Category Archives: Federalism

It's a given in American politics that partisans become born-again believers in federalism when their faction is out of power in Washington, D.C., only to lose faith in decentralization the next time they win control of Congress and the presidency. Bossing folks around is, after all, a lot more fun than being bossed around. So, it's refreshing to see in this deeply divided country at least tentative steps towards bipartisan agreement that not every issue should be settled by dictates issued from the nation's capital. As encouraging as it is, though, this grudging acceptance of live-and-let-live doesn't go far enough.

"American federalism has always been a partisan issue the GOP are the modern advocates," notes Democratic political adviser and former legislator Frank Pignanelli in the Deseret News. "But the left-leaning have reason to be equally suspicious of overreaching nationalism on key issues: privacy, immigration, environment, etc."

Pignanelli joined with Republican counterpart LaVarr Webb to warn of frantic pandemic-era spending and rules-making by first the Trump and then the Biden administrations. "[T]his immense federal intervention comes at the risk of making states even more subservient to the federal government, both financially and with more federal regulation and mandates."

Pignanelli isn't the first Democrat to discover the attractions of decentralization.

"In the wake of the presidential election, as Democrats realized that Republicans will soon control all three branches of the federal government, progressives disinclined to secede from the Union rediscovered another exit strategy: states' rights," Jeffrey Rosen wrote for The New York Times in 2016. Democrats spent the next several years battling for local governance against the Trump administration's insistence on federal control over matters such as immigration and marijuana.

Since then, Democrats have recaptured the presidency, the House, and (sort of) the Senate. Now they're back to insisting that beltway preferences should prevailat least when their party's positions on issues such as guns and taxes differ with local preferences.

This back-and-forthing on the value of local control vs. central supremacy is exhausting, not to mention overtly opportunistic. As Pignanelli adds, with Webb's agreement, "Federalism must be a bipartisan issue. Otherwise, it will continue to be subject to the inconsistent whims of elections."

To some extent, this opportunism is baked into American politics, argued Ernest A. Young, then of the University of Texas at Austin School of Law, in a 2004 Brooklyn Law Review article about attitudes towards federalism during the War on Terror. He saw switching preferences on central vs. local power as inherent to a system in which elections are won and lost, rotating factions through control of the federal government and localities. "Federalism is about dividing power; nothing much depends on what the power in question is being used for," Young wrote.

But "[i]t is also about providing institutional space for a diversity of political views" and so is inherently important beyond its utility to whoever lost the last federal election. State and local autonomy functions "as a rallying point for political opposition to national policy" and "assures that a particular faction cannot become entrenched and unaccountable in power."

Or, as Webb put it in the Deseret News, "On issues like gun control and the minimum wage, why not let Wyoming be Wyoming and New York be New York? Half of congressional dysfunction could be eliminated by modestly accepting the diversity of our country."

That political differences are coming into dangerous conflict is obvious not just from the formal contests observed by Pignanelli, Webb, and Young, but from the national tensions and strife of recent years. February polling by CBS News/YouGov found that 57 percent of Republicans think of Democrats not as political opponents, but as "enemies"; 41 percent of Democrats return the sentiment.

"The country is increasingly split into camps that don't just disagree on policy and politics they see the other as alien, immoral, a threat," Nate Cohn commented in The New York Times last month. It's not an unprecedented problem, he notes, and other countries that have divided into mutually loathing camps have kept the peace and held together through arrangements including "power-sharing agreements, devolution or home rule."

Power-sharing, devolution, or home rule sounds a lot like federalism, come to think of it, and for good reason. Decentralization of power reduces the danger that people will resent top-down decisions that are contrary to their own preferences and that may even be maliciously intended to hurt "enemies" in a sectarian society. If you believe that people of varied values and preferences shouldn't be forced to live in lockstep, it makes sense to embrace "space for a diversity of political views" and to largely "let Wyoming be Wyoming and New York be New York."

But the federalism of the Constitution was designed for a nation of about 4 million people; many states and even some counties are now more populous than the whole country was at the founding. Are you really allowing free range for diverse views by devolving control down to the level of a California or a Texas that each contain multitudes sufficient to entertain many more conflicting ideas than the original United States could have contemplated? Even Los Angeles County, with 10 million people, is far larger than the entire United States of 1790.

At this point, real federalism, through the devolution of power, requires more than paying lip service to the existence of states and their ability to set independent policies. Decision-making has to go further down the food chain, at least to the county level, to revive something like the federalism of the Constitution. To the extent possible, power should devolve to individuals whose right to make their own decisions and govern their own lives should be respected. Individual self-rule is about as pure an expression of the distributed power embodied by federalism as you'll find.

Failing that, the major parties will continue to pretend that they care about federalism when they've lost control of Washington, D.C., and discard their faith in the principle when they've regained a grip on the central political apparatus. And the country will continue to descend into sectarianism and strife as they play their opportunistic games.

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If You Want To Fix the Country, Devolve Power - Reason

As the long neoliberal experiment of the past 40 years has shown, fantasies of total individual freedom, as a legitimate goal of politics, tend to destroy communities, reward sociopaths, and create societies notable for their heartless prioritisation of wealth over all other measures of value.

