The powers of the federal executive have been growing steadily in the United States since Lincoln’s War, which destroyed the limited, coordinating government that had existed in DC up to his time in office and replaced it with a powerful, centralized entity that could stomp upon the States with impunity. Proof of this may be seen in the numbers of executive orders issued by the presidents. Prior to Lincoln’s War they were quite rare, not even totaling 20 in most cases. After that turning point, they have ranged from near 100 to over 1,000.
This increase in presidential power corresponds to a diminution of the power of the federal legislature. Government power is a zero-sum game: Particular functions cannot be exercised by more than one person or department without creating chaos. Thus, we have seen the federal Congress grow weaker as the president and the executive bureaucracy grow stronger.
President Trump exemplifies this trend. Many of his headline-making policies are a usurpation of congressional powers as laid out in the federal constitution.
Tariffs: Article I, Section 8, clauses 1 and 3 clearly give the power of deciding on tariffs to Congress. Yet Trump has been busily revising tariff rates from week to week while Congress stands idly by.
Declaring wars: Art. I, Sec. 8, cl. 11 grants this power to Congress alone. But again President Trump has launched attacks against quite a few actors, whether countries or non-state actors – Iran, Somali terrorists, the Houthis in Yemen, Venezuelan drug cartels – none of which attacks have been debated or approved by Congress.
Calling up the States’ militias/National Guards: Art. I, Sec. 8, cl. 15 authorizes the Congress to call out the militia to execute the laws, etc. The president may not call them up himself; however, once the Congress does call up the Guard, the president then becomes their commander (Art. II, Sec. 2, cl. 1). Once again, what we have seen with the Trump administrations is the reversal of the constitutional order, with the president sending the National Guard to conduct various law enforcement tasks without a specific act of Congress authorizing those tasks.
Delegation of powers from Congress to the president is an unlawful revision of the federal charter. Only the States, either in their legislatures or in conventions, have the authority to approve revisions to the charter (Art. V), for they are the ones who originally wrote and ratified it.
But this transition from a powerful legislature and a weak executive to a weak legislature and powerful executive was foreseeable. A federation as extensive as the United States cannot be governed well by a strong Congress/weak president. The size of the federation to be governed was a concern from the earliest days of the newly independent States. One of the best of the Anti-Federalist writers (those who opposed the ratification of the current federal constitution), Brutus, had this to say in Essay 1:
‘Let us now proceed to inquire, as I at first proposed, whether it be best the thirteen United States should be reduced to one great republic, or not? It is here taken for granted, that all agree in this, that whatever government we adopt, it ought to be a free one; that it should be so framed as to secure the liberty of the citizens of America, and such an one as to admit of a full, fair, and equal representation of the people. The question then will be, whether a government thus constituted, and founded on such principles, is practicable, and can be exercised over the whole United States, reduced into one state?
‘If respect is to be paid to the opinion of the greatest and wisest men who have ever thought or wrote on the science of government, we shall be constrained to conclude, that a free republic cannot succeed over a country of such immense extent, containing such a number of inhabitants, and these increasing in such rapid progression as that of the whole United States. Among the many illustrious authorities which might be produced to this point, I shall content myself with quoting only two.
‘The one is the Baron de Montesquieu, Spirit of the Laws,[1] Chap. xvi. Vol. I [Book VIII]. “It is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country. In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen; abuses are of less extent, and of course are less protected.” Of the same opinion is the Marquis Beccarari.[2]
‘History furnishes no example of a free republic, anything like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world’ (teachingamericanhistory.org).
Keep in mind that the size of the union at the time Brutus was writing was a fraction of what it is today, consisting mainly of the States along the Atlantic coast. Yet even a union of that size aroused his skepticism of the formation and long duration of a limited, representative federal government. How much more would he have balked at the idea of such a government existing in a union that stretches over several time zones, such as ours does today.
Brutus adds the following:
‘The territory of the United States is of vast extent; it now contains near three millions of souls, and is capable of containing much more than ten times that number. Is it practicable for a country, so large and so numerous as they will soon become, to elect a representation, that will speak their sentiments, without their becoming so numerous as to be incapable of transacting public business? It certainly is not.
‘In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other. This will retard the operations of government, and prevent such conclusions as will promote the public good. If we apply this remark to the condition of the United States, we shall be convinced that it forbids that we should be one government. The United States includes a variety of climates. The productions of the different parts of the union are very variant, and their interests, of consequence, diverse. Their manners and habits differ as much as their climates and productions; and their sentiments are by no means coincident. The laws and customs of the several states are, in many respects, very diverse, and in some opposite; each would be in favor of its own interests and customs, and, of consequence, a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be composed of such heterogeneous and discordant principles, as would constantly be contending with each other’ (Ibid.).
Once again, we recognize our own situation in his words. Our manners and habits, our laws and customs, from State to State and from one cultural region to another, remain very diverse, and in some opposite (just a few of the more glaring examples: transgenderism, abortion, immigration, gun control, and public expressions of Christian belief). One may also reasonably say that the cultural divisions amongst the peoples of the States have widened significantly since Brutus’s time.
Such a situation makes a federal republic governed largely by a strong legislature an impossibility, as the heterogeneous and clashing worldviews of the representatives will prevent an agreement on what the common good of the union is, let alone how to achieve it. The US Congress for all practical purposes has become paralyzed because of this precise situation.
