Local Sovereignty: How freedom was lost

Restoring America One County at a Time

Chapter 3: “County Rights”

3.2 How freedom was lost

We have now covered the “county rights” principle which is close to an ideal free society (much closer than what we have today, certainly), and we have also seen how America enjoyed this high level of freedom in her early colonies. The question then becomes, if society was so free and things were so great, how was the freedom lost? How did we get from basically free to a behemoth welfare and warfare state (really empire) filled with all kinds of taxation and corruption as well as central government domination?

The conservative sociologist Robert A. Nisbet once said that up until the year he was born, 1913, the only contact the average individual ever had with the Federal government was the Post Office. In that same year appeared the Income Tax Amendment and the Federal Reserve Act—both of which have financially enslaved the average person to the federal government, overriding and consuming the roles of state and local governments in many places along the way. Both of these new developments were of course far beyond the society envisioned by most of the Framers of 1787, and even further beyond that of colonial America.

The erosion of local sovereignty and freedoms has mostly been a long, slow, gradual process, although punctuated at key times—usually wars—by rapid increases in centralized state power. Many people will rightly point to one or more of those rapid government power-grabs—the Civil War, the Wilson war state and the leftist progressives, FDR’s New Deal, LBJ’s Great Society, Vietnam, the Patriot Act, Obamacare, and so on. Some have even pointed out that large abuses against the Constitution took place as early as Jefferson’s unprecedented and many would argue unconstitutional Louisiana Purchase in 1803. But it is just as important, I think, to look at what has allowed all these great power grabs to begin with, and thus what has enabled the long, slow, and gradual erosion from the start.

I would argue that the first major round—and the most hotly contested round—of the debate between proponents of centralized power and proponents of freedom, came in this country with the Constitution of 1788. It was this document that enable proponents of centralized power to carry out their various agendas at various points in subsequent U.S. history—whether their encroachments advanced rapidly or slowly and gradually. Without power over State and local sovereignties collected and vested in one centralized institution, the types of abuses we have endured would have been much more difficult for the tyrants among us to procure at least, if not almost impossible.

And, ironically, nearly all of the various forms of tyranny we suffer and decry today were predicted and denounced by the critics of the Constitution at that time. Many of the principal fathers of the American Revolution saw today’s problems coming in their own time. Despite common sentiment and the textbook version of American history, these most prescient men are the least known, least read, and often completely forgotten figures of that time. They are not Washington, Madison, and Hamilton. They are not the authors of the Federalist Papers. These latter were the tyrants in the eyes of those to whom I refer.

I am talking about the authors of the so-called Anti-Federalist writings. Few people today even read the much more publicized Federalist Papers. We’re not taught about them in school. The Papers’ language and concepts are often found too lofty and difficult, despite the fact that these Papers were the newspaper editorials of their time. Few people even know of them. Fewer read them. And even fewer read the majority opposition of the day—the tea party types of the day—the Anti-Federalist papers.

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Yet these liberty-minded leaders saw the centralizing forces at work during their day as the sinews of tyranny. They knew absolutely where centralized government power would lead. On this principle they opposed the Constitution itself, for it ceded too much power to the central government.

One of them, writing under the pseudonym “The Federal Farmer” (possibly Richard Henry Lee), foresaw the direction of centralizing power as a departure from a free society, but also as the long-term agenda of a few ambitious leaders:

The plan of government now proposed [the Constitution] is evidently calculated totally to change, in time, our condition as a people. Instead of being thirteen republics, under a federal head, it is clearly designed to make us one consolidated government. . . . This consolidation of the states has been the object of several men in this country for sometime past. Whether such a change . . . can be effected without convulsions and civil wars; whether such a change will not totally destroy the liberties of this country—time only can determine.[1]

The number of writings of these more freedom-minded individuals well outnumbered those in favor of the new Constitution. And by most accounts, the number of those actual people who opposed to the Constitutional centralization of power greatly outnumbered those who desired it. The problem was—as with most decentralized forces that are forced quickly to debate their case on a central, national stage—they lacked the political machine of tribes of lawyers and financiers who wanted the Constitution to pass for various reasons. In short, the scenario was in which the forces of freedom had numbers on their side, but the forces of centralization were a step ahead due to their organized agenda, planning, political machine, and the energy behind these things.