And fantasies of total national freedom are, of course, at least as dangerous, disrupting the ordinary trading and human relationships that enable neighbours to work together in harmony, and often leading directly to conflict.

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If Scots need a vivid example of those dangers, they need look no further than the shambolic conduct of Britains exit from the European Union, an infantile fantasy of freedom from all European ties now playing itself out in the waters off Jersey, as two near neighbours and allies waste time and money bickering over fishing and power supply arrangements that were operating without difficulty until the Brexit disruption.

The Daily Mail may be delighted to be able to quote a French official declaring himself ready for war over the fisheries dispute. To many Scots, though, this kind of absurd and tragic sabre-rattling between friends represents yet another reason why Scotland now urgently needs to get out from under the rule of an increasingly jingoistic UK Conservative Party, for which we have not voted since the 1950s.

If and when it finally opts for independence, though, Scotland needs unlike the Brexiteers to be clear-sighted about one thing; and that is that independence in the 21st century world is always limited, and highly dependent on negotiations with neighbouring nations. Its much to the credit of Scotlands independence movement that it long ago accepted this truth in relation to the European Union, and other European trading blocs.

Interdependency with England, though, is a harder pill for some independence supporters to swallow, as is the idea that the disentangling of our 314-year union would probably take many years of negotiation, if it is to be completed in the kind of good order that has been so lamentably absent from the Brexit process.

Despite apocalyptic predictions to the contrary, there are plenty of examples of mature negotiations over these matters in the history of the UK itself, not least in the negotiations for Irish independence, a century ago this year, which resulted in free trade, a common travel area, and even mutual voting rights, never challenged to this day.

However irritating such complicated arrangements may be, though, to those elements in the independence movement that simply want to cry freedom! and be gone the Alba faction, if you will these are the real options and possibilities that will have to be confronted, if and when Scotland votes for a radical change in its relationship with the rest of the UK.

And the truth about all of this negotiation if it goes well, and is not rushed is that its likely outcome is some kind of new confederal arrangement, among the countries of these islands, not vastly different in its practical outcomes from what could have been achieved at any time in the last 30 years, by a full-blooded federal reform of the United Kingdoms antiquated political system, and its doctrine of absolute Westminster sovereignty.

Even now with Wales and northern England growing ever more restless the Labour Party is setting up a new Constitutional Commission to propose radical change, with Gordon Brown, who is to advise it, talking of a constitutional revolution.

In the end, though, there are two profound problems with the idea of further constitutional reform initiated by the UK government. The first lies in the politics of England, which is still with a few exceptions profoundly uninterested in any such project. And the second lies in the politics of Scotland, which has heard these assurances of further UK reform before, notably in the flagrantly broken Vow of September 2014, and is increasingly unwilling to give them credence.

The Brexit debacle has made it increasingly clear to at least half of Scots voters that the relationship between Scotland and Westminster urgently requires renegotiation; and most of those voters are now likely to conclude that the only way to kick-start that negotiation, on something resembling an equal basis, is for Scotland to vote for independence and assert its legal sovereignty, and then to take it from there.

It is all a far cry, of course, from the politics of Braveheart, or the oft-repeated image since the good ship Brexit set sail of Scotland simply paddling off in its own little lifeboat, towards the bright lights of the European Union.

For our own peace and prosperity, we will always have to move in convoy with England to some extent, and to maintain powerful links with all the millions there who share same needs and aspirations as most ordinary Scots; my own trade union, the National Union of Journalists, continued to organise across the UK and Ireland after 1922, and would do the same in the event of Scottish independence.

Yet so far and whatever the outcome of yesterdays vote north of the Border there is little sign of English politics changing in a way that would make that Scottish assertion of independence less necessary.

And unless the UK government stops treating Scottish opinion with evident contempt, and using the vagaries of the British constitution to impose its will on a dissenting nation, the chances are that that moment of Scottish self-assertion will continue, little by little, to become more likely; and increasingly difficult to avert.

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Why Scottish independence and federalism within the UK could have similar practical outcomes Joyce McMillan - The Scotsman

Prime Minister KP Sharma Oli lost the vote of confidence in the House on Monday, but that is just an arithmetical manifestation of the moral-political legitimacy he had already lost in December last year after he dissolved Parliament. At a time when he should have shown utmost humility and humanity to rescue the nation out of the pandemic-induced crisis, all he did was debilitate democratic politics and enable the dance of death.

No other leader has squandered as big an historic electoral mandate and established that the practice of democracy in Nepal is a zero-sum game. This is not to overlook the role of Olis friends and foes in Parliament and the ruling party who have fished in the water muddied by Oli. But the largest piece of the stale cake of notoriety should automatically go to Oli, as he has been at the helm for the past three years, and is the primary architect of the project to weaken democracy for personal reasons.

KP Sharma Oli will be remembered as someone who attempted to break all boundaries of ethics, values and integrity in Nepals democratic politics, intoxicated as he was with greed for absolute power. He has little to show in terms of strengthening constitutionality, federalism and secularism. On the contrary, he played a pivotal role in eroding the utility and meaning of those concepts altogether.

