Well, partly because the U.S. Government, as it now stands, is probably about as far away from being a "federal" government as any government can possibly be. And partly because when we ... spontaneously? ... refer to the central government as THE Federal Government, we simply obfuscate the meaning of the term federal and its derivatives, rendering the term, particularly as it applies to these United States, effectively meaningless (I'll grant that some people understand what the term means, yet still use the descriptive "federal government" in reference to the central authority as a matter of convenience and habit.).
If it is even possible, at this point in the game, to save the country, we must restore the federal principle to its rightful place in our system of government. To do that, we must know first what the term means. But, irregardless of whether we can save the country or not, it will serve us all well to be considerate about the way we use such terms.
I will quote again William James who said:
"There is nothing so absurd than when you repeat something often enough, people begin to believe it." (the statement doesn't originate with James, but he is most often accredited with it, nonetheless.)
Referring to the central government as The Federal Government, as we're so apt to do these days, has (had) this effect I think. Likewise, it has been stated so frequently and so often over the course of decades in this country -- the doctrine of the "separation of church and state" -- that people actually think that the actual words are contained in the U.S. Constitution. And, of course, you all know by now that one of my pet peeves is the common reference to the Constitution as being (in and of itself) the Supreme Law. But the term federal has a specific meaning, particularly as it applies to the United States.
There is an article by Clarence B. Carson newly posted at the Tenth Amendment Center this morning, originally published in 1983 (several years before I became politically aware), entitled The Meaning of Federalism. I posted a short comment to the article this morning in which I invoke Noah Webster and his 1828 American Dictionary of the English Language, as well as his descriptive of the United States as a Federal Representative Republic. Also, the author mentions the original mode of selecting U.S. Senators as an integral part of preserving (or, re-establishing in our current situation) the federal principle in American government. Do read the article. And keep in mind that it was originally published back in 1983. Further erosion of the federal principle has since occured.
Monday, June 1, 2009
Why do I always put the term federal, as generally applied to the central government, in scare quotes?
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I might have more interest in this distinction if I felt that the consolidation of power in what was intended to be a federal government were the cause of the crisis, rather than merely a symptom.
I found the article and the subsequent discussion a bit confusing, in that there doesn't seem to be a clear, significant distinction made between what federalism is and those features of the current system which presumably are not federal.
It is my impression, from what is written in the Constitution, that the design was indeed for the national government to be primarily concerned with governing the states, rather than the people directly. But Carson says this is not so, and much of the discussion revolves around the difficulties of overlapping jurisdictions which are therefore presumed to arise under federal government.
From my point of view, even the much maligned fourteenth amendment clearly confines itself to governing what the states may do and how they are to be represented in the Federal government. But then, I don't really understand what you have against the fourteenth amendment. Yes, it has been egregiously abused by the Courts, but so to has every other article of the Constitution.
And I really like the third clause:
"3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
Yeah, it's kinda wordy. But I like it.
Chiu, yes, that's the only portion of the fourteenth that I like. However, in order to get the baby, it seems, the framers required that we take the bath water too.
When you boil it all down, the reason I don't like the fourteenth amendment is because it created a U.S. "birthright" citizenship, depriving the States of their constitutional prerogative to determine citizenship for their own inhabitants.
Under the original constitution voting priveleges were derived therefrom. Under the original constitution the central government was given power to create "uniform rules of naturalization," not to confer citizenship.
This has caused many evils, as far as I'm concerned, not the least of which is the creation or manufacture (or, importation) of a dependent, slave people.
Now, for the sake of argument I'll go along with the idea that the fourteenth (the creation of a U.S. citizenship/destruction of the federal principle) was necessary and proper at the time it was written and ratified. But that was then and this is now. Furthermore, it would do us all some good, in my humble opinion, to listen to the voices of our founding fathers crying in the wilderness:
"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved''? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights." -Federalist #84 (Hamilton)
Chiu wrote:
"I found the article and the subsequent discussion a bit confusing, in that there doesn't seem to be a clear, significant distinction made between what federalism is and those features of the current system which presumably are not federal."
You make a good a point. And it just occured to me that maybe I ought to write something up about this; something more clear and definite. But that'll have to come later.
I have written before concerning our "National-Federal structure," or, the dual nature of our (original) government as distinctive from our current, post-fourteenth amendment form. Also about the Republican and the democratic elements, and to which spheres of power each properly applies under our original system of government.
But, simply stated and as I understand it, federalism is a type of treaty or agreement between political equals, or, which acknowledges (and implies) political equality among and between the parties to the agreement. It involves the concept of reciprocity.
(The constitution also observes inequality between the states, but that's not federalism.)