Without rehearsing the various points of the Anti-federalists, it is most convenient here to use the summary provided by one of their writers. “A Plebeian” provided a summary of the chief objections to the Constitution “among writers, and in public bodies throughout the United States.”[2] Among other things in the Constitution, he warned that:

[1.] it is calculated to, and will effect such a consolidation of the States, as to supplant and overturn the state governments. . . .

[2.] the representation in the general legislature is too small to secure liberty, or to answer the intention of representation. . . .

[3.] it gives to the legislature an unlimited power of taxation . . . direct and indirect. . . .

[4.] it is dangerous, because the judicial power may extend to many cases which ought to be reserved to the decisions of State courts, and because the right of trial by jury is not secured in the judicial courts of the general government, in civil cases. . . .

[5.] The power of the general legislature to alter and regulate the time, place, and manner of holding elections . . . . will place in the hands of the general government, the authority, whenever they shall be disposed, and a favorable opportunity offers, to deprive the body of the people, in effect, of all share of government. . . .

[6.] The Mixture of legislative, judicial, and executive powers in the senate;

[7.] the little degree of responsibility under which great officers of government will be held;

[8.] and the liberty granted by the system to establish and maintain a standing army, without any limitation or restriction. . . .[3]

In short, Plebeian foresaw a surrendering of political power, representation, taxation, judicial power, and military power to a centralized state.

Since this list was but a summary of what many anti-federalist writers had said in many places, in is easy to find these critiques most eloquently defended by the others. One of the major writers among them wrote under the name “Brutus,” and could likely have been the delegate from New York, Robert Yates, who left the Convention early in disgust. He decried the seemingly unlimited powers of taxation,

for they extend to every possible way of raising money, whether by direct or indirect taxation. Under this clause may be imposed a poll-tax, a land-tax, a tax on houses and buildings, on windows and fire places, on cattle and all kinds of personal property:—It extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, newspapers, almanacs, and books:—It comprehends an excise on all kinds of liquors, spirits, wines, cider, beer, etc. and indeed takes in duty or excise on every duty or conveniency of life; . . . In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or other of three general terms. We may say that this clause commits to the legislature every conceivable source of revenue within the United States.

He later described such power to tax in terms of absolute invasion of private lives:

This power, exercised without limitation, will introduce itself into every corner of the city, and country will wait upon ladies at their toilett [vanity], . . . their domestic concerns, . . . to the ball, the play, and to the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlor, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be constant companion of the industrious farmer in all his labor, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the Unites States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE! . . .

I say, such a power must necessarily, from its very nature, swallow up all the power of the state governments.

He foresaw massive administrative law and bureaucracy needed to carry this out:

Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country. . . .

The language here came directly from Jefferson’s in the Declaration of Independence. Brutus was reiterating the exact same charge the colonists had levied against King George: he had “sent hither swarms of Officers to harass our people and eat out their substance.” So the advocates of the Constitution were committing the same tyranny for which the people had just fought to free themselves.

And even above and beyond this, Brutus criticized the proposed federal power to make all laws “necessary and proper” to carry out their desires:

It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. . . . The command of the revenues of a state gives the command of everything in it.—He that has the purse has the sword, and they that have both, have everything; so that the legislature having every source from which money can be drawn under their direction, with a right to make all laws necessary a proper for drawing forth all the resource of the country, would have, in fact, all power. . . .

These things alone amounted to enough destroy state power, let alone local:

[T]his power in its operation, would totally destroy all the powers of the individual states. . . . [T]his power, given to the federal legislature, directly annihilates all the powers of the state legislatures.[4]

These fears in regard to the vast powers to tax materialized almost immediately after the Constitution, when Hamilton proposed and helped pass a national tax on that group of people with the least representation, the least organization, and possibly the least ability to organize a fight back—whisky makers. And when they did pull together and resist the tax collecting agents by local force, the fear of the newly centralized standing army also materialized as Washington and Hamilton themselves mounted horseback and led 13,000 troops to suppress the so-called Whisky Rebellion.