Perhaps the greatest crime Oli committed against Nepali citizens is that he sowed in their minds the seeds of suspicion about the utility of democracy. It will take years, even decades, for the suspicion to fade away. He single-handedly drove democratic politics to the brink when his attempts at emerging as the absolute authority faced challenges. He exhibited how democracy can become a dangerous weapon when it falls into the hands of an unrestrained demagogue.

KP Sharma Oli will go down in history as a leader who crushed the dreams of a generation of Nepalis to see the country leave behind a troubled past and carve out a democratic and prosperous future for itself. He exhibited in himself a great combination of ineptitude in governance and arrogance in partisan politics. He showed how one persons lust for power can turn democratic politics into a loss-making enterprise.

When Nepali citizens entrusted Oli with the reins of a young federal democratic republic, the expectation was that he would keep his personal bias against federalism, secularism and marginalised communities at bay, and help the people realise their dreams of peace, prosperity and justice. With great power comes great responsibility, and it was hoped he would honour what he was entrusted with. He did quite the opposite.

KP Sharma Oli was given a rare chance to lead Nepal into the future, but he showed how far a democratically elected leader could go to buttress his image, consolidate his authority and prolong his rule at the cost of democratic values. His rise and fall in Nepals democratic politics should serve as a cautionary tale of how not to practise democratic politics. A section of those who elected him to power three years ago are perhaps eager to see him head to the exit today, for he has killed their hopes and dreams.

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Oh, what a fall it was - The Kathmandu Post

This content was published on May 6, 2021 - 17:46May 6, 2021 - 17:46

SRF/JH

To mark the 200th anniversary of Napoleon's death, Swiss Public Television SRF takes a closer look at the changes he wrought in Switzerland, as he plowed his way across Europe with the French Imperial Army.

When French troops moved in to Switzerland in 1798, the 13 old cantons and cities ruledor had alliances withother parts of the country. Due to Napoleon's intervention, the once powerful cantons had to give up their sovereignty in favour of a central government.

This led to fighting between advocates of federalism and supporters of the ruling central state. In 1803, Napoleon invited deputies from the quarreling Swiss parties to Paris, where he came up with a compromise: the Act of Mediation, which made all cantons equal, with their own constitutions. It was the birth of modern federalism.

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Napoleon Bonaparte's impact on Switzerland - SWI swissinfo.ch - swissinfo.ch

In a seeming spotlight of the fragility of the Nigerian state, the governors of eastern Nigeria rose to establish a local security outfit co-named Ebube Agu as an outcome of the South East Security Summit that was held in Owerri a couple of weeks ago.

This is coming after the proscribed Indigenous People of Biafra (IPOB) took the initiative to set up the Eastern Security Network (ESN) to protect the Igbo nationality from the apparent failure of the central authorities to protect the eastern landscape, ungoverned in ways that it became the den of herdsmen atrocities and other criminal forces.

The security summit was attended by the governors of the five eastern states, namely, Ifeanyi Ugwuanyi of Enugu, Willie Obiano of Anambra, David Umahi of Ebonyi; Hope Uzodimma of Imo; and Dr. Okezie Ikpeazu of Abia. Others include the President-General of Ohanaeze Ndigbo, Ambassador George Obiozor, and Deputy Inspector General of Police, J. O. Egbunike.The eastern governors have taken the right step. More so, coming after the resurgent and disturbing upsurge of violence and killings in the geopolitical underlined by brazen attacks on state institutions and facilities in Imo State, massacres in Ebonyi, and unrelenting kidnapping. By some estimate over 67 security agents, comprising the police, navy, and prison wardens, have been killed by gunmen in the Southeast and South-South since December last year. This reality was acknowledged in their communiqu that, strongly and unequivocally condemn terrorism and banditry in any part of Nigeria, particularly in the Southeast. The meeting strongly condemned the burning of police stations, violent attacks on custodial centres with the unlawful release of inmates, and the killings including security personnel, natives/farmers and herdsmen.Therefore, the governors resolved to maintain a joint security vigilante for the Southeast, otherwise known as Ebube Agu, meaning fear of a lion inIgbo. In this respect, according to the communiqu of the summit, the political leadership in the Southeast is resolved to bring together all the arsenals at their command, as one united zone, to fight and flush out criminals and terrorists from the zone. That the heads of all the security agencies in the South-East have resolved to exchange intelligence in a seamless, effective new order that will help to checkmate crime in the zone.

By this action, the southeast is merely following the steps taken by the Southwest governors who formed Amotekunto combat the menace of Fulani herdsmen and other criminal gangs in the region. The real point is that this effort is coming too late and the faint-hearted Igbo elite had been unable to decipher what they wanted in the badly governed Nigerian state. It would be recalled that as far back as 2019 the Southeast governors met in Enugu and agreed to set up an integrated security network to oversee the zone. As part of the design, forest guards were to be established in the states in addition to a centre for Southeast Integrated Security Monitoring/Intelligence gathering. It would appear that the effort made by Inspector General of Police, Mohammad Abubakar to sell community policing as distinct from state police that meets the federal criterion threw spanner in the works. Therefore, the governors need to be clear about what they want. By the view expressed in the communiqu, it is likely to be mired in the complexities of federal security agencies in the zone.

