The OLD Philosopher – John M. Miller
The Elections of 1860, 1960, 2000, 2016; The Electoral College; States’ Rights
IV. States’ Rights
The Constitution of the United States of America was composed at a very tenuous time in the history of our nation. The Articles of Confederation had stitched together the thirteen very disparate states after they had achieved their independence from Great Britain in 1783.Very quickly it became obvious that the new system of government was woefully ineffective. Nevertheless, there was no strong agreement among the delegates to the Constitutional Convention in the summer of 1787 about exactly what kind of new government they should create.
A majority of those in attendance were much more aware of what they did not want than what they did want. Above all else, they did not want a strong central or national government. That was what had prompted the revolution in the first place. The colonists believed that Britain was grossly unfair to them in the years leading up to “the shot heard ‘round the world.” They also did not want most political power to reside with a national executive and legislature. The minority clearly also knew what they strongly wanted. They believed a powerful federal government was the only way to overcome the chaos which had existed for four years under the Articles of Confederation.
Had our nascent nation somehow been able to manage to exist for another twenty or thirty years under the weak Articles, the constitutional framers might have felt far more unanimity in what they did manage to adopt. By then it would have been evident to nearly everyone that a wisely administered but strong national government was infinitely preferable to the patchwork quilt that the Constitution turned out to be, attempting to compromise throughout on states’ rights and responsibilities versus federal rights and responsibilities.
As it was, the thirteen colonies which became the thirteen states had far too little experience is knowing what a republic should be. In 1787, the USA was the only democratic republic in the world operating under truly democratic as compared to autocratic principles.
For most of world history, some form of autocracy has been the type of government in nearly every nation-state everywhere on our planet. It is particularly instructive for Americans to realize that it is only since the American Revolution that democracy rather than autocracy has become the trend in most advanced countries. Because we have been a democracy longer than any other country in existence, we tend to take democracy for granted. From the end of World War I forward, scores of nations which previously had been autocracies of some variety have become democracies of some variety. Furthermore, many of those nations utilized many features of the United States Constitution in formulating their own constitutions. We should be proud of the enormous influence the United States Constitution has had in helping to shape the modern world.
Nevertheless, in 1787, some of the delegates in Philadelphia wanted to re-establish a monarchy on these shores. They reasoned that since monarchy has always prevailed almost everywhere, it should therefore continue to govern their new country. This small group of delegates also wanted the person who was the presiding officer of the Constitutional Convention to be their king. He was a chap by the name of George Washington. However, early on General Washington and wiser heads prevailed to put the kibosh on that cockamamie concept. They did not want to rid themselves of one monarchy by replacing it with another home-grown variety.
Here was the fundamental question with which they were forced to wrestle: Politically, where would the primary power in the new government be located, in the United States of America, or in the United States of America? Because they had so long felt so much repression from an over-powerful British government, the majority resisted the formation of a powerful American government. Instead, their caution led them to vest more power in the several states than in the United States.
That tendency may first be observed in the way they chose to elect the President. Instead of choosing a national chief executive by popular vote, they devised a system whereby it was the states, not the people, that elected the President. Each state was to have two Senators. (That in itself was a concession to states’ rights, so that in the Senate no state could dominate on the basis of population.) However, they agreed that the membership in the House of Representatives would be decided by population.
Article 2, Section 1 of the Constitution stipulated how Presidents are to be elected. It never uses the term “Electoral College,” but in effect it establishes that peculiarly undemocratic American electoral entity. The founders wanted to avoid a popular election of the nation’s chief executive. They had an aristocratic innate aversion to “the people.” Therefore they created a system in which each state legislature would select electors who would represent that state’s presidential vote totals. Initially these electors were all men, and not only males, but aristocratic males. The founders made certain that not just anybody, but proper, trusted “somebodies” would cast the final ballots which determined who would be the President. The Electoral College, in other words, was an exercise in oligarchy, not democracy. It also epitomized states’ rights at the expense of federal rights. The fact of the matter is this: It still is not the people who elect the President; it is the states which decide who shall win. When we cast our ballots every four years we never perceive it that way, but that is the way it is.
