or her using one of the more thought-provoking themes of the book. And so, this article is composed in great part using selected portions from one of the chapters in that book which I found most interesting – “American Republicanism,” authored by Livingston), with a discussion of nullification, interposition, secession, and federalism by myself. Credit, of course, goes first and foremost to Professor Livingston.
Article IV of the US Constitution guarantees to every State in the Union “a Republican form of government.” It is known as the “Guarantee Clause.” It has not been widely interpreted, but constitutional scholars think it ensures that each State be run as a representative democracy or a dictatorship, preventing any initiative to change a State constitution to provide such. The Supreme Court has essentially acknowledged that it doesn’t have the slightest idea what it means, has been reluctant to specify exactly what a “republican form of government” means and has left the clause devoid of meaning. Historically, however, republics have had distinct characteristics, namely that its citizens make the laws they are to live under, that there is a Rule of Law, and that the republic itself be relatively small with respect to population and territory, to ensure that representation is meaningful.
The American system of 1789 was not a republic. It was a federation of republics – each state itself a republic – but the Union itself was not a republic. “A federation of republics is not itself a republic, any more than a federation of country clubs is not in and of itself a country club.” Under the Constitution of 1787, the central government could rule over individuals but only under the powers delegated to it by the sovereign States. All other powers of sovereignty belong to the States, expressly reserved through the Tenth Amendment, by the natural law of sovereignty, and contractually by force of the compact theory characterizing the Constitution. Given this framework, the final safeguard for a truly republican form of government for the people in America was, and could only be, some form of lawful resistance to the concentration of coercion in the federal government, which includes state interposition, nullification, or secession. These remedies are included in the “reserved powers” belonging to the States.
Nullification is a legal theory that holds that a State has the right to nullify, or invalidate, any federal law which that State has deemed unconstitutional. If the authority for the federal government only comes from the highly-contested and debated powers that the States agreed to delegate from their reservoir of sovereign powers, as listed in the Constitution, any federal law, policy, action, or court decision that exceeds such grants of power is “null and void” and lacks enforcement power. Since the federal government will always seek to support and enforce its laws and actions, it must be the States, as the parties to the Constitution and the ones which suffer the usurpation of powers with each unconstitutional action, which must rightfully declare “unconstitutionality” and prevent them from being enforced on a free people. Because the right of nullification is not prohibited by the Constitution (nor is it even addressed), it is reserved by the States under the Tenth Amendment.
Interposition is another claimed right belonging to the States. Interposition is the right of a State to oppose actions of the federal government that the state deems unconstitutional by in order to prevent their enforcement. The very definition of a tyrannical government is one that imposes unconstitutional actions on its citizens. Tyranny is arbitrary rule. Interposition is the actual action, whether legislative or otherwise, to prevent an unconstitutional federal law or action from being enforced on its people. The most effective remedy against unconstitutional federal action, as emphasized by both Thomas Jefferson and James Madison, is nullification together with interposition. Interposition finds its roots in the Supremacy Clause. While the Constitution and the laws made in pursuance are considered the supreme law of the land, laws (and other actions) not grounded in rightful or legitimate Constitutional powers are not supreme and the States are well within their powers to prevent such usurpation of government power belonging to their sphere of authority.
Secession, like nullification and interposition, is not prohibited by the Constitution (or even addressed), and hence, is a reserved right of the States.
