Pardon the dust, centralization in progress

A couple of weeks ago, California became the 8th state, joined by the District of Columbia, to pass a law that will give all of its electoral votes to the winner of the nationwide, popular vote. In order for this law to take effect, however, a number of states whose combined electoral votes total 270 (enough to win in the electoral college) must all pass similar legislation. If that happens, then the electoral college, while (likely) still in place, would be rendered moot.

Disturbingly, this change seems to have broad appeal and public support. According to Gallup surveys in 2001 and in 2004, about 60% of the population supports electing the president by popular vote. Editorial writings seem to hold an especially dim view of the federal government's presidential election process, stating that "[i]n a country that purports to be the world's greatest democracy, the Electoral College is an undemocratic embarrassment." Politico says that the bill signed by (California's) governor Jerry Brown is "designed to fix our broken presidential election system." And according to nationalpopularvote.com, 2,110 state legislators have endorsed the change.

I say disturbingly because this represents a serious misunderstanding of the nature of the design and history of the federal government. There is evidence for this in Ali Velshi's comments on Jon Stewart's show from earlier this week (starting at about 4:50, specifically 5:18) in which he complains that members of congress are representing their constituents instead of the "entire country":

In his comments, he explicitly states that he believes that there is some solution to our problem(s) that benefits everyone. For someone who reports on business and markets, this is a surprising position. It has a very "central planning" ring to it. That is, if we would all just trust the government, they'll do what's best for us because they know best. But a discussion of (the evils of) central planning is for another article. More to my current point, who should representatives represent if not their constituents -- the very people who elected them? Representatives are not sent to congress to do what's best for the country. They're sent to represent the interests of their constituents -- apparently much to the chagrin of Mr. Velshi -- and in doing so, the ideas that move forward are the ones shared by a majority of the people. (Don't get me wrong; I'm no fan of democracy or what has become of our republic.)

This misunderstanding extends beyond the punditocracy, though. I found this comment (repeated in a blog by an author who took issue with it for a different reason):

...no federal protections for us is just a wee bit troublesome too; we're either one country or fifty different ones. You can't have one State treating minorities as equals while another treats them like dirt.

The fact is that the United States are (or were intended to be) fifty different countries. Because these countries are small and share a common geography, they decided to form a federal government that would allow them to act together for mutual benefit in areas like defense and economics. This federal government was never intended to regulate individuals so much is its function was to govern the states. The states would in turn govern their individual populations. (I've written previously about the sovereignty of the states.)

If the federal government were kept small and limited to its original intent, then

dysfuctional state policies are constrained by the possibility of "voting with your feet." If a state imposes overly high taxes, adopts flawed regulations, or provides poor public services, people and businesses will tend to migrate elsewhere, thereby incentivizing the state government to clean up its act in order to preserve its tax base.

Instead, as the federal government grows and the states weaken, this ability to vote with one's feet will be no more. If you think that the taxes, regulations, or public services of a particular state are bad, wait until they are uniform nationwide. Make no mistake, giving the presidential election to the winner of the popular vote has nothing to do with furthering democracy or preventing what happened to Al Gore in 2000 (something that has happened only 3 other times in the 200+ year history of the U.S. federal government). It's ultimate effect will be to push state power and sovereignty further and further into obscurity until all political power is fully centralized at the federal level.

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I didn't have the space to delve more deeply into the evils of central planning or other problems with the proposal to elect the president by popular vote. Some of those are addressed in an editorial by the Las Vegas Review-Journal. In that editorial, I found a reference to a doctrine often (incorrectly, it would seem) attributed to Alexander Fraser Tytler. It reads:

A democracy cannot exist as a permanent form of government. It can only exist until the majority discovers it can vote itself largess out of the public treasury. After that, the majority always votes for the candidate promising the most benefits with the result the democracy collapses because of the loose fiscal policy ensuing, always to be followed by a dictatorship, then a monarchy.

It sounded very apropos and also reminded me of this quote, attributed to George Washington:

The last official act of any government is to loot the treasury.

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Wikipedia also summarizes some of the theory behind indirect election of the president.

The State or the people: who is sovereign?

A few months ago, I wrote an article about what I saw as the demise of the rule of law. In it, I used the Obama administration's aggressive war against Libya to illustrate that the United States are no longer ruled by law(s). Instead, I argued that their federal government essentially does what it pleases because not only does it make the laws, it is also (solely) charged with enforcing them, and also with interpreting whether those laws are legal. (The legality of laws is a subject for another post.) I pointed to the U.S. Constitution as the source of authority for the federal government and also as the limit of that authority. However, as I've intimated in the past, and said outright in the "rule of law" post, the federal government has become the arbiter of its own power.