A more important issue regarding the security outfit is its latent functionto undermine initiative taken by IPOB to protect the peoples of the southeast, a duty that the governing elite in the region through sheer complacency have refused to perform. We envisage a situation in which the new outfit might be on collision course with the ESN, consequently leading intra-Igbo violence. This fear has been expressed by well-meaning Igbo personalities who felt that the governors ought to have recognised the ESN set up by IPOB since late last year. IPOB leadership warned that no security outfit could be thrown up in the zone aside from the ESN that would not face resistance from the people. In the words of the IPOBs Media and Publicity Secretary, Comrade Emma Powerful, Any security outfit other than ESN in the old eastern region by the governors will incur the wrath of the ESN. Where were these governors before now? Our people have rejected them and their mode of security. We were easily killed and throughout last year, the people kept asking them for protection, but what did they do? They were busy protecting those killing their people. On its part, the Movement for the Actualization of the Sovereign State of Biafra (MASSOB), warned against the politicisation of the new outfit to the effect that, Southeast governors should delete their political party interest, personal political interest, and personal ego and work together as one Igbo family to achieve the goal ofEbube Agu.However, the point should be made that the right to establish state police is a pre-condition for federalism. The 1994 Ethiopian Constitution advertises this essentiality. In its Article 54 (g) on the powers and functions of states, it states that states have the powers to establish and administer a state police force, and to maintain public order and peace within the state.Need we look elsewhere for another example? All these state security outfits including a northern groups moribundShege Ka Fasapoint to the inevitability of organic state police structure in the manner the Ethiopian people have demonstrated in their Constitution. How many editorials will the Nigerian press have to write before the Buhari administration would implement its political party manifesto and reports the same administration commissioned to address federalism, the answer the country needs to address its current national question and unbridled borrowing for consumption?

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Federalism is the answer, after all - Part 26Opinion The Guardian Nigeria News - Guardian

Next Sunday, the winner of the West Bengal elections will be known. The result has the potential of shaping, and possibly undermining, Indias federalism.

The Bharatiya Janata Party (BJP) campaign has been fronted by star campaigners from Delhi Prime Minister Narendra Modi, home minister Amit Shah, party chief JP Nadda, and Union minister Smriti Irani, the only one to speak Bengali. So notable has the been absence of the state BJP that party leaders from Delhi have had to assure crowds that the chief minister will be Bengali if the party wins.

The BJPs dependence on Delhi campaigners has enabled chief minister (CM) Mamta Banerjee to play the Bengali card, for all its worth, and attack the BJP as a party of outsiders. She believes she can win because Bengalis have a strong sense of their identity, and a long record of voting for staunchly Bengali leaders and parties, whatever their political hue.

After Independence, Bengalis stayed with BC Roy as CM until his death almost a decade-and-a-half later. He was a member of the Congress but, in those days, the Congress was a federation of parties headed by leaders who were very much their own men. Roy was an independent-minded Bengali patriot who was close to Mahatma Gandhi but had an ambivalent relationship with Jawaharlal Nehru.

After him came a period of political instability, which earned Bengal a bad name for violent unrest. Then there did come five more years of Congress rule, but in 1977, Bengal revolted against Indira Gandhis autocracy and elected the Communist Party of India (Marxist) and its allies. They ruled for almost 34 years.

The states long-serving CM, Jyoti Basu, once told me that the CPI(M) hadnt been able to spread to the neighbouring states because it was so firmly identified as a Bengali party.

Mamata Banerjees Trinamool Congress, which displaced the Communists ten years ago, is even more firmly Bengali than they were.

In this election, the BJP is hoping that its Hindu identity will trump Banerjees Bengali identity. To strengthen its bid for the Bengali Hindu vote, the BJP has accused her of cultivating a Muslim vote bank. Even though the central Border Security Force is responsible for preventing illegal immigration, the BJP maintains it is still continuing and blames the state government for it.

The immigrants issue led the home minister to jeopardise the success of the PMs recent Bangladesh visit. Two days after Modis return, Shah said in a newspaper interview, Poor people are leaving Bangladesh because they dont get enough to eat in their own country. This provoked an angry response from Bangladeshs foreign minister, who called the remark unacceptable.

The BJP has also tried to persuade Bengalis that joining the mainstream will revive investment in Kolkata and its hinterland, once known as the workshop of India. Bengals reputation for violent industrial unrest has lingered on, harming investment prospects. The years of Communist rule didnt help, nor did Banerjee when she drove Tatas Nano project out of the state.

This election, with its eight phases, has been controversial because of its duration the longest in West Bengals history. This may well have favoured the BJP because it has the resources to sustain such a lengthy campaign.

There has also been the controversy over the rallies both sides have held, ignoring the pandemic.

Its been a bitter, personalised fight. If, when the din of electoral warfare dies down, the BJP emerges the winner, India will lose a doughty champion of federalism and Bengal will break its tradition of being ruled by a Bengali party.