Nullification and interposition were invoked in 1798 by Kentucky and Virginia to identify the Alien & Sedition Acts as unconstitutional and to prevent citizens of those states from being imprisoned essentially for their exercise of free speech and press. Secession was threated in 1815 by Massachusetts after it characterized Jefferson’s embargo against Great Britain and his Louisiana Purchase and then Madison’s War of 1812 as a history of abuses against the North, with an intent to further the interests of the South. All three States’ Rights’ remedies were regularly invoked in the antebellum period, in every section of the Union, to assert State sovereignty and to constrain the central government. As of 1860, the central government was out of debt and imposed no inland taxes. It existed simply off a tariff on imports and land sales. The Supreme Court was tightly constrained in its exercise of judicial review. It challenged the constitutionality of acts of Congress only twice – in Marbury v. Madison (the Judiciary Act of 1789) and the Dred Scott decision (the right of a slave to challenge his status in a non-slave state when brought there by his master). States and localities in almost all States in the North refused to comply with the Fugitive Slave Act (nullification), either by statue or by civil acts of disobedience, and most strikingly, the Wisconsin legislature and the State Supreme Court in 1854 and 1859 outright challenged the constitutionality of the Act (citing coercion of the states and state officials). South Carolina nullified the Tariff of 1828, citing the improper nature of the tariff, changing it from an ordinary tariff (for revenue collection for the government) to a protectionist tariff (to provide direct funding of “improvements” for the North, as well as other enormous benefits), and claiming it was nothing more than a federal scheme to directly enrich the North at the great expense of the South.
Today, it is taught and it is believed that the “checks and balances” in the American system are only those between the president, Congress, and the Supreme Court. We know about the veto procedure, the ratification process for treaties, appointments (including federal court justices) and judicial review (this last check is not in the constitution actually but a creature of the Supreme Court itself!) The purpose of our Separation of Powers and our series of checks and balances is to prevent the consolidation of power in any one branch of government and any one group of representatives. But only a very limited number of Americans understand and appreciate that the greatest check on the consolidation of power comes from the unique design feature of our government established by the States and our Founding Fathers in the conventions and debates creating the Constitution – and that is Federalism. Federalism is idea that real power is shared by the members of the “federation,” which are the States, with the creature they created (the federal government), which is the reservoir of powers expressly delegated to it by the US Constitution. Federalism is a “sharing” or “division” of power among sovereigns in order to prevent concentration and tyranny. The idea is that the government, as a sovereign with very limited and expressly delegated powers, and the States, as sovereigns retaining all other powers of government, will jealously guard their sphere of power and will watch, ever-so-vigilantly, the actions of one another. What more effective check on government power could there be !! Sovereign versus sovereign, which is what the term “dual sovereignty” refers to. Or, as I like to refer to this design feature: “Titan versus Titan” (a reference to Greek mythology). Alexander Hamilton, in a speech to the New York Ratifying Convention on June 17, 1788, explained it this way: “This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”
Sadly, this most effective check on consolidation of power in DC has been effectively eroded – mainly at the hands of the US Supreme Court. The checks from the States on central authority in the form of nullification, interposition, and secession have now been ruled out. And this is just another way of saying that the federal government can define the limits of its own powers. And that is what the American colonists and ratifiers of the Constitution drafted in Philadelphia in 1787 meant by “absolute monarchy.”
Ask yourself this: Which branch of government ruled out the essential and natural remedies of nullification, interposition, and secession? The answer is the US Supreme Court, supporting the ambitious plans of the federal government and improperly relying on Marbury v. Madison (1803) and the Supremacy Clause of the US Constitution for authority. For a State to treat its decisions with less than full support would bring the full resources of the federal government into its backyard. It’s happened before. Andrew Jackson, Abraham Lincoln, Andrew Johnson, Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower. Rather than interpreting the Constitution, which pretty much is its sole task, the Supreme Court has redefined a new political and government system, one that is quite different from the one entrusted to us by our framers and founders.
When authority taken by the federal government falls outside of the enumerated powers, it makes no sense to ask the federal government to rule on whether the federal government has the power or not. The States, the ones which debated and ratified the Constitution for THEIR benefit, have no umpire on the bench. As historian Tom Woods points out, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones.
So, it is no surprise that the Supreme Court consistently and steadily handed down decision after decision to strip the States’ of their natural remedies against the Titan seeking to subjugate them – the federal government. Again, the Supreme Court is itself a branch of the very government that seeks to benefit from the consolidation of power it wants by weakening the States. What better way to get the States to calm down and get in line?
