I ended yesterday by noting that the effective “usurpation” by the federal government of the states’ power to tax, which was at least a pretended concern of some eighteenth-century constitutionalists, turned out to be unfounded. Reader Neil wrote in again to comment,

Unfunded federal mandates which eat up state budgets, to the detriment of local concerns?  States forced by “tax revolts” to lower the property or income taxes which ThePartyOfLimitedGovernmentpay for local infrastructure, at least in part because of the ever-growing federal share of tax revenue?  The incipient federal bail-out of the coastal blue states?

You are simply averting your eyes from the States’ loss of power.  It is legitimate to argue that State power should be minimized, in favor of a uniform Federal law for the entire country–but how can you ignore this dynamic?

I am not averting my eyes. None of it, simply, is relevant – or not in the way Neil thinks. Unfunded mandates, which I oppose, are not taxation. Potential federal bail-outs of states are a whole other economic ball of wax, and tax revolts or revulsion goes back to the arguments in which Alexander Hamilton, my sage of the week, was involved. None of it changes the reality that even with a federal authority to tax, 222 years after the Constitution’s adoption, many states and even cities are able, even substantially, to tax their residents. The number of years counts when predicting national descent into the abyss. We know that on Wall Street the bears always consider themselves confirmed; they’re just sometimes a little off on the specific date of the downturn – by years. I haven’t had a chance yet this week to release my pronouncement on the time parameters that will be required for an outcome to be designated official confirmation of predictions of national collapse, but it is definitely going to be less than two centuries.

What is relevant, however, is precisely the failure of the dire predictions against which Hamilton argued to be confirmed. Ascent to evolutions in the development of the national character and federal law, or still assert that enforcement of child labor law provisions places undue economic hardship on businesses, it is undeniable that the nation did not go to hell in a hand basket consequent to the federal power to tax, but instead climbed to greater heights.

Now tea-partiers, conservatives, and libertarians are once again bewailing the runaway locomotive to BIG GOVERNMENT totalitarianism, socialism (at 3 o’clock), fascism (at 4), or obama hitlerboth (What hour is Beck on?) and the general loss of our liberty. I recall that brilliant analyst of the bygone summer entreating, at one town hall – was it of Arlen Specter? – “I want my country back, according to the Constitution.” Which country (according to the Constitution) was it, do you think, she wanted back? Certainly not the post-Great-Society U.S., which began our decline into moral turpitude, probably not even post FDR, from whom Social Security, and the FDIC, and the National Labor Relations Board and the whole proto-socialist farrago originated. Was it perhaps the America of separate but equal, in which Jim Crow reigned? The America before women and Native Americans could vote or the latter were even considered citizens? The America without those child labor laws, or even basic employee protections like a regulated work week, or without the EPA or OSHA? Maybe the America when slavery was still legal? When exactly was this golden age, and when and how did we stop abiding by the Constitution? Was it when the Supreme Court handed down landmark decisions that changed the face of country – perhaps literally – of which conservatives did not approve, that they thought terribly, terribly wrong? That wouldn’t, then, be Bush v. Gore in 2000.

However, now a Democrat serves in the White House, after a very convincing vote of approval by the American electorate, and the Democrats hold the House and Senate, after persuasive levels of electoral victory – according, as far as I know, to constitutional processes – and these Democrats are pursuing policies that Democrats are well known to support, and have supported for decades, and which, in fact, Obama, for instance ran on. And conservatives are very unhappy, which I perfectly understand. I feel them, if you know I mean. Been there.

But that’s that country, according to the Constitution. And it’s one thing to argue that these are policies – nationally regulated healthcare legislation, for instance – that one does not like, but it is an entirely different argument to make that these policies are unconstitutional, or un-American, or socialist, or fascist, or that they portend, quoting Neil, in his worry yesterday, a “degree of governmental power beyond which freedom is irretrievable.”

What, I wonder, would it even mean to retrieve power from the government of a twenty-first century Western industrial nation, the most powerful, in fact, of them all? Those Second-Amendment militias I mentioned yesterday wouldn’t do it, not with handguns and hunting rifles and some assault weapons, and, no doubt, some RPGs and shoulder-fired missiles, too, hidden away somewhere. Not against the U.S. military. So we would have to presume that the nation would fracture in some unfathomable way – far beyond anything that occurred in the 1960s, the most fractured period since the Civil War – and the military become divided in its loyalties: a disintegration or cataclysm beyond realistic imagination.

What this means is that to the extent that one might consider the U.S. government already, now, or threateningly soon, unresponsive to our constitutional freedoms, that freedom would already, truth be told and realistically speaking, be irretrievable.

However, even the most disgruntled tea-partiers do not believe this. They were out at town halls, they attended parties and demonstrations, and they have organized all because they know that their liberties have not been taken from them, and their freedom is not in danger, even from a revised healthcare system or huge loans to multi-national banks. The tea-partiers have the same opportunity to contend in the political process as everyone else – which is no guarantee, of course, as it never is, of prevailing. The loss of an election and an alienation from the political spirit of the time, even a bigger government than you want, are unhappy experiences, but they are not a tumble under the boot of incipient totalitarianism, or even a stumble in that direction from which a country may right itself. The wrong policies and the size of government affect our lives to be sure, but they are not what might rob us of our freedom. What might rob us of our liberty is the government’s clear contravention of the Constitution, its willful, however rationalized, violation of the laws that enunciate and protect our freedoms. Our failure to hold the government and its members accountable when they might do so.

Hamilton argued in Federalist 31 against those who entertain all manner of fears about the loss of freedom on the basis of hypothetically bad outcomes:

Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution.


The protection against tyranny is not, ultimately, in any specific power of government or limitation on it. Other democracies depart from our practices in all sorts of ways. However fear mongers may try to make it seem as if democracy resides in this practice or that, but not its variant, democracy and freedom are established at a higher level. It is, for Americans, as we always say, in our Constitution and its processes themselves.

I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. … If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent… security, all apprehensions on the score of usurpation ought to be discarded.


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