Plebeian’s list, representing many other anti-federalist writings, includes a warning against the power of the Supreme Court: “it is dangerous, because the judicial power may extend to many cases which ought to be reserved to the decisions of State courts, and because the right of trial by jury is not secured in the judicial courts of the general government, in civil cases. . . .”[5]

Brutus, likewise, had warned clearly, “If . . . the legislature pass any laws, inconsistent in the senses the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature.”[6] Another, “The Federal Farmer,” added: “we are in more danger of sowing the seeds of arbitrary government in this department than in any other.”[7] “Candidus,” attributed to Samuel Adams, warned that it would “occasion innumerable controversies; as almost every cause (even those originally between citizens of the same State) may be so contrived as to be carried to this federal court.”[8] This means, effectively, the end of State and local sovereignty, for a partisan Court could construe any decision, and that decision would stand for every State.

This fear materialized quickly after the Federalist proponents pressured the States to adopt Constitution. Within a mere fifteen years the nationalist John Marshall framed the system and then decided the very case he framed—Marbury v. Madison (1803)—in favor of the nationalists against the Jeffersonians. The decision established the doctrine euphemized as “judicial review” where the Supreme Court can essentially legislate through their decisions.

In 1819, he decided perhaps the most damaging case against State power until after the Civil War. In McCulloch v. Maryland, he decided that the federal government could operate branches of the Federal central bank within state jurisdictions, run by unelected board members for their own profit, and the states could neither regulate the bank nor tax its income. He reminded the States that the federal Congress could pass whatever laws were—in those objected words—“necessary and proper” in order to carry out their other Constitutional powers; and once passed, states could do nothing to violate these federal laws. Even the Tenth Amendment, which was included as a means of preserving for the States all powers not enumerated in the Constitution, was not enough to stop Marshall from overriding States’ powers. He found just enough of a hair to split:

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Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only, that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;’ thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument.[9]

Thus, as Plebeian and those he represented had predicted, did the federal government “supplant and overturn the state governments.”

The power of the Court would again be furthered in Cohens v. Virginia (1821), as Marshall interpreted the Constitution as extending federal jurisdiction to criminal in addition to civil cases.

More limitation on State powers came in 1824 when Marshall ruled against the State of New York in Gibbons v. Ogden. He struck down a shipping monopoly granted to a New York company operating between New York and New Jersey; this he did on grounds that federal licensing statutes took precedence over state laws, and thus a state could not license monopolies when engaging in interstate commerce—an area expressly enumerated for the federal government in the Constitution. Of course this had been a design of the nationalists all along, despite their denials to the contrary during ratification. In 1821, a Washington D.C. printer and politician named Joseph Gales printed extracts from Robert Yates’ notes upon the Constitutional Convention. Upon receiving a copy, Madison wrote a letter to Gales in which he dismissed Yates as partisan and prejudiced. In the letter, however, Madison notably confided one of his true purposes at the Convention, “which was among other things to take from that State the important power over its commerce.”[10] Perhaps Madison felt safe in admitting his true designs some thirty-two years after the fact.

States rights were furthered destroyed and judicial review more firmly entrenched after the Civil War, during reconstruction, particularly by the Fourteenth Amendment. Things have only gotten worse over time. So The Federal Farmer’s warning came true, indeed, time has told: States rights were hijacked by the nationalists, and it took a civil war eventually to enforce their tyranny.

Many people today rightfully see the great encroachments of the Federal government in different points in American history, but too often we stop too short of the root cause. It is not enough to complain about the Patriot Act, or FDR, or the Progressive Era. These were all tragic for the principles of liberty, true, but they were merely later variations upon a theme, played upon the original instrument of centralization. Without legislative, judicial, and executive powers centralized in Washington, D.C. to begin with, these later abuses could never have been imposed on the states successfully.

While problems can arise also under a decentralized system of freedom, these will not compare to the tyrannies that grow from the opposite. The anti-federalist Candidus warned that we must “distinguish between the evils that arise from extraneous causes and our private imprudencies, and those that arise from our government.”[11] Power over vital areas of human action such as commerce, legislation, defense, etc., Candidus realized as too precious and precarious to leave to the decisions of a few men to enact by governmental force; it should rather be left as decentralized as possible.