Thomas Jefferson was skeptical of the federal judiciary and warned that they had the greatest potential to undermine republican government. In 1823, he wrote: “At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”
If you believe, as most Americans seem to believe (because of government indoctrination), that States no longer have the rights of nullification, interposition, and secession because of the action of one man, a virtual dictator, Abraham Lincoln, then you must reconcile the fact that no State any longer enjoys a republican form of government, as guaranteed in Article IV. That is, they no longer enjoy a republican form of government under any historical understanding of what such a government is nor under the vision of our founders. That notion has now decayed into a legal fiction.
But if the States are not republics, what are they? Donald Livingston argues that the answer was given by Alexis de Tocqueville in his assessment of the French Revolution. According to de Tocqueville, the French revolution was intended to overturn the monarchy and return power to the people by creating a republic but in reality, it fundamentally changed nothing. The coercive government of the monarchy was simply replaced by a different type of coercive government. The monopoly over government and land created by Kings (Divine Right of Kings) is a doctrine that embodies two bodies of the king. This duality is symbolized by this famous phrase: “The King is dead! Long live the King!” The first body of the king was the flesh and blood; the mortal body. The second body was the monopoly, or the artificial corporation, established by birth-right and familial ties. Both bodies are coercive in nature since they are not “of the people” and can never truly represent them. When de Tocqueville said that the French Revolution fundamentally changed nothing, he meant that all that it did was kill the first body of the king. It left the second body of the king intact, merely changing its name from the “Crown” to the “Republic.” The revolution merely replaced the person of the king with a fictitious “nation-person.” In other words, what was created after the French Revolution was an absolute monarchy without the monarch; a regime that had all the major defects of a monarchy but none of the benefits. The post-French Revolution era of “republics” would increase government centralization beyond the wildest dream of any monarch. The German economist, Hans Hoppe, estimates that before the mid-nineteenth century, monarchs, as bad as they might have been, were never able to extract more than 5-8 percent of the gross national product (GNP) from the people, whereas “republics” have been able to exploit over 60 percent.
In his war to prevent Southern independence, Lincoln and the perversely-named “Republican” Party destroyed the two American institutions that had made true republicanism possible in a region on our continental scale – State nullification and secession. Without these rights, there can be no practical check to centralization and oppression of government, and hence, no practical way to ensure that the People of the several States are guaranteed a republican form of government.
Is it possible to have an exceedingly large republic, such as the size of our current-day United States? British philosopher David Hume once considered the question of a large republic. He proposed the first model of a large republic in his essay “Idea of a Perfect Commonwealth,” which was published in 1792. Hume’s model did not physically seek to divide territory up physically into individual sovereigns but rather to decentralize government power so as to preserve the human scale demanded of republican self-government. The question is whether this can realistically be done.
Hume agrees with the republican tradition that “a small commonwealth is the happiest government in the world within itself.” But Hume’s model of a large republic, in contrast to the historically small republic, would be to order the large republic in such a way as to have all the advantages of a little republic. The question is whether Hume’s model is translatable to the real world: Can the size of a republic be expanded without destroying those values unique to republican government (self-government and the rule of law) that require a human scale.
Hume’s idea of a large republic is something of the size of Great Britain or France. (Remember his essay was written in 1792!) As a comparison, Great Britain is approximately equivalent in size to Wyoming and France is approximately equivalent in size to Texas. In Hume’s model, the republic is divided into 100 small republics, but with a national capital. Each of these small republics is then divided into 100 parishes. The members of each parish meet annually to elect 1 representative. This yields 100 representatives in each small republic’s legislature. The legislature selects from among its members 10 magistrates to exercise the executive and judicial functions of the republic and 1 senator to represent the republic in the national capital. That yields 100 senators, from among which 10 are chosen to serve as the national executive and judiciary.
Laws would be proposed by the national senate and passed down to the provincial republics or ratification. Each republic has one vote regardless of population, and the majority rules. To free the provincial legislature from having to vote on every trivial law, a bill can be sent instead to the ten provincial magistrates in each republic for ratification.
