We Do NOT Have a Federal Government
by Paul Rosenberg
by Paul Rosenberg: No
Free Lunch From the Hackers
of us use the word federal to refer to the United States
national government, as distinct from the state governments. This
has been an error on our part.
was a description, not a name. It would be fair to use federative
in its place. It described a type of government, not a particular
when we say "my friend has a fast car," we don't think
that fast is the car's brand name – it is merely a description
of the car's acceleration and top speed.
was not the brand name of the government that James Madison designed,
it was a description, like fast.
Madison distinguishes between national and federal.
We have lost this distinction, and it is crucial.
Constitution, therefore, is, in strictness, neither a national nor
a federal Constitution, but a composition of both.
- In its
foundation it is federal, not national;
- In the
sources from which the ordinary powers of the government are drawn,
it is partly federal and partly national;
- In the
operation of these powers, it is national, not federal;
- In the
extent of them, again, it is federal, not national; and, finally,
- In the
authoritative mode of introducing amendments, it is neither wholly
federal nor wholly national.
Madison – six
times in this passage – distinguishes between federal and
national. There can be no question about this: he is referring
to two different things. Federal is NOT the same as national.
We no longer
use these distinctions because the US government has become entirely
national – we have nothing else to attach the tag federal
At the founding
– as Madison was writing the US Constitution – the meanings of the
words he used were these:
powers were those of an independent central government.
powers were those that came from the contributions of the
To be fully
precise, "federal" meant a union based on a treaty.
It described the type of association that was being used.
between national and federal in exactly the same way
that we distinguish between a business and a club.
You can see
from Madison's words that the structure of the United States government
very carefully included federally-derived powers. Madison specifies
them as fundamental components.
At its origin,
the national government was dependent on the states, and not vice-versa.
When the states shifted their positions, the central government,
which rested on top of them, had to move along with them.
this was not a case where the national government was supposed
to shift along with the states – there was literally no other
possibility. An analogy would be the surface of the ocean moving
up and down as a wave passes. The national government rode on top
of the federal arrangement – when and where it moved, the national
government automatically followed – like the surface of the ocean
moving with a wave. There was nothing else it could do or be.
this on purpose. It was the central controlling and protecting mechanism
of his design.
Here is what
Thomas Jefferson had to say about the original federal structure
of government in the US:
Jefferson, Letter to William Johnson, 1823
and leading object of the Constitution was to leave with the States
all authorities which respected their own citizens only, and to
transfer to the United States those which respected citizens of
foreign or other States; to make us several [separate] as to ourselves,
but one as to all others.
as usual, understood the essence of the arrangement: Separate among
ourselves, but as one toward the rest of the world – the outsiders
who only saw the surface of the wave, not the waters underneath.
was certainly not alone in this) saw the centralizing movement of
power from the states to the capital as the great threat to the
American experiment of liberty:
Letter to Nathaniel Macon, 1821
is now taking so steady a course as to show by what road it will
pass to destruction. That is: by consolidation first, and then
corruption, its necessary consequence.
PATH OF DESTRUCTION
structure of the US government was abolished in steps, over time.
Certainly the largest factors were the confusion, ignorance, apathy
and fear of the populace, which resulted in mute compliance. There
were, however, watershed moments along the way. The most important
of these events were the following:
v. Madison, 1803
This most important
of Supreme Court rulings resulted from a complex case involving
dirty deals, a politically-stacked Supreme Court and the entry of
partisan politics into the operation of the American republic. By
the time it was over, the Court had ruled against the man who wrote
the Constitution (James Madison) and claimed the sole right to interpret
it. Here’s how it went:
- The Federalists,
Alexander Hamilton being the driving force, organized into a faction
(a political party) that organized and pooled their power.
a loss of control after the election of 1800, they pushed John
Adams to appoint a large group of judges and other officials in
the lame duck session before he left office. Adams complied. These
appointments were written for five-year terms – long enough for
the Federalists to retain control through the next election.
- Not all
the commissions could be completed before Jefferson was inaugurated.
One of these was slated for delivery to a hard-core Federalist
named William Marbury.
- When Jefferson
took the Presidency, Marbury’s appointment was still in the Secretary
of State’s office. James Madison, who now filled that office,
withdrew the appointment for precisely the reasons you’d expect
(being based on dirty dealing), and went about to appoint someone
ran to the Supreme Court, which was entirely composed of Federalist
appointees. He demanded to be given his office.
- In a complex
ruling, the Court (led by John Marshall) ruled that Madison was
wrong to withhold the appointment, but that this didn’t matter,
since the underlying law from 1789 was unconstitutional.
- The shock
of ruling against the author of the Constitution aside, ‘Marbury’
brought up the important issue of constitutionality: Who decides?
Even if we say there is an argument to be made for the Supreme
Court to interpret the Constitution, it is NOT in the Constitution.
The Court should have said something like this:
has fallen to us to decide such an important matter, we will render
our opinion in this case. However, we request of the Congress and
the States, that they pass an amendment to the Constitution clarifying
There is a
great deal of confusion related to Marbury v. Madison that has come
down to us. This ruling is universally presented in American schools
as crucial to the "checks and balances" of the US government.