The views expressed are personal

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The contours of the Bengal battle - Hindustan Times

Continued from yesterdayThe two postulates are the theory of centralised federalism and the theory of federalism, strictosenso. Between the two theories, there can ultimately be no compromise. What has been occasioned by the dominance, though ominously, of the theory of centralisedfederalism in Nigeria has been a siege economy, a curbed and subservient judiciary, and a regulated press a manifesting variant of which is the attempt to muzzle the social media.

Centralised federalism is positioned to impose uniformity on the whole nation in the interest of a false claim of ensuring uniform development. It will distrust all forms or any form of eccentricity and distinction. It will crush local autonomy. It will dictate the structure, form and content of education. It will corrupt or take advantage of religion. It will depend greatly on a fictive voters list or voter register even as a tiny minority elects the representatives of the people relying on the apathy of the rest as a passport to office. This is already happening. It has however been accentuated by the insistence of the present APC government not to abide by the verbiage of its published manifesto freely drawn up by itself to return the country to a true federal state on assumption of office in 2015. But the complacency of the APC government is misplaced as time will tell. Centralised federalism is in itself a misnomer. It is, in fact, a contradiction in terms regarding the true meaning and intendment of federalism. What the government is practising as federalism offends or affronts the instructed conscience of all who recognize the original purpose of the choice of federalism for Nigerias diverse peoples.

Since about 1999, the demand for the practice of true federalism has been on the front burner. The emphasis has been on welfare and social reform as more and more people come to recognise that all is not well. The Nigerian society is not stable. Whole geographical units are showing signs of wishing to opt out. Organised minorities clamour to be heard and what they cannot win by the ballot box, they seek to extract by violence. Nigerian society is sorely divided as never before.

It is proposed here that the Buhari government should, as a matter of urgency, recognise that Nigerias attenuated links are further weakening. In place of diversity the government is foisting uniformity on the people; in place of equality, it is pursuing the policy of the divine right of a section of the community; in place of the requirement to protect the rights of minorities and the individual, it is preaching the rights and privileges of a fictive majority population. As an alternative to the rule of law, it propounds regulation. What is prescribed here now is for the government to recognise limits beyond which government must not go. The ways and means by which it can be compelled to observe those limits are suggested to be within the purview of the people. In place of the present concentration of power, power should be diffused. This will confer rights of self-government on previously-ignored entities. Above all, it corresponds with the general conscience of mankind. It must be borne in mind that individuals and minorities have rights against constituted authority, even when it is elected by universal franchise.

In closing, we draw a parallel between the siege of Nigerias territory by alien elements and the curious frenzied efforts to reconstruct the history of Ilorin in the pantheon of Yoruba ancient or legendary towns vis-a-vis the true, authenticated or recorded history of that conveniently-misunderstood human settlement. Beleaguered Afonja, as Aare OnaKakanfo and traditional ruler of Ilorin had rebelled against his principal, the Alaafin of Oyo. He sought to deny the suzerainty of Alaafin or take instruction from him. To perfect his rebellion, he enlisted the support of Alimi, a peripatetic Fulani and Islamic preacher. He was reputed to be a potent medicine man too. Alimi helped to beef up Afonjas army with a detachment of brave infantry men from Sokoto. Together, they successfully warded off the Alaafins advancing army. In all these, Afonja had under advice sought refuge away from his throne. He fell for Alimis subterfuge to stay away to await the announcement of victory. At the conclusion of the military operation, Alimi seized the throne declaiming Afonjas right to the stool. The fleeing Afonja was not fit to continue as ruler. Afonja was killed as he insisted on his mandate. Alimi became the first Emir (a culturally irrelevant title in Yorubaland) of Ilorin.

Those who invite foreigners and outsiders to come and fight their battles run the risk not only of insurgency but of the shame of a crisis of identity even as they become quislings for the external forces. The falconer has lost his authority to recall the falcon from its perfidy.

Concluded.

Rotimi-John, a lawyer and commentator on public affairs wrote vide lawgravitas@gmail.com

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Falcon can no longer hear the falconer Part 2 - Guardian

In my last post, I described the general nature and theory behind the collection, "The Reconstruction Amendments: Essential Documents," (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021).

In this post, I describe the theory and contents of Volume One, The Antebellum Constitution and the Thirteenth Amendment. This volume presents the antebellum constitutional debates which ultimately inform the framing and adoption of all three Reconstruction Amendments, and the public and legislative debates accompanying the framing and ratification of the Thirteenth Amendment. The two volumes are meant to be read (yes, read) in tandem; the debates and ideas documented in Volume One play key roles in the constitutional debates presented in Volume Two. That said, Volume One stands on its own as a documentary history of the antebellum national debate over whether the original Constitution was pro-slavery or anti-slavery (the current "1619 Project" debate), and the national abolition of slavery through the Thirteenth Amendment.

Volume One begins with documents representing the various theories of constitutional federalism that arose in the period between the Founding and the Civil War. The issue is important because theories of federalism later play key roles in the debates over the shape of the three Reconstruction Amendments (references to the Federalist Papers, for example, occur over and over again during the Reconstruction debates). Documents in this opening section include the Virginia and Kentucky Resolutions and "the principles of '98," the nationalist theories of John Marshall and Joseph Story, the radical state rights theories of John C. Calhoun, and James Madison's elderly efforts to oppose both John Calhoun and John Marshall.