How does Hume’s large republic compare to the “highly-centralized regime” that the United States has become today? Hume’s republic has 100 senators in the national capital representing the individual States, as we do. But the legislative body representing the nation of individuals is located in the several capitals of the provincial republics. This provides three essential advantages. First, it provides a better and more republican ratio of representation to population. Hume’s republic is the size of Britain, which in his time had some 9 million people; yet his regionally dispersed legislature jointly yields 10,000 representatives. [100 x 100]. By contrast, the United States has 305 million people, which is 34 times as many inhabitants. Its representative body contains not 10,000 representatives but only 435 representatives – a number that Congress capped by law in 1911. Hume’s large republic provides a ratio of 1 representative for every 900 people, and so it is of a republican scale. This is very important !! The United States’ system provides 1 representative for every 700,000 people, which is not even remotely within a republican scale.
And if you are thinking that this unrepublican character of the United States can be remedied by abolishing the law setting the cap at 435 and increasing the number of representatives in the US House, you will need to understand that judging by the size of legislatures around the world, 435 is just about the right size for a lawmaking body. Everything in nature has a proper size for optimum functionality. A cell can only grow to a certain size (a certain volume-to-cell-surface ratio) so that it can absorb nutrients, eliminate waste, and respire most efficiently. A jury of 12 is perfectly suited to determine the facts of a case; a jury of 120 would be dysfunctional. When the first US Congress met in New York in 1789, there were 65 representatives. There was 1 representative for every 60,000 people. James Madison thought that was an inadequate ratio to adequately represent the people in a republic. When the number of representatives was capped at 435 in 1911, the population in the United States was 93,863,000. That means that there was 1 representative for every 215,777 inhabitants. If we were to use the same ratio that was used in 1789 – 1: 60,000 – there would be over 5,000 members in the House of Representatives. This would be impossibly large for a lawmaking body. Size does matter.
So, if the number of representatives in Washington DC cannot be increased as the population increases, then we have clearly reached the point where talk of republican self-government is utterly meaningless. We are merely a republican in name only. In the not too distant future, the population of the United States will reach 435 million. This would yield one representative for every million persons. Who could honestly believe a regime under this system could be described as a republic?
The point is that a country can literally become too large for self-government. It becomes unresponsive to the people because its representatives cannot possibly represent the interests of all its constituents.
If the United States has indeed reached the point of political obesity, then the only remedy would be to downsize. The United States will need to be downsized either through peaceful secession movements or through a division into a number of federative units forming a voluntary commonwealth of American federations – an idea that Thomas Jefferson was fond of.
For the moment, let’s put peaceful secession aside (which would divide the Union into distinct territorial jurisdictions or would create individual, independent sovereigns). Suppose that the United States adopts such a model as Hume’s large republic. This would require abolishing the House of Representatives in Washington DC (Yay!) and transforming the State legislatures into a joint national legislature. The Senate would propose legislation to be ratified by a majority of the States, each State having one vote.
Consider trying to enact the unpopular legislation passed in 2009 and then 2010 under such a model. Of course, I’m referring to the Bailout bills and the stimulus packages of 2009 and then the Patient Protection and Affordable Care Act (or grossly referred to simply as the “Affordable Care Act’; or aptly named “Obamacare”) of 2010. A strong majority of Americans opposed the bailouts for the monster banks whose corrupt and inept policies caused the financial meltdown in 2009, the economic stimulus packages that they knew wouldn’t work, and Barack Obama’s healthcare plan of some two thousand pages, rushed through after secret meetings and secret deals and with publicly-acknowledged privileges given to some states and not others, and admissions by its leading supporters (Democrats) that they hadn’t even read it. To this should be added that many believe that Congress has no constitutional authority to bailout businesses, let alone arbitrarily choosing which ones to provide federal aid, nor to impose a national healthcare plan, regardless whether it is good or not and whether or not it would help certain citizens out. Now, had these bills been sent down to the State legislatures for debate and ratification, as required by Hume’s large republic model, their defeat would have been so certain that they probably would never have even been proposed in the first place.
