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| Master of the Universe (Illustration by William Rotsaert) |
Leaders or a liege?
Governors take the high ground
The governors of New York, New Jersey, Connecticut, Pennsylvania, Delaware, and Rhode Island recently joined together to form a healthcare recovery working group to consider and develop plans to begin bringing their individual states and the multi-state region out from under the coronavirus’s cloak of darkness.
I listened in on their joint announcement, hosted by Governor Cuomo, and what I heard were state leaders who acted, well, leaderly, with compassion, mutual respect, and intelligence.
In much the same manner, the governors of the West Coast states of California, Oregon, and Washington have also linked borders to develop practical guidelines for bringing their interconnected economies out of isolation. These bi-partisan alliances speak to the inherent powers of the states to determine their own futures, respecting, as they do, the role that can be played by the federal government.
Trump takes the low road
President Trump challenged these state coalitions by making it clear on Monday that the federal government — more pointedly Mr. Trump himself — has the overriding authority to relax state-imposed quarantine rules.
As reported in the Washington Post on Monday, “The contrary approaches hinted at what could become a fractured response from state and federal officials in the coming weeks and months, marked by disagreements over who has the authority to dictate when, whether and how to begin the nation’s slow return to normalcy.”“’The authority of the president of the United States, having to do with the subject we’re talking about, is total’,” Trump said, adding, ‘The President of the United States calls the shots’.”New York’s governor, Andrew Cuomo, speaking on NBC’s “Today,” was quick to point out, “We don’t have a king. We have a president. That was a big decision. We ran away from having a king, and George Washington was president, not King Washington. So the president doesn’t have total authority.”
Three golden oldies
Perhaps now is a reasonable time for a refresher course in why the states cling closely to their rights to self-determination through a look back at three salient documents that inform the States’ confidence in their primacy over outrageous federal fiats: Federalist 1, Federalist 10, and the 10th Amendment.
Alexander Hamilton before the musical
In Federalist 1, published by Alexander Hamilton on October 27, 1787, Hamilton sets the stage for the national debate which set the boundaries for the chief executive and which encouraged the public to dismiss any royal pretenders or avaricious players, noting, in these passages, the features and forces which may not be in the best interests of the nation’s future success, and which must be viewed critically despite personal, financial, or political affections. (All bolding is mine for emphasis)
“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.”“Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.”“And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.”Note that Hamilton pulls no punches when describing the characters of would-be leaders who would be most apt to use high office for personal, familial, and crony gain: “a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country…”
The man had vision, of that there is no doubt.
James Madison cuts to the chase
A brief look at the Federalist 10, written by James Madison in November of 1787, is also certainly in order. (Spoiler alert: at no place in either the Federalist Papers or in the language of the 10th Amendment is there the phrase “The president of the United States calls the shots.”)
As an ardent admirer of the Federalist Papers, Federalist 10 holds for me some of the most crucial arguments for what eventually became our form of constitutional government — a republic based on apportioned, elected, representation rather than a pure democracy of 330 million disparate voices.
Federalist 10 does more than encourage a republican form of government, however. In Federalist 10, Madison defines the economic, moral, and ethical quandaries surrounding the question of how a republic should operate despite the presence of factions, or, as they evolved to today’s lexicon: political parties, special interest groups, and citizen-politicians of unbridled wealth and property.
A matter of earned trust
The trick, Madison said in Federalist 10, was to convince those broadly-distributed citizens with specific and local interests — farmers, merchants, tradesmen, fishermen, etc. — to trust a compact leadership composed of privileged men imbued with, perhaps motivated by, their own, very disparate goals (rich guys with land and their own interests to protect) to fairly represent the broad concerns of all the people. Up until that time, the Articles of Confederation had not been successful in uniting the myriad interests within the 13 states under one common roof.
Madison put it this way:
“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 immediately acknowledged that such doubts had merit:
“However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true.”
Beyond the dysfunction
This is an “ah-ha” moment in Federalist 10. It is from this jumping off point that Madison addressed the root cause of concern about the ability of a republican form of government operated by representatives of the people to carry out its duties faithfully despite the influences of factions.
Madison is urging his readers to look past the dysfunction of the system (“That damn Congress gets nothing done!”) and examine the motives of the operators and the agendas of the factions that underpin those motives (“Those damn bankers are controlling everything!”). He writes:
“It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other.These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed [sic] to the rights of other citizens, or to the permanent and aggregate interests of the community.”
“[A]dversed to the rights of other citizens … and aggregate interests of the community” is about as clear a denouement of mischievous factions that Madison could send to the special interests of the time.
Through Federalist 10, Madison was alerting the public to the very real possibility that, if left unchecked, special interest factions would try to play one side against another for reasons of avarice and personal emolument (and there’s that word).
It appears to me that Madison’s Federalist 10 warning of the potentials of mischief by certain citizens whose camouflaged interests lie outside the scope of their official, elected, duties, is an eloquently-barbed spear of reproof hurled from the 18th century directly into the heart of the Trump administration and its wealthy cronies two-and-a-half centuries distant.