Readers may be surprised to learn that some of the strongest supporters of constitutional federalism during this period were northern abolitionists who relied on theories of federalism in their resistance to the nationalization of slavery. This is most dramatically illustrated in the state of Wisconsin's 1850s decision to nullify the Fugitive Slave Act and reject the decisions of the Supreme Court.

Despite the wide-spread embrace of federalism, this same period also witnessed a growing nationalist interpretation of the originally federalist Bill of Rights. For example, the abolitionist Joel Tiffany insisted that the privileges and immunities of citizens of the United States included the rights declared in the first eight amendments (Tiffany, "A Treatise on the Unconstitutionality of Slavery").

A similar example can be found in an 1859 speech by a young Republican congressman from Ohio who declared that the Privileges and Immunities Clause of Article IV impliedly bound the states to respect the federal Bill of Rights (John Bingham, "Speech Against the Admission of Oregon"). Bingham's speech is critically important for anyone seeking to understand the theoretical roots of Bingham's later drafts of the Privileges or Immunities Clause of the Fourteenth Amendment.

Much of the first half of Volume One presents the antebellum debates over slavery and its relationship to the original Constitution. These materials include the debates over slavery in the Philadelphia Convention, the Missouri admission debates, the rise of northern abolitionism, slave state efforts to suppress abolitionist literature, northern resistance to the extension of slavery into the territories and the Supreme Court's decision in Dred Scott. Although the collection includes key congressional and political debates, the materials also include a vast array of voices from outside the halls of power demanding an end to the practice of chattel slavery. These include black activist David Walker's "Appeal," Susan B. Anthony's "Let's Make the Slave's Case Our Own," and Frederick Douglass's "The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?"

The Second Half of Volume One documents the country's remarkable journey from proposing a pro-slavery Thirteenth Amendment in 1861 to ratifying the anti-slavery Thirteenth Amendment in 1865. In a last-ditch effort to stanch the secession movement, Congress passed the "Corwin Amendment" which declared that "no amendment shall be made to the Constitution" which would authorize Congress to "abolish or interfere" with slavery in the states. The gambit did not work and, despite being ratified by a number of states, this first Thirteenth Amendment was forgotten with the outbreak of Civil War.

The dramatic framing and passage of the second Thirteenth Amendment takes up the remainder of Volume One. Documents include anti-slavery amendment petitions from the Women's Loyal National League, Charles Sumner's failed efforts to broaden the language of the Thirteenth Amendment, Democratic opposition speeches declaring that the proposed abolition amendment was an unconstitutional attempt to alter an irrevocably pro-slavery Constitution, the House of Representatives' failed first effort to pass the amendment, Frederick Douglass's "The Final Test of Self-Government, and the dramatic second round of debates and a second vote that turned on the decision of a handful of Democrats who might, or might not, change their original vote.

Volume One closes with the public debates over the ratification of the Thirteenth Amendment. Most of these materials, as far as I know, have never appeared in any prior collection. The proposed amendment raised a host of difficult questions that were discussed in newspapers around the country.

Were the states of the soon-to-be defeated Confederacy still in the Union and, if so, should they be allowed to vote on (and potentially defeat) the proposed amendment? ("Is the Union Destroyed?" New York Times editorial). Would ratification result in Democrats taking control of Congress since the formerly enslaved population of the southern states would now count as a full five-fifths of a person for the purposes of congressional representation (and membership in the electoral college)? ("Dr. Lieber's Letter to Senator E.D. Morgan," New York Tribune).

Lincoln's tragic assassination resulted in Vice President Andrew Johnson taking the lead in securing the abolition amendment's ratification. Johnson established provisional governments in the south and prodded their governors to ratify the abolition amendment and, perhaps, "extend the elective franchise to all persons of color who can read the Constitution" in order to quell congressional opposition to readmitting the southern states (Pres. Johnson to Provisional Mississippi Governor William Sharkey).

Meanwhile, anti-slavery societies, sensing that ratification was imminent, pivoted to calls for black suffrage, with advocates like Francis W. Harper declaring it would be unpardonable to say to black men "You are good enough for a soldier, but not for a citizen" (New York Times, "Speeches at the 1865 meeting of the American Anti-Slavery Society"). Similarly, the signatories of "An Address from the Colored Citizens of Norfolk Virginia to the People of the United States," demanded the rights of suffrage, not only as protection from discriminatory black codes, but also because "[n]o sane person will for a moment contend that color or birth are recognized by the Constitution of the United States as a bar to the acquisition or enjoyment of citizenship."

As the above documents illustrate, the drama of the Fifteenth Amendment began even before the ratification of the Thirteenth Amendment. In the meantime, however, ratification of the Thirteenth remained uncertain. Northern states like Delaware, Kentucky and New Jersey rejected the amendment. Provisional state legislatures feared Section Two of the proposed amendment would empower Congress to regulate local civil rights and establish black suffrage (see, e.g., Mississippi Joint Committee Report and Rejection of Proposed Amendment).