The second advantage presented by Hume’s model is that by dispersing the national legislature among the provincial republics (the smaller republics), he has eliminated the corruption that inevitably comes from putting the House of Representatives and the Senate in the same place. The number of representatives in Washington is 435 in the House, and 100 in the Senate– for a grand total of 535 lawmakers. A majority of this number is only 269. This small number rules 305 million people. And the majority can be even less, since both houses can lawfully operate, and they often do, with a mere quorum. A quorum majority of both houses of Congress is only 135 !!
Consider also that the US Supreme Court, centered in DC, a branch of the federal government, with justices who are appointed according to political and ideological lines – and not for proven understanding and adherence to the Constitution – has usurped the traditional “police powers” of the States, which it exercises for the health, safety (including law enforcement), welfare, education, religion, and morality of its citizens. The police powers exercised by each individual State for the benefit of its own people is the very essence of republican life. Nine unelected Supreme Court justices with life tenure – by only a vote of 5-to-4 – make major social policy for 305 million people. Political issues that are reserved to the States, such as abortion, marriage, and voter integrity laws, have been taken out of the policy arena and magically transformed into “constitutional rights.” This means, in effect, that the Court can rewrite the Constitution at will, entirely by-passing the process specifically provided for in Article V (ratification of any alteration/amendment of the Constitution by a ratification by three-fourths of the States). Again, to think that five members of a high court can usurp lawmaking authority from the legislature (popularly-elected), can usurp powers from the States, and can transform the meaning and intent of the Constitution from the bench rather than the lawful process specifically put in place for the People themselves to define the limits of their government and we are still a republic is ludicrous.
Dispersing the legislatures among provinces would not necessarily get rid of government corruption, which is one of the biggest problems with a consolidated government. However, it would not exist on the same scale and of the same intensity that we see in DC today. Hume’s national legislature sits jointly in the 100 provincial capitals. That means that a lobbying interest must deploy a much greater number of lobbyists and over greater distances. In addition, it would be much more difficult for representatives to coordinate with each other to buy and sell votes, as is routinely done in Congress today. With such a large republic, representatives would be more cautious and frugal in spending taxpayer money. After all, the 10,000 dispersed representatives who live in the same neighborhood with their constituents would have to look them in the eye and would have to answer to them.
Third, Hume provides a number of checks to prevent a faction from dominating the whole. If the senate rejects a proposed law, only 10 senators out of 100 are needed to veto that decision and forward the bill to the republics for consideration. Laws thought to be trivial can be sent from the senate to the ten magistrates of the republic for ratification instead of calling on the whole legislature. But only 5 out of 100 provincial representatives are needed to veto this and call for a vote of their legislature. Each (small) republic can veto legislation of another republic and force a vote on the matter by all the republics.
Should the United States be divided up into provincial republics – into a “federation of republics” – in order to provide a true republican form of government to its people? Thomas Jefferson thought so. George Kennan, esteemed historian and American diplomat (crafted the US policy of containment with respect to the Soviet Union) also thought so. In his autobiography, Around the Cragged Hill, Kennan argued that the United States has become simply too large for the purposes of self-government. As he argued, the central government can rule 305 million people only by imposing one-size-fits-all rules that necessarily result in a “diminished sensitivity of its laws and regulations to the particular needs, traditions, ethnic, cultural, linguistic, and the like of individual localities and communities.” Kennan passed away in 2005. That the lives, property, income, and fortunes of 305 million Americans should be the playthings of an oligarchy in Washington that can act by a majority in Congress of only 269 (and 135 if acting by a quorum) and that the essence of republican life – religion, morals, education, marriage, voting rights, law enforcement, and social welfare – should be decided by nine unelected Supreme Court justices is something no free, liberty-minded people should tolerate.