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Let us now examine some of the other instances in the Constitution that intentionally authorize certain powers to the states rather than to the federal government.
Article I, Section 8 says, among many other things, that Congress shall “provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress” (my emphasis).
The word “militia” is not clarified by the Constitution. Did they mean the national “militia,” i.e., the army, or did they mean the state militias, i.e., something like what we now call “the National Guard”? Either way, the states were to appoint all officers in all the militias, including the national militia (army), and the states also were to oversee the training and discipline of the state militias. They feared a powerful national army, because they thought it might initiate military coups.
Article I, Section 9, like Section 8, has many sub-sections, but it begins with this fascinating statement: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year (1808), but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person” (my emphasis).
The paragraph deliberately refuses to say clearly what it means, and that tells us how much the delegates were walking on eggshells the whole time the Constitution was being drafted. What it almost certainly means is this: Congress could not prohibit slaves from being brought into any new states until after 1808, if even then. However, if slaves were brought into any state, the federal government might levy an import tax of up to ten dollars per slave.
From the inception of this process, the southern states were insistent that the primary factor in their economy, slaves, could not be altered by any actions of the central government. They demanded that slavery was always to be perceived as a state issue, not a federal issue. Ever since, “states’ rights” has been supported mainly in the South and in the West, where various territories were eventually divided up into states. “States’ rights states” strongly resist the federal government telling them anything that they must or must not do.
Article I, Section 10. Without quoting any part of this section, let us note that it does put serious limitations on the states in certain issues. States cannot make treaties, print their own money, charge duties on imports or exports unless Congress approves, or declare war on any foreign nation. To us these restrictions are so self-evident that they need not be stated. Nevertheless, in 1787 they were not self-evident, and thus they were stated. The framers did not want the states to act like sovereign nations in foreign or international relations. Nonetheless, many of the stipulations of the Constitution did grant unhealthy levels of sovereignty to the states.
Article IV of the Constitution says, in essence, that the states must recognize the validity of all the other states. For example, anyone accused of a crime in one state who flees to another state must be extradited back to the state in which he is charged with the crime. Further it declares that only the federal government can determine how new states would be carved out of the western territories. Other states could not be involved in that process; only the federal government could take charge. It was clearly anticipated that the establishment of new states would be solely under federal, not state, control. This was a victory for the federalist minority in the Constitutional Convention.
Article V set up the structure for amending the Constitution. Listen carefully to the language in the first part of the Article. “The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, in the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress” (my emphasis).
That is one very long, convoluted, eighteenth-century statement. What does it really mean? First, it decrees that the United States Congress itself can propose amendments to the Constitution, provided that two thirds of the members of both houses approve the proposed amendments. However, the process does not end there. In addition, the legislatures of two-thirds of the states can also propose amendments in a national constitutional convention which they, the states, call. OR the states themselves can hold their own constitutional amendment conventions, and if two-thirds of the states agree on exactly the same amendments, then those proposed amendments go back to the state legislatures, and three-quarters of the state legislatures must approve the amendments in order for them to become part of the Constitution.
The middle clause of Article V of the Constitution thus subverts the federal government instituting constitutional amendments by theoretically if not actually giving that power to the states. In other words, the federal government (Congress) cannot amend the federal Constitution by itself. Two-thirds of the legislatures of the states must also approve any proposed amendments. It is yet another important illustration of states’ rights.
But there are still more rights granted (obcurely) to the states by this Article. The states themselves can initiate the process whereby constitutional amendments can be instituted. Each state can call its own constitutional convention, or, presumably, all them together can call conventions in the individual states. And if three-fourths of those state conventions approve the constitutional changes, the Constitution shall be changed, even without the approval of Congress. Theoretically, and perhaps in actuality, the states can alter the Constitution of the United States without the Congress of the United States being involved at all, either to approve or disapprove.
In the opinion of this observer, Article V is extremely hard to interpret. Did the framers mean for it to be obscure? I suspect they did. Some might conclude, to use contemporary terminology, my observations on these matters “are above my pay grade.” I am not an attorney. I have not studied constitutional law in any law school.