In this sense, the U.S. Constitution creates, and lays down the terms and conditions of, a federal union between the states. The central government is not that union, but primarily its international agent tasked with doing its business internationally. Hence my problem with referring to the central authority as THE "federal government."
As Mr. Jefferson explained: The constitution [essentially] makes us several as to ourselves, and one as to all others.
But, again, I'll have to get back to this later. However, surely you can see, Chiu, that whenever the central government invades, or intrudes upon the spheres of government clearly left in the constitution to the states and to the people, then this is, by definition, an undermining of the federal principle, and thus works to its destruction and the establishment of a totalitarian state.
This has been happening in this country for a long long time. It is what we're accustomed to, and that is the reason that, to date, there has been sounded no great alarm over it.
I think that elimination of the welfare state (a positive good in itself) and strict enforcement of our borders (a fundamental necessity, particularly in the modern era) will have better effect than repeal of the birth citizenship clause. And the birth citizenship clause, while subject to particular abuses, does forestall certain systematic abuses which are highly destructive to liberty.
I may be wrong, but the vast majority of illegals are not born in America, and the use of "anchor children", while deplorable, is not something that can't be handled without Constitutional amendment. I would favor simple rule of law. Where custody was determined to lawfully lie with a foreign national, that person would retain custody notwithstanding their circumstances forcing them to take their child with them out of the country. We have no problem with this when legally resident aliens who want to return to their own countries have American born children. Why should illegal aliens be different? If the child eventually takes a foreign citizenship, they automatically lose their U.S. citizenship. If not, then maybe they're not a bad candidate for re-immigration.
In the case that custody was lawfully disputed (for instance, evidence of criminality or abuse), there is no reason not to rejoice at the reduced probability of the child ever seeing the parent again. If we're going to take people's children...let's start with those who have intrinsically abused them by the very act of bearing them.
I really don't see the "anchor children" issue as something that will be dealt with by removing the citizenship of those children. The issue isn't that they are citizens, but that they are children, and thus bleeding hearts don't want to put them through the cruelties of deportation or separation from their parents. But nothing about their being citizens is really pertinent to that argument.
I firmly believe that removing the birth citizenship clause will accomplish nothing, because it isn't even standing in the way of what needs to be done.
As for the issue of federalism, I hold to the notion that it means that the federal government is the government of the federation of states, that it thus has power to regulate the affairs of the states with each other, but has extremely limited powers to control states individually (or internally) and should have no powers at all over private entities.
Hamilton wanted the national government to be extremely powerful, but limited in just this way. It would have total authority over such areas as national commerce, defense, expansion, and international relations. It would have no authority over private entities as such. In dealing with the states, it would primarily establish the rules which by which states would have dealings with each other (such as negotiating water use or reconciling differing legal standards), and act as a referee for disputes. In such actions, the states would be treated impartially despite their material inequities, there would be no permission for favoritism.
That is the sense which arises from my reading of the Constitution, and I favor it strongly. But the general impression that I get from most current federalist theories is that the national government needs to have equal authority with the states over private entities. I don't see how this is even possible, let alone necessary. And are the states to have equal authority with the federal government over national defense and treaties? Equal power to coin money and establish measures?
I'm not good with complicated systems. I like simple, readily applicable principles that are not burdened with a great accretion of qualifiers and exceptions. Consistent application of simple principles is mostly difficult only because we like to make exceptions to the rules. But consistent application of complicated principles is downright impossible.
In that case, one should simply resort to the simple principles of anarchy and force. That's easy to apply and there's no room for exceptions you can't carve out with your own blade.
"But nothing about their being citizens is really pertinent to that argument."
Chiu, how can you say that?
It's pertinent in the sense that it gives the liberal bleeding hearts the ammunition they need to keep whole families of illegals in this country, thus the term "anchor babies." Afterall, no one wants to separate "citizen" children from their alien parents and extended families, and we can't just start deporting legal citizens, right.
They're fortunate it isn't up to me because I would send them all packing, so-called "birthright citizens" and the whole lot of 'em. It sounds pretty harsh, I know, but that is where we're at. We haven't the luxury of taking on every poor down-and-out case from every third-world country under the sun. But that is what the multiculturalists would have us do, and "birthright citizenship" is one of several ways in which they're accomplishing it.
But...
As I've said many many times, I prefer that the individual states enact their own immigration laws putting them on the run and keeping them on the run until finally they decide to go back to where they came from.
...Besides, I've never suggested that we ought to be separating "birthright" children from their families in the first place. I want them to migrate with their families back to where they came from.
You wrote:
"If not, then maybe they're not a bad candidate for re-immigration."
