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Monday, August 15. 2011
Volokh: Distinguishing Wickard
The issue at hand, it seems to me, is whether there are any real limits to federal power these days. Seeing as we were a nation founded on the principle of limits on central power, it's an important discussion, to put it mildly. Some say that debate was over many years ago.
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Whenever we discuss the erosion of state power and increase of federal power, FDR is always the locus around which the discussion revolves. But the fact is, he was not the first offender, and he certainly isn't the reason others do it. Oddly, we have to look back to one of our great presidents and heroes - Abraham Lincoln.
Lincoln's REASONS for employing federal power and perogative were typically different than those of FDRs, and we can usually wash away discussing him in this regard quite easily. He was faced with a crisis of the union, whereas FDR only faced something which many before him had faced - a deep economic depression.
What was different for Lincoln? Interestingly, not a lot. In fact, Lincoln was ALSO faced with moribund economic activity as the gold-based currency was stretched to its limits due to debt (a good reason to reinstitute gold standard right now!). As a result, he (not being the first president to do so, but the one who did it in the most meaningful way) introduced the "Greenback" or a fiat currency - backed by the full faith and credit of the US government.
This was not the least of his transgressions, and in some ways he saved the economy by doing it. But it was an important step, because it set the precedent for presidents AFTER him to utilize crises as a means of eroding state power and increasing federal power.
Because Lincoln did it, and usually he did it with positive results (for very specific time and place oriented reasons), many others could do the same thing pointing to Lincoln's results as a reason to do similar things, later.
Of course, Lincoln usually increased the power of the federal government as a TEMPORARY step, whereas others after him did it in more permanent style.
But consider that the Emancipation Proclamation, and the Civil War, were both clear expansions of Federal Power. And both had very permanent repercussions. I'm not going to say both were negative events - but the long run movement of political history since then has seen more behaviors LIKE this, rather than fewer. That is, that the Federal Government has the right to reduce state power if the goal is to "save the union".
I guess Obamacare is a "good" example of this. Because lord knows that if we don't have national health care, the union will dissolve and we'll have a civil war over health.
If I'm not remembering my history, I could be wrong....but....this was the whole reason why NOBODY wanted to push through health care with a simple majority. They generally recognized it was a polarizing issue and needed a supermajority to put something that would be recognized as being of value. Obama's decision to push it through BECAUSE HE COULD was the deciding factor....and had little or nothing to do with recognizing the political situation in play.
I view the Civil War (we call it the War of Northern Aggression down here!) as very much a double edged sword. There was good - slavery was abolished, but the bad was the loss of state sovereignty. I believe that was the event that marked the beginning of the end of state sovereignty and even state identification. There were lots of other subsequent factors that have eroded it further and I don't think they are all political (eg. with easier travel, the states have become a lot more homogenized).
In my mind, it is still an important issue - actually a defining one - since it is not only cultural but is part of the mechanism that spreads power to more dispirit bodies so that there is less concentrated in any one place. Also, as many have stated, it becomes a method of both experimentation and choice.
It could be that for practical reasons, subdividing power is more efficient in a country as large as the US, but that misses the point by a wide margin. It's about freedom.
The whole point of the Civil War was NOT the abolition of slavery (as so many people claim). If that were the case, the Emancipation Proclamation would've been signed on day 1. No, the whole point was to PRESERVE THE UNION.
Which, in and of itself, is a noble enough cause. But hardly one in which the very basis of the Constitution should be put at risk.
Slavery was just the catalyst surrounding many larger issues (many involving federal tariffs that benefited the North versus the South). And while I may be from the North, I'm not fond of the methods employed in beginning the war.
Sure, South Carolina and the states that followed were "wrong" to secede. But I agree that the North (Lincoln) pursued a path which was geared toward provoking an armed response. He did renege on at least one agreement set by his predecessor regarding supplying forts.
It's possible that other solutions could've been pursued, and for a man who was as diplomatic and able as Lincoln, it's possible they could've been pursued. But the South did not view him as pliable on the issue of slavery (though he certainly was).
In many ways, it's like the issue of Obama and the Tea Partiers today. They are pliable on taxes - as part of a larger reformation of the tax code. Obama says they are NOT pliable on this issue (clearly he is lying, but he is pursuing an agenda by stating this). The Tea Party KNOWS Obama lacks a backbone - so why not push?
It does make them look bad, but in the long run, they are going to make their point. It's about time the right had a win in the long battle to push back the growth of government. As wins go, Obamacare will likely prove to be Pyrrhic in nature.
I agree with you about the Civil War vis a vis slavery. As you state, slavery was a catalyst and the end of it was a result (largely for political reasons). My sense of it was that because the votes could not be found to legally end slavery, the North punished the south economically for their support and practice of slavery.
I disagree that the southern states were wrong to secede. It was a voluntary union which should be able to be dissolved voluntarily:
"When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another..."
If a state cannot leave the union, then it has to put up with everything the government does to them. It's a freedom thing.
I think eventually slavery would have ended in the South (and the North) on its own, but it would have taken a lot longer. Ideally, the principle of equal rights would have guaranteed freedom to the slaves after the Revolution, but it was the one deal with the devil that had to be made for the Revolution to succeed at all.
As for how Zero fits into the history of Federalism (is he continuing the erosion of it or sparking a rebirth), only time will tell. Up till now, he's just been another in a (bi-partisan) line of presidents who have eroded our rights. The next president - even the next few presidents - cannot bring it back. We have to do it ourselves.
When I say "wrong to secede" I don't mean it wasn't within their right to.
I mean I think it wasn't in their best interest, and that other avenues existed that would've been more peaceful and beneficial - but they chose NOT to pursue these.
I agree, slavery was ending. It simply wasn't going to carry on much longer if the South sought to modernize. But saying this means you support it, in some people's skewed minds.
Agreed. There will always be those who need for you to "say" what they want you to say for their own purposes rather than hearing what you actually said.
Touching Wickard, Fillburn and the Interstate Commerce Clause: what the dickens is the federal government doing trying to manipulate interstate markets for goods or services?
The purpose of the ICC was to end the tariffs between the states and stabilize the currency used across state boundaries. It was not to decide where people should grow wheat or skin beavers or herd cattle, nor who should, nor how many of each. Such decision-making is characteristic of despotism, and I mean that exactly like it sounds.
Free people work out what to produce and sell. The government has a role in facilitating such activity and keeping it honest. Not running it.