But, fellow citizens, you need to aware that voices are being raised by states’ rights advocates throughout our nation-state (or our nation of states). Many citizens of “states’ rights states” (especially southern or western states) are beginning to make noises about initiating either a new national constitutional convention or starting the amendment process in their state legislatures. As a matter of fact, twenty-seven state legislatures have already taken that step. If seven more states approve the idea, it can and perhaps will happen. These states believe the federal government has far too much power, and it needs to be transferred back to the states.
In utter candor, a new national constitutional convention would be a splendid idea, provided that it succeeded in granting the proper amount of political authority to the federal government which the federal government needs in order to lead a smoothly-operating modern democracy. We do not have that situation now. However, holding such a convention would represent an enormous risk, because the states’ rights advocates might win out. They might turn the United States of America into the constitutionally-mandated bastion of rightist government they have been quietly and not-so-quietly seeking since 1787. Once the Constitution was first adopted, and since 1865, when the Civil War ended, and since 1964 and 1965, when the Civil Rights Act and Voting Rights Acts were passed, the politics of states’ rights has become very restive and even angry.
Historically, states’-rights-type Americans have been far more determined to triumph in their ideas than strong-central-government Americans. That is a political polarity virtually guaranteed by the passage of the Constitution in the first place. We instituted a form of government unlike that of any other modern democracy, because we were the first nation-state to choose democracy rather than monarchy or autocracy as its fundamental method of operating its government. Our basic mistake is that we did not establish the only type of successful democracy which can thrive in the late twentieth and early twenty-first centuries. That is the sad but true fact. Regional governments (the states) were given too much authority, because politically the framers could not go far enough to lay the foundation for a strong central government. The thirteen colonies, which became the first thirteen states, would not permit the sufficiently courageous leap of faith to create a vigorous national government. That timidity undermines genuine democracy, but that, alas, is the way American government operates, with relative weakness.
The Bill of Rights
The thirteen states realized they had not finished their task when they finally approved the Constitution in 1787. Four years later they adopted what came to be called the Bill of Rights, although it was not given that official title at the time. The preamble to the Bill of Rights says this: “The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent the misconstruction or abuse of its [the Constitution’s --- my emphasis] powers, that further declaratory and restrictive clauses [my emphasis] should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution; Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution.” Then they listed the first ten amendments, all of which were officially adopted by the various state legislatures.
Implicit (though not EXplicit) in all ten of these amendments was the concern that a too-powerful federal government might overstep its bounds and restrict or impinge on the liberty and freedom of the states and its own citizens. Therefore every single right highlighted in the Bill of Rights was apparently intended to receive constitutional protection from a too-zealous national government. In 1791 it was not even imagined that the state governments themselves might restrict or impinge the rights of their own citizens.
It is very understandable why the Constitution was written and adopted in its final form. As has been noted, the newly liberated Americans wanted at all costs to avoid the tyranny they felt they had experienced under a heavy-handed British government. To most Americans in 1787 and 1791, a strong federal government was by far the greater danger, not strong state governments.
In the eighteenth century, as in all previous centuries, England (or Britain) had been a monarchy. For most of that time, the kings and princes and dukes and earls had run the British governmental show. The people had little or no participation in whatever transpired. Only over the centuries did Parliament slowly gain power. However, even by 1787, Parliament was a pale copy of what it is today, just as the British crown today is a pale copy of what it was up until the nineteenth century.
Little wonder, then, that the late-eighteenth-century American constitutional framers were far more worried about a federal government that had too much power than they were worried that the individual states, or the collective of the states, might assume too much power.
In point of historical fact, however, it has been the states far more than the federal government that have thwarted the freedoms of their own citizens. Indians, blacks, females, Latinos, immigrants, poor people, urban people, rural people, Democrats, Republicans, Independents, majority parties, minority parties, socialists, communists, anarchists, common ordinary ornery individuals, and many others have had the rights granted to all of them in the Bill of Rights snatched away from them by state or local governments which conspired to diminish or emasculate or undermine those freedoms.
