Abstract
“[T]he preservation of liberty,” wrote John Taylor of Caroline, “must depend on the division of power between the state and federal governments.”1 With an eye to securing and maintaining the most cherished liberty of all, the right to self-government, Jefferson and Madison made the proper division of legislative sovereignty the cornerstone of the Kentucky and Virginia Resolutions. By nullification and interposition, Jefferson and Madison sought to give the states a weapon to thwart the national government’s encroachments. Though we are over two centuries removed from the Revolution of 1800, concern for the proper division of legislative sovereignty is just as relevant today as when Jefferson and Madison feared for the future of republicanism in America. Considering that our puissant national government scarcely resembles the government of “few and defined” powers that Madison described in the Federalist, an appreciation of federalism is perhaps more vital today than ever before.
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Notes
See John Taylor, Construction Construed, Constitutions Vindicated (New York: Da Capo Press, 1970) (1820) p. 58.
Edward L. Rubin, Puppy Federalism and the Blessings of America, in Frank Goodman, ed., Annals of the American Academy of Political and Social Science, March 2001, p. 38.
But see George P. Fletcher, Our Secret Constitution: How Lincoln Redefined American Democracy (New York: Oxford University Press, 2001) p. 10 (arguing that our nation was supposed to resemble European nations more than we realize).
See Daniel J. Elazar, Covenant and Polity in Biblical Israel (New Brunswick, N.J.: Transaction Press, 1994).
Johannes Althusius, Politica, Frederick S. Carney, ed. (Indianapolis, Ind.: Liberty Fund, 1995) (1603).
See, e.g., James T Patterson, The New Deal and the States: Federalism in Transition (Princeton, N.J.: Princeton University Press, 1969) p. 207 (observing that dual federalism died “because the states alone, for good or ill, have lacked the potential to solve the problems of urban, mid-twentieth century America”);
Jane Perry Clark, The Rise of a New Federalism: Federal-State Cooperation in the United States (New York: Russell & Russell, 1965) p. 293 (“ [A] federal system of government proves to be a ineffectual pill for curing the economic and social earthquakes of today”).
For a refutation of the view that higher speed limits lead to more traffic fatalities, see Stephen Moore, Speed Doesn’t Kill: The Repeal of the 55-MPH Speed Limit (Washington, D.C.: The Cato Institute, 1999) (observing that the fatality rate fell after 1995 in states adopting higher speed limits).
See, e.g., Herman Schwartz, The Supreme Court’s Federalism: Fig Leaf for Conservatives, in Goodman, supra note 4, pp. 119–31 (arguing that states’ rights have always been used to oppress and that modern calls for federalism are nothing more than continued efforts by certain majorities to oppress minorities); Paul E. Peterson, The Price of Federalism (Washington, D.C.: Brookings Institution, 1995) p. 9 (“[T]he powers of state and local governments have been used too often by a tyrannical majority to trample the rights of religious, racial, and political minorities.”). But see Marci Hamilton, Are Federalism, and the States Really Anti-Civil Rights, as Liberals Often Claim? (2003) (http://writ.news.findlaw.com/hamilton/20030102.html) (arguing that “[t]he anti-civil-rights states the liberals are decrying, however, don’t really exist anymore—as evidenced by the fact that the problems liberals point to are decades old.”).
See, e.g., John C. Calhoun, Speech on the Reception of Abolition Petitions, in Ross M. Lence, ed., Union and Liberty: The Political Philosophy of John C. Calhoun (Indianapolis, Ind.: Liberty Fund, 1992) pp. 463–76; Southern Manifesto on Integration, in 2
Melvin I. Urofsky, ed., Documents of American Constitutional and Legal History (New York: Alfred A. Knopf, 1989) p. 261.
See Forrest McDonald, States’ Rights and the Union: Imperium in Imperio 1776–876 (Lawrence, Kan.: University Press of Kansas, 2000) (chronicling the use of states’ rights by both Northern and Southern states when clashing with the national government);
James Jackson Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago, Ill.: Henry Regnery Company, 1957) (same).
