Opportunity and obligation

“Freedom is indivisible. As soon as one starts to restrict it, one enters upon a decline which is difficult to stop” – Ludwig von Mises

The Friday Letter / No. 464 / from Tallahassee, Florida

Recently, it seems we have been witnessing, and experiencing, an increased pursuit by our national government to expand and consolidate its authority over the several states, well beyond the powers enumerated and delegated to it by the U.S. Constitution. Unfortunately, this is by no means a new phenomenon, for these dynamics of conquest have been aligning since the ratification of our constitution back in 1789.

The unbridled behavior of our national government is a reflection, or should we say manifestation, of the predictable human nature that the Founders fully comprehended. This fundamental understanding or Biblical worldview of the human condition is what many consider to be the genius of the authors of our founding documents.

It is the insatiable desire for “ambition and avarice,” or the unrelenting quest for power and money that we are all consecrated to. As the book of Ecclesiastes in the Bible says, “There is nothing new under the sun.” The dictator will not suddenly become benevolent. It is this inevitable misbehavior that the Founders warned us of and prepared their successors for. In turn, they provided contrivances to check it and constitutional remedies to mitigate it.

Regrettably, the states themselves, who were empowered and expected to be a check and balance to centralized power, have allowed this situation to slowly degenerate over time and now they are challenged to put the genie back in its bottle. Fortunately, a reckoning is being reached and some states are beginning to assume their moral responsibility to restore the balanced federalism established at our founding and repel the overreach of the national government.

Whether viable or not, we are now seeing proposed resolutions for secession, proclamations of “constitutional sanctuaries,” and other innovative legislative solutions that are sparking a long-needed debate on the pending dilemma. State legislators have a clear and present opportunity, and obligation, to address this direct assault on state sovereignty and individual freedom. For anyone who is elected and serves in a state legislature, this must be a priority. Although state policy issues are certainly important, there needs to be a renewed focus and more energy dedicated to matters of basic governance, or civics.

Using unambiguous language, U.S. Supreme Court Justice Hugo L. Black opined that American federalism means “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate State governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”

The Founders envisioned the states as “laboratories of democracy,” a phrase coined by U.S. Supreme Court Justice Louis Brandeis, who described how “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”  Instead of unconstitutional edicts emanating from a centralized government in a one-size-fits-all approach, let the states individually experiment in the policy arena and compete amongst each other for favor and popular support.

Federalism is, by definition, the consensual agreement of delegated powers and authority between the several states and the national authority. As James Madison articulates in Federalist 39, our federal government structure leaves to the states their sovereignty and power over everything else, which cannot be violated by the national government. State authorities have their own distinct and independent legal supremacy defined in the U.S. Constitution and 10th Amendment.

And then we have the so called “Doctrine of the Lesser Magistrate,” which can be compared to the predicament that the states currently find themselves in with the national government. This theory of resistance to authority was first detailed in the Magdeburg Confession of 1550. It teaches that when a higher magistrate has become an incurable tyrant (defined within a very limited set of criteria such as the U.S. Constitution), he has abdicated his claim to legitimacy and the lesser magistrate may interpose on behalf of its constituency.

Apparently, the Founders embraced this concept when they codified it in the constitution and granted the states (the lesser magistrate) their validity for interposition with the citizens of their state. Now, to save our republic, all we need is for our state legislators to better understand and appreciate some basic civics and the doctrine of the lesser magistrate.

Jim Kallinger served in the Florida House of Representatives and is founder and president of the National Association of Former State Legislators. He wrote this essay for The Friday Letter. Contact him at james.kallinger@nafsl.o

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Recommended reading

“Four-star admiral photo-op” by John Lucas at American Greatness
“The ignoble lie” by Victor Davis Hanson

Steve Combs is on vacation. His column will return next week. Many thanks to Jim Kallinger for writing this week's commentary.