But the legislature’s loss is the executive’s gain. The unitary executive in the person of the president is able to move much more nimbly and effectively than a Congress made up of hundreds of people. The more Congress deadlocks, the more its responsibilities will find themselves in the hands of the president and the officers under him, whether by congressional act or merely by the exigencies of the moment.
The union has grown too large for representative institutions to function properly. Even at the State level, there are problems:
‘The population drift and overall increase make managing these states as blocs of like-minded people impossible. Texas has a population of over 31 million people. The entire population of the states when they ratified the Constitution was less than 3 million. It did not reach Texas’ current population of 31 million until the Civil War! If we had told the people at the time of the ratification of the Constitution, or the Civil War, that 31 million people would be forced to live under the same state government, they would lock us up in an insane asylum. You cannot manage that many people under one state government.
‘The Abbeville Institute has a great short video asking the question, “Is America too big?” Demonstrating the loss of local control and self-governance simply due to the population size, we have one representative for every 750,000 citizens. The scale and population are just too large to achieve any self-governance.
‘I recently met with conservative and libertarian members of the Sons of Confederate Veterans in Texas, yet the county they were in, and many near them in Houston, were very radically progressive. States that we label “conservative” have, in fact, very liberal counties within them. Why force these separate counties to be at war within the state to decide policy? Is that not the same as what Lincoln forced on the states by having the federal government decide? We now do the same at the state level by pitting counties against each other.
‘Thus, if we can hand back to the states much of what the federal government does, it is an improvement, but in today’s society, it will just cause mini-fights at the state rather than the federal level’ (Jeb Smith, ‘Would States’ Rights Solve our Issues?’, abbevilleinstitute.org).
Options to resolve this issue are a radical devolution of power from the federal and State governments to counties and parishes (per Mr Smith), or a division of the current union into smaller, more culturally cohesive federations, an idea that is nearly as old as the United States themselves.
Separation/Secession is not the invention of dastardly Southerners in 1860-1. It actually has quite a strong Yankee/New England pedigree. One could site a whole handful of attempts of theirs at secession, but we will limit ourselves to only one, for the sake of brevity. It is related to the topic above, of expanding the union over-much:
‘Given these strong feelings about the primacy and importance of ethnic purity, the Jeffersonian policy of expansionism — especially the Louisiana Purchase which incorporated “hordes of foreigners” into the U.S. — was an abomination to the Federalists. Josiah Quincy was one of the most respected and influential of the Federalists. He warned that the Louisiana Purchase obligated the nation to assimilate “a number of French and Spanish subjects, whose habits, manners, and ideas of civil government are wholly foreign to republican institutions.” Quincy felt so strongly about this that he clearly stated that if the purchase were consummated the only recourse for New England would be secession. For the purchase meant that
‘ “the bonds of this Union are virtually dissolved; that the States which compose it are free from their moral obligation; and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation, amicably if they can, violently if they must” ’ (Thomas DiLorenzo, ‘Yankee Confederates: New England Secession Movements Prior to the War Between the States,’ ditext.com).
Well, if righteous Yankees approve of secession, who am I – unclean, scumbag Southerner that I am – to say a word against the idea?
Joking aside, unless some unconventional ideas like separate confederations or radical devolution of governmental powers are tried, we are going to see the changes at work now accelerate, as pro-trans/anti-trans, pro-facemasking and -jabbing/anti-facemasking and -jabbing, etc., factions in Congress bring that institution to a standstill, while a Caesar-type imperial presidency rises to keep the government operating with at least a smidgeon of competence. And the experiences of the States under such a ruler, as checks on his power become fewer and fewer, and as the occupants vary from Republican to Democrat, from conservative to progressive, each with an axe to grind against his political opponents, will not be very pleasant to endure.
Great article, but many of the mainstream critics of Trump and tarrifs are deranged, stupid and evil and are consolidationist themselves who don’t give a damn about the people or the constitution . The are all about subsidized dysfunction and irresponsibility.
It is clear that liberty is impossible when all power and authority is centralized and exercised from above. Decentralization of political administration is thus clearly a step in the right direction but as long as some people still have the hubris to believe that they have the right and ability to direct and control the actions and even the beliefs of others then this dissemination of authority will only diffuse the conflicts to broader and lower levels of society. Isn’t it time to acknowledge that no person has the right to control anyone else but only themselves? That this is not only their personal right but their individual responsibility for which they personally enjoy the freedom but also bear the consequences resulting from their choices.
“Liberty, then, is the sovereignty of the individual, and never shall man know liberty until each and every individual is acknowledged to be the only legitimate sovereign of his or her person, time, and property, each living and acting at his own cost.”
— Josiah Warren
No Rulers !
my sad, visually blind dad…i asked him if he hadn’t got a job with the state, what would you do….he replied, “scotty, i guess i would have been bagging groceries.”
make a proper Federalist plan or stfu
Federalism; the system of disseminating power in a variety of entities with the limits to each defined by a constitution, has been clearly demonstrated by US history as a failure, not a ‘solution’ to the problem of restricting the inherent nature of power to expand and centralize. I prefer to ‘strike to the root’ of the problem by forbidding or eliminating the authorization or institutionalization of any government or formal social control entity in the first place, as the evidence of the past has shown this is just planting the seed for a subsequent tyranny to grow from.