This fear of centralization rested not only the principles against that structure of government, but also on the fact that wise and benevolent representatives would not always be found to fill the few seats of power. Instead, power-seeking, greedy, and avaricious men would seek and win those seats, and the people would suffer for it. Paying lip-service to the beloved leaders of the day, he foresaw that “though this country is now blessed with a Washington, Frnaklin [sic], Hancock and Adams,” elected leaders shall not always possess such integrity, and “posterity may have reason to rue the day when their political welfare depends on the decision of men who may fill the places of these worthies.”[12]

So this is what was predicted by the opponents of the Constitution, and this is what has happened: the State and local governments were overridden by the powers of a national government. The people are not adequately represented, and self-interested powers—usually of big banks and big business—co-opt the few seats of power. Then these powers begin to work further to ensure the advantages of the elite via more powerful government. The government grows consistently over time at the expense of the people and their freedoms and wealth. This was predicted before the Constitution, because of the Constitution, and it has occurred almost exactly as was predicted at that time.

Even more important, however, than rehearsing the historical “I told you so,” is to understand the methods used to implement and impose greater centralized power on states and counties—even beyond what the Constitution had done. In other words, in a country where freedom and individual responsibility were so widespread, highly valued, perceived to be something worth fighting and dying for (“liberty or death!”), how in the world did the centralizers succeed? And how have they continued to succeed further for over two centuries?

There are many answers to that question because there are countless tactics of tyranny. But some important ones for us to realize immediately are first, a fairly early change in the electoral system which has changed the nature of representation and given undue political power to urban areas, a minority of swing voters, and special interest groups. But most importantly, second, has been the rise of federal agencies with federal funds buying off state and local governments by means of all kinds of grants and handouts in exchange for compliance. Like many welfare and socialism beneficiaries dependent upon the system as individuals, counties and local governments have just as much *taken the cheese*, and thereby become dependent upon federal money, and thus become trapped in the system.

The first was an assault mainly on the power of local government by the State governments. The issue was the Electoral College—the system which elects the president. In the Constitutional design, the Electoral College exactly mirrors the State’s representation in Congress: the number of electors shall be “equal to the whole Number of Senators and Representatives.” While the precise manner in which they are chosen and charged to vote is left to the State Legislatures themselves, the Constitutional design indicates that it was designed to parallel the representation of the Congressional districts. This was largely followed up until 1832, when politicians began to see the power of using a popular state-wide vote, and began using this as the basis for awarding all electoral votes to the majority’s candidate.

This was party politics gone wild, and helped solidify the modern “winner-take-all” two-party system at the expense of genuine local representation. Now, all of the rural districts in any given State may vote for one candidate, but have their vast majority of votes overridden because of one highly-populated urban center that distorts the popular vote in its favor—even by a few percent. For example, in the 1824 election in New York, the electoral votes were cast as follows: Adams 26, Crawford 5, Clay 4, and Jackson 1. In the following election of 1828, Adams won only 16 electors and Jackson 20. But after the popular vote method was installed in 1832, Jackson was able to receive all the electoral votes, whereas the loser, Henry Clay, received zero, even though he had gained 48% of the popular votes throughout the districts. This has continued the same since then. And the significant fact is not about who might have won or lost, it is that a tiny minority of voters even in just one district can swing a vast percentage of the electoral votes in all other districts combined. Thus we have had the rise of the “swing vote,” the power of minority-issues and special-interest groups, and the concentration of campaigning and strategizing in closely-divided but influential districts—all playing determinative roles in national elections. In this arrangement, Chicago can overpower all of Illinois, New York City speaks for the whole State of New York, Charlotte for all of North Carolina, and so on. Even in State where the rural population outnumbers any big city, a single special-interest issue like farm subsidies can swing the different in favor of liberals, progressives, statists, or other miscreants. It didn’t use to be this way.

The same issue of the power of special interests lies behind the change in the method of election of Senators, proposed by progressives in 1912–1913. Up until this time, Senators were selected by the State Congress, and expected to represent the interests of the State itself at the federal level. This was meant to ensure States’ legal rights against federal encroachments. But due to the influence of several factors, the 17th Amendment was passed mandating that Senators be elected by a popular vote. Thus, what was intended to be a protection of State’s rights has become subject to special interests in urban areas, and State’s rights are compromised by popular will in regard to national issues.

