The New Federalist Papers, volume 1

(Image credit: “Alexander Hamilton” portrait by John Trumbull, 1806, Washington University Law School)

I was browsing through Facebook the other day and I came across this article. To summarize the author’s idea, he argues that our country has arrived at a state of “irreconcilable differences” between the red and blue states. We should seek a divorce on as amicable terms as possible. In order to do this, we “blue” state denizens should accept a radical vision of states’ rights offered by the extreme right, cutting federal taxes dramatically, and take our money and implement the social programs we want. He points out that states that tend to vote Democratic also have large surpluses of federal tax paid over federal expenditures within our borders, while states that vote Republican are the reverse. If Oregon or California or New York were able to use the tax money that their citizens currently send to Washington DC, they could easily have free public universities, universal health care, functioning infrastructure, and so forth.


There are some weaknesses in the author’s ideas, but I believe the fundamental concept is sound. I have spent the last week or so thinking about this and I’d like to offer an expanded vision of how the “new federalism” would work.


First of all, this would not be an act of secession. Oregon isn’t going to leave the union and join “Ecotopia” or Canada or try to be separately independent. As a South Carolina legislator said at the time of the debate over the ratification of the Constitution, we are “too small for a republic and too big for an insane asylum”. Instead, the United States of America would continue to exist as a political entity, and there would continue to be states that would comprise that entity. It’s just that the states would have significantly more responsibilities and significantly more autonomy than in the current model.


The federal government would continue to be responsible for external defense and for preventing conflicts between the states. The author presumes that a weaker central government would also be less involved in the world. In fact, there is no single superpower antagonist to the United States, and the world situation could easily resolve itself into a multi-polar world similar to what existed in the late 19th century. That was a period of great stability in world affairs. America’s international policy during that period was one of isolationism. Perhaps we could return to our traditional view of “no entangling alliances” and have an army of 125,000 like we did in 1914. In the 19th century, the states had armies, called militias or (after 1903) the National Guard. The federal government could activate those National Guard units under certain circumstances. Some modification to current rules on Guard deployments would be required to reinforce the state-centered character of the institution while still ensuring that we have a credible deterrent against external aggression. We would still have nuclear weapons and should keep a navy and air force powerful enough to control the oceans around North America.


One of the principal benefits of the Constitution, argued the founders in the Federalist Papers, was to prevent conflict between the states. Weakening the central government, especially in our currently divided culture, might well result in inter-state conflict. The federal government would have to be strong enough to prevent these conflicts and negotiate or, in the last extremity, impose solutions on the warring parties. The last thing we want is for North America to become a zone of persistent conflict. There is some geographic inter-penetration of blue and red zones that might spark conflict, and I have some ideas farther down to help reduce that conflict.


Another national responsibility up to now has been immigration and naturalization. One of the great strengths of the American system under our Constitution has been the free movement of people, goods, and money among the states. However, immigration is one of the big issues that divides us now. People on the other side of our divide see immigration as threatening the national culture, which they see as English-speaking, European-descended, and Christian. We may have to accept some dilution of the ideal of unrestricted free movement of people in order to satisfy both sides. My suggestion for a compromise is to permit each state to have its own rules for citizenship, immigration, and naturalization. If you are a citizen of a state, you are a citizen of the United States, and you have the right to move freely between states. However, states would not required to give political rights (voting, jury duty, etc.) or some economic rights (especially employment) to citizens of other states. A citizen of the United States has rights to due process, freedom of speech, religion, assembly and association, property rights, and so on that could not be abridged, and the federal government would have to be able to enforce these rights on – perhaps reluctant – red states. This way, you could do business across state lines, ship goods (which are your property) from place to place, and travel for pleasure. If you wish to settle in a different state, that state would have the right to impose conditions on you, and could exclude dark-skinned people, people of other religions, people who speak another language, or whatever silly counterproductive thing they want. Dark-skinned people, multi-lingual people, and people with non-Christian religions would be free to move to more sensible states like Oregon and make us even richer with their skills and hard work.


A great benefit of national union under the Constitution has been a common currency, that has become the global currency with enormous benefits for our economy. In a looser federation, there would be the potential problems associated with a common currency that we have seen in the Eurozone. Alabama and Oklahoma might be like Greece and Portugal, their poverty a burden on the more developed economies of Oregon or New York. I am reluctant to call for abandonment of the common currency. It might end up being necessary, and we could go with something like the European exchange rate mechanism that existed before the creation of the Eurozone, where exchange rates were kept within predictable ranges by a central bank – the Fed, in our case – with negotiated exceptions possible for countries that couldn’t keep up to spending or growth targets.