That post prompted a series of emails between a reader and myself about the nature of the federal and state governments, the U.S. Constitution, and sovereignty. The reader told me that the U.S. Constitution, in and of itself, was never meant to restrain the federal government. When one really stops to think about it, there's no way that it could. As I pointed out above, the government makes, enforces, and determines the legality of the law(s); there's nothing to stop it from doing whatever it wants. In addition, the U.S. Constitution doesn't even grant any branch of the federal government the authority to carry out that last task. The Supreme Court arrogated that power unto itself in Marbury v. Madison, but I digress.

Instead, the reader contended that it was up to the states and the people of them to restrain the federal government. He continued, though, that the War Between the States essentially crushed that ability. The following Supreme Court case of Texas v. White declared the act of secession illegal. By declaring secession illegal, the federal government was basically declaring the states were not sovereign (any longer). These occurrences, in his view, were the real source of the demise of the rule of law, at least as I portrayed it in my writing. If the states are not sovereign, if the federal government is the supreme authority, then the 9th and 10th amendments to the U.S. Constitution were and are worthless.

Now, the notion that the states were independent, sovereign nations is not foreign to me. It has always been my understanding that the U.S. Constitution was not an act of the states giving up their sovereignty to create a central government but rather one of delegating some of their authority to the federal government in order to smooth and strengthen economic and/or foreign relations. The reason they delegated the authority is not important; what is important is that the authority was delegated, not relinquished. What was foreign to me was what this reader said next: [T]he people of each state are the state's true ruling sovereigns [...] and all government was simply their delegated representatives, not appointed supreme sovereign rulers. Therefore, the People of a state could exercise their national sovereign authority, to overrule those delegates at any time—just like the King of England could overrule his ambassadors.

Until hearing this, my understanding of American government was that the states and/or the U.S. (as a whole) were sovereign nations, that the "government" was, collectively, its ruling sovereign, and that phrases like "of the people, by the people, and for the people" were simply figures of speech meant to convey the idea that there is no divine right to rule (i.e. no king or queen), that the people control the government (via the ballot box). This was the first time I had been introduced to the idea that the people, themselves, were the true ruling sovereigns. Tom Woods explains it quite succinctly:

In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

Where does this idea originate? Is it true? If so, how did I miss it? Since the aforementioned reader pointed to the War Between the States as ending state sovereignty, I started there. I already mentioned the case of Texas v. White in which the Supreme Court ruled that secession is illegal under the U.S. Constitution. I also came across a quote from Lincoln's first inaugural address:

The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was "to form a more perfect Union."

This quote asserts idea that the Union predates the U.S. Constitution but also gives rise to idea that the states were created by a central government, not the other way around. The former is obviously true -- the "union" existed in various iterations prior to the Constitution -- but the latter has no basis in fact. In reality, the Articles of Association merely created a loose association by which the colonies (at the time) banded together to boycott British goods in retaliation for the Intolerable Acts. No central government was created by these articles. In fact, enforcement of the articles was left entirely up to the colonies themselves. Then, just prior to the Declaration of Independence, the Second Continental Congress recommended that the individual colonies "adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents".

It's probably worthwhile, at this point, to stop and look at a few of the constitutions drawn up by the colonies. New Hampshire: "The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state". Massachusetts: "The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state". North Carolina: "All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only [...] The people of this State have the inherent, sole, and exclusive right of regulating the internal government". Virginia: "A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers".

All of the states' constitutions of the time contain similar language. Even Hawaii, the last state admitted to the union, has very similar language in its constitution: "All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people". The point of this exercise is to demonstrate that 1.) the states predate any central/federal government, 2.) the states were independent, sovereign nations, unto themselves, and 3.) the people of the states were their sovereign rulers. These facts are recognized in other documents of the time. The Declaration of Independence: "We [...] solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States". The Articles of Confederation: "Each state retains its sovereignty, freedom, and independence". The Treaty of Paris in 1783: "His Brittanic Majesty acknowledges the said United States, [list omitted], to be free sovereign and independent states". The 10th amendment to the U.S. Constitution which confirms that powers were delegated, not relinquished: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In short, the states are sovereign nations, and according to their constitutions, the people are their sovereign rulers. I've pointed to a number of old documents confirming this, but here is something more recent. The Department of State lists (see page 289) the Treaty of Paris' Article 1 (the article mentioned above) as still being in force as of January 1, 2010. Even the federal government, however obscurely, still recognizes that the states are sovereign. It is up to the people to (re)assert this sovereignty.

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In light of the recent 60 Minutes report on CBS about Sovereign Citizens, it is worth noting that I am not now, nor have I ever been a member of the movement depicted in the report. While I obviously support the idea that the people of the United States are its/their rightful "rulers", I don't support support the violence perpetrated in the name of furthering this idea.