States’ Rights and Divided Sovereignty

States' Rights and Divided Sovereignty
By Daniel McCarthy • August 3, 2012, 5:13 PM

Last month found me in Las Vegas for FreedomFest, the annual gathering of libertarians, supply-side Republicans, investors, coin dealers, and other free-market types assembled by Mark Skousen. TAC hosted a panel on republicanism vs. empire, featuring associate publisher Jon Basil Utley, contributing editor Sheldon Richman, and yours truly. That went well, but even better was seeing friends I only run into a few times a year ­ people like Tom Woods, Anthony Gregory of the Independent Institute, Antiwar.com's Angela Keaton, and Jeffrey Tucker of Laissez-Faire Books. (Speaking of books: the steeply discounted wares of the Liberty Fund's publishing division are also a draw.)

Talk among the usual suspects at one point turned to states' rights and the compact theory of the federal Union, as against the Marshall/Webster/Lincoln claim that the Union preceded the states. I agree with historian Forrest McDonald that the latter is "untenable," but compact theory itself can mislead to the extent that it makes the unhistorical mind think of American states as something like nation-states in alliance. They've never been that: the original colonies-cum-states were always embraced and complemented by some larger authority, first the British crown, later the "continental" institutions of Congress and  Army, the Articles of Confederation, and finally the U.S. Constitution. To take one side without the other ­ to neglect the traditions of local self-government Americans have enjoyed since colonial times or, conversely, to overlook the obvious fact that this never amounted to the degree of autonomy one finds in any self-respecting nation-state ­ is to misunderstand the American experience profoundly.

Political theory since Bodin and Hobbes has held that divided sovereignty is a recipe for disaster, and the two big wars Americans have fought on their own soil seem to bear this out. The Civil War, of course, involved the question of whether states could assert their sovereignty by leaving the Union ­ and whether the Union could assert sovereignty by forcing them to remain. The Revolutionary War was also a case of a breakdown in overlapping claims to sovereignty.

The Revolution came about as the American colonists decided that the central authority of the King of England and his Parliament jeopardized the continuation of their local self-government. Colonial self-government itself underwent a revolutionary transformation during the rebellion, to be sure: new charters had to be drafted to restate principles of legitimacy and basic procedures of government now that the former colonies were breaking away from the structure of law and authority that had earlier defined their powers. Americans took the opportunity to carry out other reforms as well ­ Robert Nisbet has noted that the revolution hastened the abolition of laws of primogeniture and entail, for example.

Nisbet points to this as one reason why the American Revolution was a genuine revolution, if "revolution" means sweeping action to uproot feudal institutions. That the Americans were also in revolt against what they saw as innovations from the imperial metropole, and fought for what really were long-established traditions of self-government, makes the revolution conservative in some senses as well. It's not a paradox: when you have divided sovereignty, what may be revolutionary with respect to one sovereign can be conservative with respect to the other. Once the balance between them is disrupted ­ the balance itself being the most "conservative" condition ­ either side might reasonably make the case that it's only trying to uphold the old way of things. (Though in fact, plenty of revolutionary Americans were excited about doing things, including ruling themselves, in new ways.)

(Jack P. Greene's The Constitutional Origins of the American Revolution is a good place to turn for an understanding of the multiplicity of constitutions ­ local and written and imperial and unwritten ­ under which the Americans were living. Nisbet's take can be found in his essay " The Social Impact of the Revolution." And see States' Rights and the Union: Imperium in Imperio, 1776-1876 for Forrest McDonald's thoughts on the subject of this essay.)

The newborn states under the Articles of Confederation had a greater measure of autonomy than they had had under the British empire or would have under the Constitution of 1787. But it's debatable whether the overall political power to which Americans were subject had been reduced: the redistribution of power is more striking than its limitation, an impression that holds true once the U.S. Constitution is adopted as well. This is one reason why libertarians ­ or anyone concerned about liberty, whatever dogmas he may or may not subscribe to ­ should not over-invest in states' rights. Reducing centralized power is not the same thing as reducing power in toto, and historically Americans have preferred to maintain some ambiguity about the seat of practical sovereignty.

Certainly it would not advance the cause of decentralization in the abstract to turn federated states into absolute nation-states with plenary powers: that would itself be a kind of centralization and consolidation of power. Federalism is what makes decentralization possible even at the conceptual level. There's a strain of anarcho-libertarian theory that imagines decentralization can proceed to an ever further degree, until individuals "secede" from the most local government. But in practice virtually all sovereignty-splitting secessions create nation-states, which are themselves often more consolidated than what preceded them. A loose empire gives way to a tight, more or less ethno-religiously homogeneous nation-state.

That can be a good thing. The secessions that tore apart the Soviet Empire at the end of the 20th century were characteristically nationalist. But it can also lead to conscription, war, and civil repression, particularly of minorities. Either way, the nationalist impulse ­ which is both anti-imperial and anti-federative ­ has been overwhelmingly powerful over the last two centuries, and in America nationalism tends to be attached to the Union: no individual state possesses any measurable "national" identity, which is why secession is a dead letter. Losing a war and being conquered, after all, need not be an obstacle to forging a national identity; quite the contrary in the experience of many European nations. But even when America's southern states did secede in the 1860s, they quickly adopted the traditional pattern of local-and-federated sovereignty. It may defy Hobbes and Bodin, but this patterns seems to be as deeply ingrained in American political habit as anything can be.

Whatever its defects where questions of sovereignty are concerned, this pattern may be useful in preserving liberty ­ if the people recognize the pattern and understand the kind of liberty it permits. The concentration of power that revolutionary Americans feared is a two-headed monster: the national government is one head, but the states themselves are the other. They are all "states" in the sense that libertarians are concerned about: coercive political bodies.

Federalism is the characteristic means Americans have chosen to defend themselves against untrammeled power at both levels. It's a conservative ideal, but it may also be the wisest path for libertarians, entrusting freedom not to any head of the hydra but to the complex system of alternatives and mutual correctives that sovereign plurality entails.

http://www.theamericanconservative.com/states-rights-and-divided-sovereignty/