Of course, there is the other option – secession and the formation of individual republics, not held together in federation form. It is said that secession should and must be ruled out because it causes war and it will necessarily involve bloodshed. But that is not necessarily true. Of course it will depend on the ambitions of the administration in Washington DC, in particular, the president. We would hope that we should never again suffer the likes of another Abraham Lincoln. But there are many examples of states that have seceded peacefully, including a number of Baltic states from the former Soviet Union. Norway peacefully seceded from Sweden in 1905 and Singapore did so from the Malaysian federation in 1965. Eventually, if things don’t change and freedom’s flame is close to being extinguished, secession may be the remedy to save the American experiment. Additionally, it may be the only way to save the US Constitution – by putting it in the hands of a people who will take care of it and be much more vigilante with its limited powers and its checks and balances than Americans have been. When 11 Southern States seceded from the Union in 1860-61 and formed the Confederate States of the American, they, as a Union, established a new constitution. This would be the third constitution that Americans made for themselves, and in most respects, it was far superior to the one of 1787 – they backed out of. It included several provisions which would have made it much more difficult for the central government to concentrate and usurp power. Had Lincoln respected the States’ right of self-determination (as proclaimed in the Declaration of Independence), we would have had the unique opportunity to compare, side-by-side, how each Union of States (North or South) fared under their constitutions. The point is that secession gave the People (acting in State conventions) the opportunity to correct the defects in the Constitution that caused them to be oppressed by government. The question will be: when that time comes (and maybe it is already here), will we have the Will to Secede!! Already, between 19-34% of Americans (ranked by State), now believe we would be better if States peacefully left the Union.
Donald Livingston closes his discussion of “American Republicanism” with this summary: “When a healthy cell grows too large, it divides into two cells. It is the cancerous cell that no longer knows how to stop growing. That artificial corporation, created by the individual States over two centuries ago, called the “United States” has, over time, metastasized into a cancerous growth on a federation of continental scale, sucking republican vitality out of States and local communities. The natural chemotherapy for this peculiar condition is and can only be some revived form of State interposition, nullification, or secession. If these are rejected out of hand as heresies (as our nationalist historians have taught since the late nineteenth century), then we can no longer, in good faith, describe ourselves as enjoying a republican style of government.
Again, I encourage everyone to read the entire book – Rethinking the American Union for the Twenty-First Century. Aside from Donald Livingston, accomplished authors and academics Kent Masterson Brown, Dr. Thomas DiLorenzo, Dr. Marshall DeRosa, Yuri Maltsev, and Rob Williams also contributed chapters.
Donald Livingston, ed., Rethinking the American Union for the Twenty-First Century, Pelican Publishing Company, 2013.
Poll: One in Four of Americans Want Their State to Secede, but Why? – http://blogs.reuters.com/jamesrgaines/2014/09/19/one-in-four-americans-want-their-state-to-secede-from-the-u-s-but-why/
Poll: A Quarter of Americans Want Their State to Secede – http://talkingpointsmemo.com/livewire/poll-seccession
Poll: One in Four of Americans Want Their State to Secede – http://dailycaller.com/2014/09/19/poll-one-in-four-americans-want-their-state-to-secede/
You make me feel a bit excited, make me really want to read a whole book. I guess I have to order it now. Thanks for your post, keep up the good work!
Oh Diane, I have so missed reading your articles! You are concise, lucid and so entertaining! Thanks for the great read…I will find Livingston’s book
Diane Rufino, what are your thoughts on tax policy? What are your thoughts on the matter of same sex marriage?
Hi Jeffrey, I’ll explain my thoughts in detail when (or if) I write on these subjects, but the skinny is that I support the Fair Tax or the flat tax. The tax system we have now is a mess and our system of raising revenue punishes too severely those who have property and assets. Property, primarily, is the stepping stone to the American dream. The Death Tax has to go and loopholes have to go, and in general, everyone must pay something to the government for the tax system to be fair.Everyone needs to have skin in the game when it comes time to vote and take government seriously. But because the tax code has no rhyme or reason, and personally because I believe it is government theft, I think it needs to be scrapped (and the 16th amendment repealed) in favor of the Fair or Flat tax. A consumer based tax is the way to go because everyone pays and because by its very nature, it is a graduated system where the wealthy end up paying more… they want the new things, the more expensive things…. so they pay more in tax. As far as same-sex marriage, that issue should be left to the individual states, under the Tenth Amendment.