So far, the Trumpian heart continues to beat with an unnatural rhythm, its cold pulse unaffected by the heat of the Federalist flame, civic passions, or pandemic deaths.
The dangers of would-be kings
Now, President Trump, as of April 13, is insisting — bullying from his bully pulpit — that he (acting as the federal government) has the ultimate say over the States’ mutual and independent decisions to reopen the businesses, and unquarantine the citizens within their borders.
Trump is just as surely creating division within the country as a whole as if he were to advocate for any state to secede from the union. When Trump tweets to his chosen audience, he is creating and encouraging dissatisfaction, dissension, and distrust among factions within our society — notably squawking about the “fake media.”
Trump’s actions at his Monday press conference cum campaign propaganda, echo the calls of the selfish factions fomenting separation of the 13 states uneasily connected in 1787 by the failed Articles of Confederation. If Trump’s goal is to divide and conquer, he must first scale the wall of the Constitution…and that, as we see in the Federalist Papers, is a high wall indeed.
The power of the 10th
What Trump refuses to see or learn
Let’s look at how Trump’s my-way-or-the-highway approach goes down with the Constitutional experts at Lawfare as offered as recently as mid-March:
“First and foremost, states currently retain power to decide who stays home and for how long. The 10th Amendment expressly reserves to the states those powers not delegated to the federal government. As the Supreme Court has explained, the Framers “rejected the concept of a central government that would act … through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people.” The 10th Amendment codifies the U.S. system of dual sovereignty and makes clear that, although the states surrendered many of their powers to the federal government, they retain “a residuary and inviolable sovereignty” over those powers not assigned to the federal government.“Among the powers generally reserved to the states is the authority to quarantine individuals and otherwise protect public health. The regulation of the health and safety of individuals “is primarily, and historically, a matter of local concern,” the Supreme Court has held. Accordingly, “[s]tates traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.”
Our first president refused a crown
Eight years after the publication of the Federalist Papers, and six years after the new Constitution had been ratified by the states, George Washington reflected on the concerns voiced by Madison in Federalist 10. In his 1796 Farewell Address, the aging patriot wrote:
“I shall carry it with me to my grave as a strong incitement to unceasing vows that Heaven may continue to you the choicest tokens of its beneficence; that your union and brotherly affection may be perpetual; that the free constitution, which is the work of your hands, may be sacredly maintained; that its administration in every department may be stamped with wisdom and virtue; that, in fine, the happiness of the people of these states, under the auspices of liberty, may be made complete by so careful a preservation and so prudent a use of this blessing as will acquire to them the glory of recommending it to the applause, the affection, and adoption of every nation which is yet a stranger to it.”
Oh, bitter GOP irony
One of the great ironies of today’s 10th Amendment debate is that for decades, the Republican Party wrapped itself in the banner of States rights, shouting from every GOP mountain top how the sovereignty of the States was sacrosanct — untouchable by the federal government. With the rise of the Obama presidency, Republican policy makers, afraid of the Democrats’ alleged aspirations to cleave States rights from the people and increase federal powers, began to feel the sands of their own power shift beneath their Gucci-shod feet.
As reported in The Hill five years ago this month, Rep. John Culberson (R-Texas) and Senator Sen. Roger Wicker (R-Miss.), announced their support of legislation that would give state government officials the right to challenge any rule proposed by either a federal agency or the president that they think infringes on their 10th Amendment rights.
Say what?
In what must be one of the great switcheroos of political position-taking, Rep. Culbertson said, “President Obama pledged to use a ‘phone and pen’ to push through his liberal agenda against the will of the people, and thanks to his unconstitutional executive actions, there is very little left in our personal lives or in the realm of original State authority that the federal government does not control. From illegal amnesty, to Obamacare, to the IRS scandals — no president has shown greater disregard for individual liberty and states’ rights.”
Until now, Mr. Culbertson…until now.
With his Monday diatribe…nay, his tantrum…President Trump put to rest any doubt that the Republican Party has little interest in the rights of the States to decide issues of health and safety for their citizens.
Dangerous times and a remorseless president
We live in dangerous times when a president believes in his ascendancy to a throne, when he poses and postures with the pomposity of a deranged king, when his lackeys are busily crafting and polishing his crown, and when those who call him out for his irrational aspirations are reviled, disrespected, and labeled “fake.”
A letter to our past
President Washington, we are on the cusp of a new revolution — pitting despotic power against democratic values. You might think me mad from your remove of 224 years, but that national battle between good and evil, between the Republic of States and their citizens and a would-be ruler and his fawning lords and mindless serfs — is no longer a mere hypothetical.
Your earned wisdom — informed in part by the hard lessons of war and executive leadership, and in part by the lessons of Madison and Hamilton — seems to be receding from public appreciation as we draw ever closer to a Trump reelection and coronation.
We need your wisdom and the Federalists’ lessons now more than ever.
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