The reason we need this divorce, of course, is because a minority of the national population in the – mostly – poorer states of the south and inland west have managed to gain control of the national government, thanks to peculiarities in the Constitution. They intend to impose their vision of unregulated capitalism, low levels of public services, ethnic nationalism, and social controls driven by an ultra-conservative interpretation of Christian moral teachings on the rest of us. Preventing the federal government from being used for these purposes is the point of the reforms proposed here.


Weakening the federal government by taking away most of its tax revenue will go a long way towards this goal, but as I have already argued, the federal government needs to keep some power to accomplish important common goals. The author of the original article argues for constitutional amendments to transfer power to the states as a way to overcome this. However, as American blacks discovered in the 19th century with the failure of Reconstruction, constitutional amendments are of little use without the power and will to make them a reality. Part of the answer to this problem is the strengthening of the National Guard and increased state autonomy in its use. I foresee a balance of power between the poorer but more militaristic red states opposed to the wealthier but less militarily-inclined blue states. In a protracted war, wealth and numbers would win out over gallant militarism – we already proved that in 1861-1865. Hopefully, cooler heads would prevail in the red states. One thing that we blue-staters will have to do, like it or not, is to continue to send our young people to serve in the national military and keep careful watch on who holds leadership positions in our common armed forces.


Another potential cause of conflict is the existence of pockets of dissent within states. So, for example, eastern Oregon is pretty red but the state is controlled by its more populous and wealthier blue urban core in the west. On the other hand, Austin, Texas is blue as can be and is surrounded by a sea of red. By divorcing, we may just transfer the conflict from the national to the state level. We’ve seen a lot of conflicts over social policies at the state level, with states like North Carolina voting to prevent cities from protecting the civil rights of LGBT people, for example. To some degree this is inescapable, palliated under the proposed system by the freedom for dissenters to move from one state to another and seek state citizenship in a friendlier environment. But people don’t want to leave their homes and places like eastern Oregon, Austin, and Charlotte, North Carolina are valuable communities that we wouldn’t want to disrupt needlessly. We may want to consider some readjustment of state boundaries in the interests of justice and internal peace. The Constitution provides for transfers of territory between states and the creation of new states out of the territory of existing ones with the permission of the state governments in question. We should aggressively use this provision to, for example, create the state of Jefferson out of southern Oregon and northern California or the transfer of urban zones in red states to blue neighbors. We might end up with some rather baroque borders, but this form of gerrymandering would serve the common good of letting people who have similar ideas live together under a congenial government. If we succeed in palliating inter-state conflicts, we won’t need to worry about defensible borders. Since we would have free movement of goods and people we won’t have to concern ourselves too much with geographical continuity for state borders. Maybe Austin could be a little island of New Mexico, or ally itself with southern Louisiana and Houston as a new blue Gulf state.


Social justice issues are another matter that divides us. The prominence of ethnic/racial nationalists in the Trump administration and in the larger Republican Party today, and the efforts in red states to limit the rights of LGBT people, suggest that if they had the power to do so they would undermine much of what we in the blue world think of as civil rights. People on the other side of the political spectrum use “social justice warrior” as a term of derision. They put ((( ))) around the names of Jewish people to “other” them in line with their expressed belief that only Christians can be true Americans. If we get a divorce from these people, we have to expect that they will impose their vision of “real Americanism” on the other side of the line. At some level, we have to be prepared to tolerate this behavior. It is part of the compromise that the new federalism implies that we are going to prove through our independent success that our vision of an inclusive multi-ethnic, multi-racial, gender/sexual orientation tolerant community is more vibrant, productive, and truly free than their American Taliban vision of the world. We can only hope that our growing prosperity and freedom will contrast with their blinkered poverty and will draw people to our side of the line or to our ideas. If we are going to remain together in one country, though, we will have to insist on basic civil rights for our citizens when they visit or transit their states. This is one of those functions that will have to remain in our smaller federal government – the power to force often-reluctant red state governments to refrain from discriminatory law enforcement and to permit freedom of speech, religion, and association to citizens of more enlightened places. Again, they don’t have to let them vote, or work, or claim state citizenship. But they do have to give them basic human rights.


One problem with this compromise is that a basic human right is marriage. And it is very unlikely that Mississippi or Oklahoma are going to be willing to recognize marriages between couples of the same sex. They might even still be uncomfortable with marriages between people of different races. This is one of those areas where we might have to accept some compromise. We would love to be able to use the Constitution to protect the basic human rights of minorities in Mississippi. the problem is, the way things are now the racists and homophobes on the other side of the aisle are planning to use their domination of the federal system to impose their views on us. This is why we need a divorce. When we divorce, they will be even more empowered to restructure their societies in keeping with their regressive agendas, but will not be able to impose those ideas on us. If we insist on fundamental due process and property rights being extended to our citizens, they probably can survive having their marriages not recognized in other states. The key to this compromise is that people who can’t live under the regressive system in a red state would be free to move.