Diane Rufino, from the standpoint of a flat tax, I say tax labor and investment equally at a rate of 10%. All deductions would be scrapped with the exception of the deductions for charitable contributions, home mortgage interest and business purchases. Even then, the deductions for business purchases would be limited, so you could not claim to have a business to get things completely tax-free. So, in some cases, deductibility of taxes would have limitations. From the standpoint of charitable donations, no caps would be placed. I agree on the matter of same sex marriage. Let states make their own laws regarding marriage. Of course, if you look at the issue of the 14th Amendment, that guarantees equal protection under the law. Equal protection should be able to translate to equal marriages. One of the biggest mistakes was the 16th Amendment. Some people can argue that the 17th Amendment was also a mistake.Senators were originally appointed by state legislators. On the one hand, I agree with the repeal. On the other hand, I believe that the people of each states should be free to decide that for themselves.
I agree with you totally about the 16th and 17th amendments. 1913 was a terrible year for the American people and for the notion of a limited government. Reconstruction destroyed the relationship between the states and the federal government — but only in the experience and NOT in the law. The Constitution was not materially altered in the wake of the Civil War (aka, the War of Northern Aggression; aka, the War to Prevent Southern Independence; aka, Lincoln’s War)… legally, that is. If you read up on the history of the 14th amendment and its ratification, you’ll find two things: (1) The states (the southern states, that is) were forced to ratify it; it was only as a consequence of extreme coercion at the hands of the government (the Republican-dominated; northern-state-dominated Congress). Coercion is a complete defense to an agreement (that is, the agreement is non-binding); and (2) the amendment was not legally/legitimately ratified. Technically, the 14th amendment should not exist, and if the federal courts were honest and genuinely responsible to interpret the Constitution according to its word and spirit, they would strike it down. But we know we will never see that day. The only other option is state Nullification, which I am a huge proponent of. Thomas Jefferson and James Madison, the men most responsible for our government system and most qualified to understand what the federal government’s rightful role is, what powers are reserved to the states, and what the people are entitled to under the theory of individual sovereignty (government power originates with the People, who are endowed with certain rights and liberties as a result of their humanity (“endowed by the Creator”), both emphasis that Nullification is the rightful remedy to take back powers that the federal government has usurped. Every unconstitutional act by the government, every abuse of power, every decision by a federal court that amounts to judicial activism is a usurpation of power that belongs to the States or to the People. Equal Protection has been read into the 5th Amendments Due Process clause, and is therefore a question that asks “Does this person or group of people have a constitutionally-protected right at stake or is there an interest at stake that relates to life, liberty, or property?” Since we are finally at an understanding in this country that all persons (especially those with immutable characteristics) are to be treated equally, the inquiry is the same. I think when it comes to social issues related to those persons who differ in ways that are not related to immutable characteristics, it is only right that they are left to the individual states.
Diane Rufino, why was the 14th Amendment a bad idea? Do you not support equal protection under the law?