Are you seriously going to argue that someone raised and educated under a completely different form and system of government most likely hostile to the United States; in a culture vastly different from our own, and so forth, can possibly be a good candidate for repatriation with reinstatement of full citizenship priveleges in the U.S.?
But their citizenship isn't at issue, liberals make the exact same arguments for detained terrorists, after all.
In the case of a parent with a minor child, we're not deporting the child, we're allowing the parents to retain custody (wrongly, in many cases, but that's another issue). The reasons a child's parents might be moving out of the country don't affect the custodial issue (though possibly they should).
I think that it should be commonplace for illegal aliens foolish enough to attempt an "anchor child" to lose their child, irrevocably. I'd prefer to have mechanisms in place to insure that these criminals would never have any possibility of ever seeing the child again. But that's just my preference, I don't insist on it.
On the subject of birth citizens raised outside the country who never take a foreign citizenship, I don't have a problem with letting such people return to this nation. If they did something like taking an oath of allegiance to a foreign power or whatever, then they lost their birth citizenship anyway. If they didn't, then why not recognize that?
Of course, our current President, whether or not he was born in America, definitely lost his citizenship somewhere along the way. So consistent enforcement is probably a pipe dream. But that's not because the law is inconsistent, it's because liberals don't want to follow the law. It doesn't matter what the law is if the problem is that people aren't willing to abide by the law.
I always resist changing a law to try and deal with the behavior of people who are already criminals. The only way that can ever work is by decriminalizing behavior which didn't need to be made illegal in the first place. In that case, changing the law is justified because the law is wrong, not because of whether or not people are obeying it.
But making a law harsher on the theory that it will thus be easier to enforce or involve less resistance to the law...it just doesn't make any sense to me. When you are fully enforcing the laws you already have, and it isn't working, then ask for stronger laws.
We have an embarrassing surfeit of laws that could be enforced against illegal aliens. I really wouldn't advocate enforcing them fully, because if you really look at the law we can already legally torture them to death, which seems excessive even to me.
I think that economic disincentives, combined with rapid deportation of those who commit other crimes (and these are the ones that I suggest lose their children permanently, and I don't care if it's just a traffic ticket), would have a salutary effect. It should at least be attempted before tinkering with the Constitution. Which wouldn't change the problem in any significant way in any case.
"I think that economic disincentives, combined with rapid deportation of those who commit other crimes (and these are the ones that I suggest lose their children permanently, and I don't care if it's just a traffic ticket), would have a salutary effect."
Yes, such as Oklahoma's state immigration law, H.B. 1804. And others. All of which, by the way, are consistent with current U.S. law. Hence, all of the talk in Congress of passing 'comprehensive immigration reform', which is just a way of nullifying the work to date at the state level to solve this issue. In point of fact, the real teeth of Oklahoma's law is indefinitely held up in the Tenth Circuit U.S. Court of Appeals because one rogue judge has declared that it probably violates federal law (it doesn't, and he knows it). And the court refuses to hear the case in anticipation that the current leftist Congress will enact federal comprehensive immigration reform.
But don't you see the potential for creating yet another class of abject America-haters contained in your parenthetical remarks, a class of people that would possess full citizenship priveleges t'boot -- don't you think we have enough of those already; groups that hate America without provocation? You cannot simply dissolve their kinship and loyalties by some arbitrary act like that. In fact, the most likely result of what you're suggesting is that once these people became self-aware enough to realize what had been done to them and their kin, they would become even more ethnocentric than they already are by nature. It wouldn't matter to them that their parents were criminals, and they wouldn't look on them as criminals in the first place.
We may simply have to agree to disagree on this. But what I'm suggesting, at bottom, is that the interpretation of the fourteenth that grants citizenship to children born to illegals on American soil is an illegitimate interpretation. Period.
Hmmm...well that it were so. But unfortunately, that clause is very unambiguous for a specific reason. The intention was to make it impossible to deny citizenship to any group living in this country for more than a generation. That such a clause became necessary is a worse evil than anything that has come about because of it, but wherever one finds the misfortune in the 14th amendment, it is an ill-born thing.
Still, I hope that we can agree that stopping further illegal immigration and expediting the re-emigration of the existing illegal population has primacy over questions of how to deal with those born here to criminal parents. Besides, stronger enforcement of existing laws is likely to be an easier sell than changing the Constitution anyway. It isn't like those standing in the way of enforcing current laws will do nothing to oppose such an amendment.
On the subject of adoption, I happen to know a few children who used to be child soldiers in Africa. Nice kids, if a bit shy. It makes me hopeful about what can be accomplished with good socialization.
Then again, maybe I'll bemoan the folly of such adoptions at some future date. Hope has betrayed me before, after all.
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