In response, Pres. Johnson's Secretary of State William Seward wrote letters to the southern governors insisting that their concerns were "querulous and unreasonable, since that clause [Section Two] is really restraining in its effect, instead of enlarging the powers of Congress" ("Seward to S.C. Provisional Governor Perry" New York Times). A number of southern legislatures ratified the amendment along with resolutions declaring their understanding that Seward's construction of Section Two was correct (see, South Carolina, "Ratification and Accompanying Resolutions," Nov. 3, 1865).

When Secretary of State Seward declared the ratification of the Thirteenth Amendment in December 1865, the question of congressional power under Section Two moved to center stage. In November and December of 1865, multiple national newspapers published editorials with competing interpretations of congressional power to enforce the Thirteenth Amendment. The issue would dominate the early debates of the Thirty-Ninth Congress and ultimately influence their decision to pass a Fourteenth Amendment.

Tomorrow: Documenting the extraordinary drama of the framing and ratification of the Fourteenth and Fifteenth Amendments.

Read the rest here:

"The Reconstruction Amendments: Essential Documents," Vol. 1: The Antebellum Constitution and The Thirteenth Amendment - Reason

University of Chicago Press has just published "The Reconstruction Amendments: Essential Documents," a two-volume collection of original historical documents relating to the framing, ratification and public understanding of the Thirteenth, Fourteenth and Fifteenth Amendments to the American Constitution. Prior to this publication no such collection existed. In this and three additional posts, I will explain the theory behind the collection, the nature of the included documents, and how scholars can use the collection to teach a basic course on the Reconstruction Amendments. My thanks to Eugene Volokh and the folks here at the VC for giving me this opportunity.

Ten years in the making, the completed volumes contain over four hundred original historical documents which collectively tell the story of America's struggle to define and redefine the meaning of American freedom, national citizenship, constitutional federalism and the basic rights of all persons. Beginning with the antebellum public debates over slavery and the original Constitution, and ending with ratification of the Fifteenth Amendment, the two volumes open a window on the grand national debates which attended the second most important period of constitutional debate in American history. A great deal of this material, particularly documents relating to the ratification of the three amendments, has never before been published (or, in many cases, even identified).

The collection focuses on the public debates which drove and accompanied constitutional reconstruction. The extraordinary constitutional conversation that prompted the adoption of the three Reconstruction Amendments included the voices of presidents, governors, military officers, radical abolitionists like William Lloyd Garrison and Wendell Phillips, constitutional abolitionists like Lysander Spooner and Joel Tiffany, black civil rights activists like David Walker and Frederick Douglass, women's rights activists like Francis Watkins Harper, Susan B. Anthony, and Elizabeth Cady Stanton, pragmatist Republicans and obstructionist Democrats, the participants in freedmen's conventions and the equal rights conventions, southern newspaper editors and northern political scientists, as well as politicians like Charles Sumner, Thaddeus Stevens, James F. Wilson, James Ashley, John A. Bingham, Lyman Trumbull, Jacob Howard, and George S. Boutwell.

Volume One begins with the antebellum debates that set the stage for constitutional reconstruction. This includes antebellum debates over the nature of federalism, the role of slavery in the original Constitution, the meaning of citizenship, and the scope of national liberty. The second half of Volume One presents the legislative and public debates attending the framing and ratification of the Thirteenth Amendment. In my second post, I will describe some of the key documents in Volume One, including the first Thirteenth Amendment which would have constitutionally entrenched chattel slavery, and the extraordinary decision of the state of Wisconsin to nullify the federal Fugitive Slave Clause and invoke Madisonian federalism in support of anti-slavery state policy.

Volume Two presents the legislative and public debates over the framing and ratification of the Fourteenth and Fifteenth Amendments. These documents include not only the congressional debates (now word-searchable), but also the heretofore unavailable (or unknown) state ratification debates. Finally, I also have prepared a Teacher's Manual with a model syllabus and teaching notes for a fourteen-week course on the Reconstruction Amendments.

In my next post, I will discuss the theory and content of Volume One, The Antebellum Constitution and the Thirteenth Amendment. This will be followed by a post on Volume Two, and then a final word on the collection and the available teaching materials.

For now, I close with a word about the title, "Reconstruction Amendments: Essential Documents." In some cases, "essential" refers to the importance of the included documents themselves, such as the documents presenting the drafting debates of the Thirty-Ninth Congress.

In other cases, however, "essential" refers not to a particular document but to the essential importance of the issue discussed within that document. For example, for each amendment, I have included newspaper coverage of the framing and ratification efforts. These newspaper articles are meant to illustrate how closely the public was able to follow the framing debates, assess the arguments in favor of ratification, and consider the implications of failure or success. This contemporary public awareness is itself an "essential" aspect of constitutional reconstruction.

