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Single federal code redux

By Bruce Walker
web posted January 20, 2003

My December 23rd article "The Conservative Case for a Single Federal Code" has generated two thoughtful rebuttal articles from my fellow conservatives (here and here). The purpose for writing "The Conservative Case for a Single Federal Code" was not so much to say that a single federal code was the best way for conservatives to approach the problems of absurd legal complexity, judicial usurpation and unaccountable government as it was to show that conservatives, who care about reason and experience, can debate among ourselves how best to approach policy issues.

As one example, in the halcyon days of early 1995 (when many of us thought that the political battle with the left was over) conservatives presented several different cogent arguments about how to reform the ghastly federal tax system. Some conservatives favored a flat income tax; some favored a proportional consumption tax.

This is precisely how a civil, decent republican government should address and resolve issues and - in that spirit of friendship and with the common interest of unraveling the awful mess that liberals have left us - I will engage in this article some of the objections raised to my article last December.

This article will expand the potential benefits of a single federal code, and two subsequent articles will describe: (1) how conservatives could insure, at the time this reform was enacted, that liberals could not create mischief later, and (2) the alternative approach, which I would also endorse, of truly returning sovereign power, rather than just rights, to state governments.

No one believes that strong and sovereign states within a federal republic have a more beneficial effect upon government than me. The argument that state governments are much better suited to solving many problems than the federal government is an argument I also made in my October 23, 2000 article "Letting States Resolve Thorny Moral Issues."

Indeed, history shows the Anti-Federalists were more astute about the importance of sovereign political states than were the Federalists. If we could turn back the clock, I would not stop at 1789, but 1781: modest changes in the original Articles of Confederation would have made it workable, and the caveat in the Declaration of Independence against changing forms of government lightly would have restrained many of the Federalists from proposing a new Constitution.

Today, however, the practical political power of states has been reduced so much that these facades for federal power can probably not regain the authority which they still have nominally under the Constitution. When the framers created tools to keep the states genuinely, not just putatively, sovereign, they placed several key powers in the hands of state governments.

Pointedly, the framers placed these powers not just in the hands of state government, but in the hands of state legislatures. Read the Constitution from beginning to end and you will not find the word "governor" or "state court" mentioned (although executive power to extradite is expressed). State legislatures, on the other hand, are specifically given three big hammers.
State legislatures prescribe how presidential electors are chosen. In the early decades of the Republic, state legislatures did just that. There was no "popular vote" in the first nine presidential elections; state legislatures chose electors, and those electors chose the president. Since 1824, however, the voters of states have chosen electors and the legislatures effectively removed from the process.

State legislatures also chose the two senators allocated by the Constitution to each state. Given the special powers to approve appointments that the Senate exercises, this was an effective check not only over all federal legislation and appropriations, but also over the philosophy of federal judges and cabinet officers. The Seventeenth Amendment, of course, stripped that power from state legislatures.

State legislatures also must confirm any amendments to the Constitution, the third great power which the framers invested exclusively in these bodies. Judicial usurpation of the power to amend the Constitution effectively means a bare majority of the Supreme Court can do in one afternoon what the framers intended could only be done by three quarters of the legislatures of the various states.

State governments still have nearly all the theoretical rights allowed within the Constitution and restated more emphatically in the Ninth, Tenth and Eleventh amendments, but states no longer have any real power to protect those rights. The federal government has not only grabbed the powers of state governments, but unrestrained by state governments, it has expanded government in general to much more than was intended in 1789 or than is healthy for a free society.

The consequence has been more "government" because states jealously assert whatever residual powers that the federal government has deigned to leave them, and the federal government has also compelled states by bribery and by coercion, to become the instrument of the federal government whether the state government agrees with federal policies or not.

This understates the seriousness of the problem. The federal government, more and more, has come to mean federal judges. Not only was the federal government intended to be a relatively minor part of public life under the Constitution, but nearly all of this federal power was intended to be invested in Congress.

The subordination of the governed to the unaccountable rulers is now almost complete, and the clear purpose of the most important document of our three American governments, the Declaration of Independence - which describes the very purpose of government as to secure the liberties of the governed - has been turned on its head.

State legislatures should have been the greatest guardians of our liberties. Our Bill of Rights is copied from similar guarantees which state legislatures had enacted under the Articles of Confederation or even in their original charters. When the first clearly unconstitutional action of the federal government threatened our freedoms - when the Alien and Sedition Acts were enacted and enforced - the state legislatures of Virginia and Kentucky nullified those federal statutes.

But the 2000 Election was not ultimately decided by the Florida Legislature, which had the purest claim to resolve the issue, but by the Supreme Court of the United States. Why? Because the Florida Supreme Court had shown every inclination to do whatever it necessary to elect Gore, and because it has become almost universally accepted that courts trump legislatures.

What a single federal code does is reverse this part of the slow decline into an unfree and undemocratic government. Congress still retains vast residual powers, and these have not been carved into mincemeat over the last two centuries.

Perhaps the decline of state governments was inevitable: the Eleventh Amendment was passed very quickly; it was also the last amendment - the only amendment after the Bill of Rights - that aided the powers of state governments. Almost every other amendment (and recall that all these subsequent amendments were ratified by state legislatures) has chipped away at state power.

The decline of democratic institutions within the federal government, however, is not inevitable. And what would we, the people, want if we could reform government? I would submit that we would want more modest regulation of our lives, clear language in our laws, simplicity in the application of these laws, consistency and stability in the laws themselves, and - above all - laws (i.e. legislation) and not judicial, regulatory or executive "law."

The rule of law is perhaps the most indispensable aspect of good and conservative government. The rule of law cannot exist with a multitude of unaccountable and untraceable "law givers" whose myriad laws are whimsically enforced, capriciously interpreted and unintelligibly written.

This article does not address the very serious and well-founded concerns about keeping the federal government from becoming a greater and less controllable instrument of liberal ideology, nor does it provide the case for making the states again sovereign. But it does, I hope, provide an explanation for how we descended so far in our notions of good government and why the single federal code is one possible solution.

Bruce Walker is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.

Other related stories: (open in a new window)

  • The conservative case against a single federal code by Robert S. Sargent Jr. (January 13, 2003)
    A recent article by Bruce Walker on increased centralized government continues to draw responses. This week Robert S. Sargent Jr. takes Walker on
  • The conservative case for a decentralized federal republic by W. James Antle III (January 6, 2003)
    Two weeks ago Bruce Walker argued for increased centralization of government in the United States. W. James Antle III says Walker made an eloquent case but he says there is a reason why America's Founding Fathers crafted the system that Americans have today
  • The conservative case for a single federal code by Bruce Walker (December 23, 2002)
    Bruce Walker argues that a big federal government isn't necessarily a bad thing and offers a few benefits if done right. The federal/state/local split Americans have now is outdated, ineffective and a fraud

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