Certainly the federal government has been excessive in the use of its power on its own citizens or those of other nations on many occasions. The Indian Wars. Wounded Knee. The Tuskegee medical experiments. The Japanese internment camps, Dresden, Hiroshima, Nagasaki. Viet Nam, Grenada, Afghanistan, Iraq.
Still, we must ask ourselves this question: Over the past two hundred and thirty years of American history, which type of government has engaged in a greater misuse of if their power, the federal or the state governments? To whom did the Constitution grant the greater authority, to the national or the state governments? The states have been far more egregious than the federal government in violating the rights of American citizens. That is because the states were given the explicit and the implicit power to do so by the federal Constitution which the states very reluctantly adopted when it was first proposed in 1787.
Let us take a look at the Tenth Amendment, the last of the items in the Bill of Rights. Amendment X makes this small but huge statement: “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.”
Entomology is the study of insects. Etymology is the study of the origin and meaning of words. The two words sound very similar, but they are quite different. What the etymology in the Tenth Amendment seem to suggest is that the only powers the federal government has are those specifically granted to it by the Constitution, and all other powers, political or otherwise, belong to the states, or even to the people. Thus if “the people” don’t like what the national or state governments are doing, they can take matters into their own hands, provided that local, state, or national laws or courts do not lawfully stop them. Was this last phrase a veiled plug for mobocracy? Were they being influenced by Thomas Paine? Perish the thought! About such notions we shall give no attention either now or, it is devoutly to be wished, ever.
The founding patriarchs (they were all, alas, males) made a brilliant choice by establishing three distinct branches of government: legislative, executive, and judicial. Each of these three branches, historians and political scientists tell us, provides checks and balances to our system of government. (This term is not written into the Constitution, but it is implicit in it.) By these ingenious stratagems, no single part of the federal government can take total control. Each must work in tandem and cooperation with the other two. It was surely a bolt of brilliance to create that “trichotomy.” It has served us well for nearly two and a half centuries. And the issue of states’ rights, which is the essential concern of these four presentations, has been batted back and forth among all three branches of our governmental tree since the nation’s founding.
Nonetheless, “a more perfect union” has not emerged from the batting thereof. Besides, “a more perfect union” is an oxymoron. If anything is perfect, it cannot be further perfected; it is already perfect. And anyway, the preamble to the Constitution implies that everything was perfect under the Articles of Confederation (which most certainly it was not), but it would become even more perfect under the Constitution. Things definitely improved enormously once the Constitution was adopted, but perfection is not possible this side of the Pearly Gates, and it may not be possible on the other side either.
At the end of the eighteenth century, it would have been impossible for the men at the Constitutional Convention to envision how urbanized America was to become. The form of government they created politically favored rural life. Jefferson and Madison both idealized “the yeoman farmer,” even though neither of them realistically fit into that category at all. They were more like lords or lairds or earls or squires.
In 1787 95% of the American population was rural. By the mid-twentieth century, half the American populace lived in cities. By the start of the twenty-first century, a heavy majority of us are urbanites.
States’ rights are generally favored by people in rural areas and rural states. Blue states tend to be where the larger cities are; red states are where there are wide expanses of clearly visible horizons. State legislatures are organized in such a way that they intentionally give added political clout to the demographic minorities who live in their rural areas. The nation’s founders were leery of the possible tyranny of the majority, and they impeded it as best they could by constitutional restrictions on the way the nation evolved. However, they could not have imagined the number of large cities which were to spring up throughout the American landscape.
Wyoming has the lowest population of all the fifty states. The composition of the Electoral College gives Wyoming three votes in its election of the President. California has the largest population. It has fifty-five votes in the Electoral College. On an equitable ratio based on population, Wyoming should have its three votes, while California should have one-hundred-fifty-nine votes.
The eleven states which formed the Confederacy in 1861 believed it was within the rights of their states to secede from the Union if they believed the federal government had gone too far in violating the rights of their states. President Lincoln and the federal government believed it had become necessary to maintain the Union by force of arms, since their military installation at Fort Sumter had been attacked. The War of Southern Aggression began in Charleston Harbor. The Civil War can never honestly be called “The War of Northern Aggression,” because for most of the war, the Union troops were anything but aggressive. If anything, it was the War of Northern Regression.