See Douglas Ambrose, ed., Henry Hughes and Proslavery Thought in the Old South (Baton Rouge, La.: Louisiana State University Press, 1996) pp. 118–38.
Garrison quoted in John L. Thomas, The Liberator: William Lloyd Garrison (Boston, Mass.: Little, Brown and Company, 1983) p. 329; for a general discussion of Garrisons theory of secession, see Thomas, supra, pp. 305–37;
John Jay Chapman, William Lloyd Garrison (New York: Beekman Publishers, Inc., 1974) pp. 155–7.
Garrison quoted in Jeffrey Rogers Hummel, Emancipating the Slaves, Enslaving Free Men (Chicago, Ill.: Open Court, 1996) p. 21.
Ibid., pp. 354–5; see also Robert Brent Toplin, The Abolition of Slavery in Brazil (New York: Atheneum, 1972) pp. 96–9.
For an account of the graft and waste that went with the building of the transcontinental railroad, see Burton W. Folsom, Jr., The Myth of the Robber Barons (Herndon: Va.: Young America’s Foundation, 1991) pp. 17–39. Folsom also chronicles the building of successful railroads without the use of government funds.
U.S. Const, art. I, § 8, cl. 12. For a discussion of the constitutionality of Lincoln’s summoning of troops, see Webb Garrison, The Lincoln Know One Knows (Nashville, Tenn.: Rutledge Hill Press, 1993) pp. 83–9.
For a discussion on the Merryman affair, see J.G. Randall, Constitutional Problems Under Lincoln (Gloucester, Mass.: Peter Smith, 1963) pp. 161–3.
Robert S. Harper, Lincoln and the Press (New York: McGraw-Hill Book Co., 1951) pp. 257–64 (discussing suppression of newspapers under Lincoln).
Michael Kent Curtis, “Lincoln, Vallandigham, and And-War Speech in the Civil War,” 7 William & Mary Bill of Rights Journal 105, 119–20 (1998).
Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (New Brunswick, N.J.: Transaction Publishers, 2002) p. 223. Lincoln’s reign was indeed a dictatorship. As David Donald has noted: Nobody knows how many Northern civilians were imprisoned without due process of law; estimates range from fifteen thousand to thirty-eight thousand. It required but a line from the President to close down a censorious newspaper, to banish a Democratic politician, or to arrest suspected members of a state legislature.
David Donald, Lincoln Reconsidered (New York: Alfred A. Knopf, 1966) p. 189. The powers which the executive assumed and the prerogatives which he claimed were far reaching. They seemed, if applied to great excess, to offer the opportunity for a dictatorship. All this was out of keeping with the normal tenor of American law. Randall, supra note 35, p. 183.
James Madison, Notes of the Debates in the Federal Convention of 1787 (New York: W.W. Norton & Company, 1987) p. 626; see also William J. Quirk and Robert M. Wilcox, “Judicial Tyranny and Constitutional Change,” Chronicles: A Magazine of American Culture, February 1998, pp. 18–21.
See, e.g., Felix Morely, Freedom and Federalism (Indianapolis, Ind.: Liberty Press, 1981) p. 5 (arguing that federalism “serves admirably to foster freedom without the sacrifice of order”);
Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1993) p. 387 (“The argument which was foremost in the minds of the framers and which still holds greatest promise as a rationale for states is the argument from liberty.”).
Edward S. Corwin, The Passing of Dual Federalism, in Alpheus T. Mason and Gerald Garvey, eds., Essays by Edward S. Corwin (Gloucester, Mass.: Peter Smith, 1970) p. 146.
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Watkins, W.J. (2004). Lessons for Today. In: Reclaiming the American Revolution. Palgrave Macmillan, New York. https://doi.org/10.1007/978-1-137-09794-1_6
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