International and interstate trade is another monopoly of the federal government under our current Constitution. I think we can and should preserve free trade among the states under the new federalism. There isn’t any strong opinion on either side opposed to it. Furthermore, while there is a hot debate over restrictions on international trade, this is not an issue that has a strong left-right polarization. Trump supporters and Sanders supporters opposed the Trans-Pacific Partnership and are suspicious of NAFTA, while Mitt Romney and Hillary Clinton supported both deals (at least until Clinton started pandering to the left during the 2016 campaign). I think we can continue to discuss what our collective policy should be towards trade with other countries without the discussion getting caught up in our irreconcilable differences.


To summarize, the proposed reform would see the federal government lose many of its existing functions. There would be greatly reduced federal taxes. I anticipate abolishing the federal income tax and having the federal government get its income through taxes on state governments in proportion to their representation in Congress, as in the original concept of our constitutional system. The federal government would lose all law enforcement responsibilities aside from enough investigative resources to detect and punish violations of the equal rights of US citizens. The military would be dramatically reduced, as would many of our foreign affairs programs. The federal government would no longer provide support for the arts, education, local police forces, energy development, and so on. Instead, those functions would be handled or ignored by the state governments, as they prefer.


As in any divorce, assets and debts would have to be divided up. As in any divorce, there would be heartbreak and tragedy involved. We would have to transfer federal assets located in red states to those state governments, leading no doubt to clear-cutting and strip mining of national parks and similar atrocities. Those states that benefitted the most in terms of transfer of federal property should be prepared to reimburse the losers with cash – this would probably work out to the benefit of us blue folks. The federal government’s liabilities to citizens, like Social Security, pensions, and the like would be transferred to the states. There would again have to be some sort of balancing in terms of cash transfers. Federal government debt would have to be transferred to the states, most reasonably in proportion to their representation in Congress as with the tax burden.


As the original author proposed, there would have to be considerable Constitutional reform. Article 2, Section 8 would have to be amended to remove the language on “uniform rule of naturalization” and perhaps ‘coin money, regulate the value…” (and the allied provision in Art. 10)  if we are going to abandon the common currency.  Art 4 Section 2, the “privileges and immunities” clause, and the similar language in the 14th Amendment, should be revised to make explicit the Slaughterhouse Cases interpretation of that language, that the “privileges and immunities” referred to are the rights of US citizens as opposed to those of state citizens. Those US citizen rights are those affirmed by the 1st Amendment (religion, speech, assembly, association), the due process rights under the 4th through 8th Amendments, and perhaps additionally an explicit guarantee of equal protection of property rights; that is, that a state cannot treat the property of a citizen of another state differently from the property of its own citizens. The various constitutional guarantees of the right to vote (in the 15th, 19th, and 24th Amendments and in various places in the main body of the text) will need to be revised to make clear that states can limit the right to vote to their own citizens and to limited groups of those citizens if they wish. The Article IV guarantee of a “republican form of government” has been very loosely interpreted by the courts but we might want to make it clear that, absent a violation of the US citizen rights of citizens of other states, states are free to have whatever form of government they like.


What I’m calling for here is a version of the Crittenden Compromise proposals made by Kentucky Senator Crittenden on the eve of the Civil War. Crittenden wanted to enshrine the “house divided” in the Constitution, ensuring that slave owners in the south need not fear that the increasing population, wealth, and industrial power of the north would one day force them to give up their “peculiar institution.” One of many problems with Senator Crittenden’s proposals was that he tried to frame them as six different amendments. Each one might have gotten a good deal of support by itself but the whole package needed to get through together to make it a true compromise. Constitutional amendments are hard to get through. Three-fourths of the states have to ratify. The amendments have to be uncontroversial. Obviously, much of what I’m proposing here is controversial as can be. It has to be accepted or rejected as a whole. Nobody on our side would accept that states will have the right to place racial limitations on the right to vote if we don’t get the protections against federal interference in our expanded social benefits and civil rights.


Back in the 1950s, as a gesture to traditionalist conservatives and in order to underline our differences with Godless communism during the Cold War, America changed its national motto from “E Pluribus, Unum” (out of many, one) to “In God We Trust”. We also added “under God” to the pledge of allegiance recited by generations of American school children. This proposal would have us turn back to that older vision of a limited national union composed of a wide variety of independent institutions.


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