Hello again Jeffrey. OF COURSE I SUPPORT EQUAL PROTECTION !! Who doesn’t? Who wouldn’t ? What I do NOT support is recognition of a constitutional amendment that: (1) was not legally and legitimately ratified by the states, and (2) is used without constraint and with impunity by the Supreme Court to strip the states of their reserved powers under the Constitution and further re-stated and re-enforced by the 10th amendment. I mean, with respect to the judges on the Supreme Court, who watches with watchers? Hence, they can be the most powerful/dangerous individuals in the country. I’m not saying the 14th amendment doesn’t have some good parts, but its usefulness has passed. It was passed so that freed slaves in the South (because the amendment was aimed at the South), freed by the 13th amendment would not be denied the rights and privileges of citizenship and therefore could truly be recognized and treated as free and equal (although we know eventually that didn’t happen after Reconstruction and in the era of Jim Crow). But those days are over. So the only thing remaining in the 14th amendment that would seem to be relevant now is the Equal Protection clause, but as I had hinted at earlier, Equal Protection has been read into the 5th amendment’s Due Process clause. If the individual states want to re-visit the 14th amendment, re-evaluate it, and consider it for ratification, then that is all well and good. Amending the Constitutionally LEGALLY is outlined in Article V. What is NOT legal is having the federal government (the US Congress) manipulate the States, disenfranchise them in their constitutional right to a republican form of government, coerce them into ratifying the amendment. The Northern-led Congress, after recognizing the legal status of the Southern states as re-joining the Union when they ratified the 13th amendment (January 1865), all-of-a-sudden declared them “out of the Union” when every Southern state (except Tennessee) refused to adopt the 14th amendment. To punish them for refusing to ratify the amendment, Congress drafted and passed the Reconstruction Acts, which placed the Southern states under (Northern) military rule, refused to allow their representatives to sit in Congress and hence to represent their states in government, disbanded their legislatures, denied whites the right to vote (the Acts said that anyone “loyal to the Confederacy” was not allowed to be represented in government or to vote), required each state to draft a new state constitution (pledging supreme allegiance to the federal government and including a provision prohibiting secession ever again (The NC state constitution, in Article I, Section 4 reads: “Sec. 4. Secession prohibited. This State shall ever remain a member of the American Union; the people thereof are part of the American nation; there is no right on the part of this State to secede; and all attempts, from whatever source or upon whatever pretext, to dissolve this Union or to sever this Nation, shall be resisted with the whole power of the State”; this section comes BEFORE the enumeration of the rights that we know as essential human rights – the ones listed in the Bill of Rights) which would have to pass scrutiny of Congress, and required each state to ratify the 14th amendment. Only after the Southern state met each element of the Reconstruction Act (1867) would it be allowed to be “re-admitted to the Union” and be able to participate in the government that was already legislating for it. Remember that “No taxation without Representation” (the right to be represented in Parliament, the legislating body of England, if they were forced to submit to the laws it passed on them) was one reason for the states seeking their independence. The Reconstruction Acts were absolutely and clearly unconstitutional and Congress went through extreme measures to make sure that they were not challenged or struck down. President Andrew Johnson went before Congress to emphasize they were unconstitutional and what happened to him? Congress tried to impeach him (he was saved by one vote in the Senate). In the case Ex parte McCardle, the Supreme Court was not only poised to take up the issue of the constitutionality of the Reconstruction Acts but was set to strike them down. And what happened? Turns out that the lead counsel for the government was also a sitting Senator and so just before the Court was set to release its opinion, he walked across the street to the Capitol Building and urged a quick vote on a bill that would take jurisdiction away from the Supreme Court to hear the case, which they did. So the Supreme Court could not render a ruling and could not strike it down. I’m not one who subscribes to laws or policy because they “feel good” or because they might seem to be the “right thing to do.” I demand that the Constitution be upheld and I demand that laws and policies, and constitutional amendments and even court decisions, be a rightful and legitimate exercise of authority.
Oh, and if there is any confusion that the purpose of Congress was to FORCE and COERCE the Southern states to ratify the 14th amendment, note that Tennessee was exempted from the Reconstruction Acts. Why? Because it had ratified the amendment right away.
Diane Rufino, I am not trying to come across as argumentative or naive, however, what you are telling me is surprising to me.
OH gosh, Jeffrey, I know that you are only asking questions and engaging me in a dialogue that I am very happy to have.
Diane Rufino, I am willing to abide by the idea of civility and proper conduct in this forum. The only thing I would ask of you is that if you think I am wrong, please be direct about it. Don’t feel like you might offend me by being blunt and direct with your opinions.