This is deeply misleading.
review (the Supremes ruling on constitutionality) involves one
branch of the national government providing a check on the other
branches of the national government.
Review provided no check whatsoever on the national government as
design of the republic empowered the states to act as checks on
the national government. This was the primary purpose of the federal
structure. Without it, the national government has no check on its
expansion and use of power. Thus it would seem that the states should
be the interpreters of the Constitution – after all, it was they
who created it.
There is one
last and important thing to mention regarding Marbury v. Madison,
and that is the enthronement of rules above reality – of legal wordings
appointments" of the Federalists used rules to manipulate the
power-structure of the republic and to secure power by unintended
means. James Madison, above all people, understood this. He withdrew
Marbury’s appointment to conclude the abuse that was done to his
Marshall, however, ignored the injustice and parsed words instead:
He went on at length over the distinctions of "nominate,"
"appoint," "confirm," and the fixing of seals.
have an original right to establish for their future government
such principles as, in their opinion, shall most conduce to their
of this original right is a very great exertion; nor can it nor
ought it to be frequently repeated. The principles, therefore, so
established are deemed fundamental.
actually says here is that the American people wish not to work
so hard defending their rights. He is giving them an excuse to be
rules will take over from here on out. You can relax.
the primary issue of the founding of the republic; the Constitution
was subsidiary to that: it was a tool, valuable only if it helped
to secure liberty.
of the central order – liberty being made subsidiary to rules –
and the Federalists were political power-seekers. To them, liberty
was little more than a word that gave them legitimacy; what they
really wanted was power.
stood in their way; Marbury v. Madison pulled it apart.
14th Amendment, 1868
The 14th Amendment
filled a hole in the Constitution by declaring that no state could
trample an individual’s rights, such as the southern states had
done by enslaving black people. (There was an earlier precedent
for this, but the amendment was probably necessary.) The key section
any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
the 14th Amendment made sure that the Bill of Rights applied to
everyone, no matter what their state government did. This was, in
my opinion, a reasonable addition to the Constitution.
with the 14th Amendment is not the text itself, but that people
took it to imply the moral superiority of the national government.
That is a highly questionable assumption.
GOVERNMENT & SLAVERY
talk about states' rights, there is an instinctual objection that
never fails to grip people – that without central government power,
slavery would still exist. The truth, however, is the opposite.
And that truth is this:
of the national government of the United States assisted slavery
until 1863. You can verify this yourself; go look-up The Fugitive
Slave Act of 1850 and the Dred Scott decision.
While the southern
states and the national government were supporting slavery, the
northern states fought it: They nullified laws supporting
slavery. (Wisconsin was exemplary in this.) The secession resolution
of Georgia complains specifically about this:
twenty years the non-slave-holding States generally have wholly
refused to deliver up to us persons charged with crimes affecting
slave property. [Northern state officials] shield and give sanctuary
to all criminals who seek to deprive us of this property.
states were the anti-slavery heroes, not the central government
in Washington. If your school books implied the contrary, they lied.
The 17th Amendment
took the powers of the states and transferred them to Washington,
by mandating the popular election of senators.
senators were elected by the state legislatures. That gave the states
massive power in the central government. It provided a check on
the power of the national government. If the states were unhappy
with the direction of national government, they could instruct their
senators to change it.
being elected directly by the populace, the states were cut-out
of the equation. In their place, political parties gained massive
power, and nearly all power was consolidated in the city of Washington.
in favor of the 17th Amendment was that state houses were corrupt
and that they acted erratically, often leaving seats vacant for
It is certainly
true that the states were unruly. This, however, was not a crucial
issue; the work of the Senate could continue regardless. Respected
politicians, however, did not want to be seen as part of a disorderly
As for corruption
in the states, that was often true, but the implied idea, that Washington
was pristine, was – and remains – a bad, bad joke. But, even now,
the moral superiority of the central government is often assumed,
probably because many people find comfort trusting in the largest
and most powerful thing.
corrupts, but a structure featuring small, separate pockets of corruption
is far less dangerous than one featuring a single, large seat of
corruption, to which all money is gathered. As Thomas Jefferson
It is not
by the consolidation or concentration of powers, but by their distribution
that good government is effected.
of the United States remains, but it is of a fundamentally different
character than the federal republic designed by Madison. Yet, we
all keep saying federal. Not only is this use incorrect,
but it has prevented us from recognizing the crucial fact that the
American federal republic was stolen from our great-grandparents.
This is not a trivial argument over vocabulary.
and frauds are accomplished over time by changes in the meanings
of words. Sometimes this is done purposely and sometimes it happens
because people are more comfortable evading the original meaning.
But regardless of how much intent was involved, the meaning of federal
changed radically between 1803 and 1917. Our current use of
the word conveys a completely different meaning than the original.
This change of definition has masked a fundamental turning point
in the governance of the American people.
What you do
about this – or whether you do anything at all – is entirely your
choice. I am merely pointing as best I can to the truth. I will
add only this:
If you call
yourself an American, be one.
Rosenberg [send him
mail] is the author of Free-Man’s
Perspective, a monthly dispatch on the important things of life:
virtue, courage, science, art, history, philosophy and personal
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