See the article here:

The Reconstruction Amendments: Essential Documents, a Follow-up to The Founders' Constitution - Reason

In a similar vein, 21 Republican-controlled states, led by Texas and Montana, havesued the Biden administrationover its decision to revoke a permit for the Keystone XL pipeline, calling it an unconstitutional overuse of executive power that would diminish the states economies and tax revenue. Both lawsuits are pending in federal courts. Separately, in response to Bidens alleged hostility to the energy industry, Texas Governor Greg Abbottissued an executive order in January directing state agencies to use all lawful powers to challenge federal policies that disadvantage oil and gas operators. (Texas state agencies with the ability to loosen environmental regulations on the oil and gas industry largely do not appear to have changed policies in response to the order.)

Ultimately, many of these actions may amount to little more than grandstanding, and its difficult to discern whether or not a broad, deliberate strategy is at work. But behind the scenes, call records obtained by Grist show that the American Legislative Exchange Council, or ALEC, has formed a new working group to build upon these efforts.

On a one-hour call with ALEC members in late February, former Utah state representative Ken Ivory claimed that each directive in the presidents Januaryexecutive order on climate actionunduly entrenched federal power and stripped authority from the states. He surfaced fears that Biden will declare a national climate emergency that unlocks more than 130 unilateral executive actions. (Its unclear how Ivory, who did not respond to Grists request for comment, arrived at that figure.) Ivory also faulted the Democratic administration for promoting climate-focused policies within federal agencies through executive orders, rather than routing all proposals through Congress.

Were seeing something that theyre identifying as a new age in climate federalism, Ivory said.

The call was the first of two that have taken place so far as part of ALECs new Functional Federalism Working Group, which exists separately from a longstanding ALECtask force on federalism and international relations. The new group hasnt been publicized on the ALEC website beyondtwo brief mentionsinblog postspenned by Ivory. Its name suggests that the group is meant to redress what Ivory described as an imbalance of power between Bidens presidency and state governments, a majority of which are dominated by conservatives.

Whats the reasoning or the exact strategy for them in creating this secretive working group, we still dont know, said David Armiak, a research director with the Center for Media and Democracy, a nonprofit government watchdog group that tracks ALECs initiatives and provided Grist with a verbatim record of the two recent calls. Fossil fuel and pharmaceutical companies do still play leadership roles and very active roles in sponsor meetings, and theyre worried about some of these executive actions.

A spokesperson for ALEC did not respond to Grists requests for comment.

ALEC is a membership organization for state lawmakers and industry representatives that is best known for drafting model bills that are then picked up by state legislatures. Its bills have been linked to a number of state lawsdiscouraging clean energyandcriminalizing protests against pipeline projects. ALECs efforts to block climate progress, combined with itsalliance with right-wing groupsthat explicitly promote climate change denial, has led major corporations such as ExxonMobil, Royal Dutch Shell, Microsoft, and Google tocut ties with the group.

While its still too early to tell exactly what shape opposition to the Biden administrations climate proposals will take, the ALEC calls provide a few indications. On the calls, Ivory floated three potential ways for state lawmakers to present a united front against the Biden agenda: nullification, or passing state legislation to invalidate federal actions that states believe are unconstitutional; the initiation of a constitutional convention that would pass amendments giving states more power; and the passage of non-binding resolutions reaffirming the U.S. Constitutions Tenth Amendment, which declares that powers not explicitly granted to the federal government belong to the states, in state legislatures.

The states have to be able to speak with one voice, Ivory said. As John Adams said, The clocks all have to strike at one.

Political scientists who spoke to Grist doubted the likelihood of a constitutional convention or nullification actions, but they cautioned against underestimating the effects of passing resolutions at the state level and discussing ways to wrest power from the federal government.

Theyre providing the intellectual scaffolding for this elite movement, said Jacob Grumbach, a University of Washington political science professor who has studied ALEC closely. The moves are symbolic and help unify disparate camps within the conservative movementfrom anti-abortion groups to pro-gun groups and fossil fuel interestsby highlighting the shared benefits of more power at the state level, he said.

Grumbach noted that, during the Trump years, ALEC was less involved in the issues animating national politics than it had been during previous administrations, and it further cemented its position as a bill mill for state legislatures. ALECs federalism initiatives are already cropping up in state legislatures. Resolutions reaffirming the Tenth Amendment and ostensibly nullifying Bidens executive orders have been introduced in at least four statesIdaho,Texas,South Carolina, andMontanathis year, but they have not yet passed. The bills are based on a theory that states have the right to veto federal policies or declare them null and void within their borders if they believe they are unconstitutional. The theory has its roots in the antebellum efforts of some states to preserve slavery and has not been upheld in federal court.

Leah Stokes, a political science professor at the University of California, Santa Barbara, said that it was predictable that ALECs new federalism working group would be laser-focused on climate policy. (Editors note: Stokes was selected as aGrist 50 Fixerin 2020.) With theexodus of technology companiesfrom ALEC, many of the organizations remaining members are oil and gas interests.

Its not surprising to see the fossil fuel industry try to push back and weaken progress because they dont want us to get off fossil fuels, she said. They want to keep making profit and imperil the climate stability and the health of people all across the United States. Thats how they make money.

Read more here:

Leaked Calls Reveal ALEC's Secret Plan to Thwart Biden on Climate Mother Jones - Mother Jones