The Whiskey Rebellion was states’ rights. In the 1830s and 40s, John C. Calhoun was states’ rights. Nullification was states’ rights. In 1861, Jefferson Davis, Robert E. Lee and Stonewall Jackson were states’ rights. The good intentions of Reconstruction were subverted because of states imposing what they insisted were their constitutional rights. The Ku Klux Klan was states’ rights. Huey Long was states’ rights. Orville Faubus, Lester Maddox, George Wallace were states’ rights. Roy Moore is states’ rights.
Central High School, Little Rock happened because of states,’ not federal, rights. The Sixteenth Street Baptist Church, Birmingham was states’ rights. The Montgomery bus boycott was states’ rights. Philadelphia, Mississippi and Selma, Alabama were the result of states’ rights. Bull Connor and James Earl Ray were states’ rights. Ferguson, Missouri, Baltimore, Maryland, North Charleston, South Carolina are all the indirect result of states’ rights.
States’ rights do not have to be perceived in such incendiary events or men, which evoke painful memories and rancorous feelings. They were exhibited in generations of “Whites Only” signs, black people consigned solely to movie theater balconies, the legality of fourteen-year-old girls being married, often against their will, lynchings, genocide, institutional racism, sexism, and classism: all of these are enhanced and exacerbated by states’ rights.
It is obvious why the states that support the concept of states’ rights take that position. They believe it is to their benefit to do so, even if they cynically know it does not benefit all the citizens of their states. Politically, in terms of inequitable over-representation, there frequently is benefit when less populated states exercise the rights granted to them by the Constitution. Not to do so is to be foolish, they conclude, and it seems perfectly rational.
But are states’ rights good for the United States? Does an emphasis on states’ rights at the expense of the federal government support the nation?
Our country has a Latin motto: E Pluribus Unum. It is inscribed on our coins, but, curiously, not on our currency. Go figure. As we all remember from our civics class in high school (if we took civics in high school), E Pluribus Unum means, “From the Many (or Out of the Many), One.”
It is a great challenge to keep any nation with any form of government united. Fundamentally human beings are so tribally or individually focused that we find it hard or nebulous or even antithetical to become voluntary adherents of a larger and, we may assume, uncontrolled or uncontrollable, entity. Therefore we often resist any sort of authority larger than ourselves or, possibly, our own particular tribe.
Thus in 1787 states’ rights were woven into the intentionally hard-to-alter Constitution of the United States of America. And thus, for many of the states, it was not E Pluribus Unum; it was Caveat Unum: Beware Oneness. On the other side of the equation, from the viewpoint of the federal government, it was Caveat Pluribus: Beware the Many.
And so, inevitably, from time to time the American people become politically polarized, such as in the present time. Each side knows why it favors the factors in its own agenda, but what represents the greatest good for the greatest number of the people, especially for the politically powerless and the economically disadvantaged and the socially sidelined? Who is more likely to make those matters a priority --- the states or the federal government?
If tyranny exists, and it is perceived to emanate from the federal government, then the states shall rise up in wrath. But if the tyranny emanates primarily from the states, how shall the matter be peacefully and successfully resolved? Politically? What if the system is deliberately imbalanced in favor of the states? What if, in presidential elections, for example, the Electoral College awards the presidency to candidates who did not receive the largest number of votes? What if, in theory, states representing only seventeen per cent of the population could take control of the United States Senate? Would that be acceptable? What if rural districts in the US House of Representatives, with less than a third of the total population, determined the outcome of votes taken by the entire House? Would that be just?
They meant well, those mainly aristocratic men gathered in Independence Hall in the steamy summer of 1787. But they made the Constitution they fashioned extremely difficult to amend, and so we continue with a form of government basically suited to the late eighteenth century in the early twenty-first century. And thus, unless something is done, in the future we shall have future elections such as we had in the past, in 1860 and 1960 and 2000 and 2016.
We muddled through before, and we can muddle through again. But is it wise to keep muddling? Is it just? Is it fair?
John Miller is a writer, author, lecturer, and preacher-for-over-fifty-years who is pastor of The Chapel Without Walls on Hilton Head Island, SC.