In addition to these issues of representation, the federal government has also discovered the means to entice State and local governments into accepting federal tyranny. This is where the “don’t take the cheese” warning features again. Federal agencies and bureaus by the multiple dozens, having multi-billion dollar budgets, use grants and handouts as ways to circumvent State and local governments and thus impose national control and national agendas on local communities—even without the approval or authorization of local populations or State governments. The basic lure is that of grants of federal money. But, with the grants of money come restrictions, regulations, or even massive legal codes imposed on entire regions of a State. Thus, most States and local governments willingly subject their people to federal regulations so they can increase their revenue at the expense of taxpayers and more likely the national debt.

And you can bet the federal government has figured out how effective this method is to corral and bridle local governments: just give the sugar cubes and simultaneously slip the bit into the mouth. Let me just illustrate the nature and the extent of the problem by using just once local agency—the police department—as an example. Local police currently have the option of applying for grants with the following federal Departments: Agriculture, Commerce, Education, Health and Human Services, Homeland Security, Housing and Urban Development, Justice, Labor, and Transportation. That’s nine agencies offering bribes for local government compliance to federal regulations and strings attached.

Within each one of the major departments, there exists numerous smaller agencies each with their own programs, budgets, and regulations to follow. For example, the Dept. of Justice alone breaks down into dozens of major constituent offices and service bureaus. One of them, the Associate Attorney General, governs several, one of which is the Office of Justice Programs. This Office itself includes about fifteen smaller offices, one of which is the National Institute of Justice. This Institute runs several programs, one of which is the DNA Initiative—a federally funded body that makes grants to local agencies for the purpose of DNA analysis in criminal investigations (up to $1 billion total). The Dept. of Justice itself has a budget of $27.7 billion. Part of the quid-pro-quo here is that the results of any DNA tests performed must be shared with a central national database governed by the FBI. It’s a national DNA registry.

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This is just one agency. Local public school districts receive on average about 10% percent of their funding from the federal government and about 45% from the State. Nearly all public schools and many private schools accept at least some degree of federal funding due to low-income families attending. Now, I don’t even believe in public schooling to begin with; I think it’s socialistic. But the very fact that local districts are compromised by accepting handouts should be alarming to those who disagree with me, and if they’re not, it really does prove my point about how socialistic the system is. And the fact that local schools receive over half of their funding from higher governmental agencies shows that they are stuck in those regulations and programs because they are dependent on them for the majority of their budget.

In these cases and many more, local leaders—sometimes unelected—subject local individuals to the regulations and standards of higher government bureaucracies in exchange for money. In essence, they literally sell out local sovereignty. Local control is a commodity to be bought and sold to the highest bidder, or multiple bidders. In these grant-related cases, the ultimate problem is not with the higher bodies, but with the local decision-makers to accept the money.

And the irony of this is, the federal bodies don’t really have any money to give out anyway. The money they grant is money that was created out of thin air by the Federal Reserve and loaned to the U.S. Treasury, and the legislature doles out portions of this funny money to federal agencies, and the agencies make the grants to local governments. So the federal government exchanges funny-money for local control. In essence, the federal government is buying local control for nothing; it costs them nothing. And local governments are giving up their powers for immoral, debased money. This goes on in every county in the United States today. It could end tomorrow with a city council or school board vote.

So how was freedom in local government lost? It was lost as early as the Constitution, which set a precedent for a continual series of federal government power grabs throughout American history. It was lost through manipulation of representation at that level, and most importantly, it is lost every day of every year as State and local government continue taking federal money, and local governments continue taking federal and State money, and subjecting their people to regulations and administrative laws of distant governments.

We have dug ourselves a huge hole, although in many ways we could say the hole was dug for us. Either way, we’re in a huge hole. Is there any possible way we could even begin to get out. Is there anything we can do to begin to restore sovereignty and control to the local level? Believe it or not, there are ways we can fight to restore freedom again, county by county. There are things to be done, and I will discuss them in the next section.

1. In The Complete Anti-Federalist, 7 vol., ed. by Herbert J. Storing (University of Chicago Press, 1981), 2.8.4. [↩]
2. “Address by A Plebeian,” in Herbert J. Storing (ed.), The Complete Anti-Federalist, 6:137. [↩]
3. “Address by A Plebeian,” in Herbert J. Storing (ed.), The Complete Anti-Federalist, 6:137. [↩]
4. Storing, 2:389–391. [↩]
5. “Address by A Plebeian,” in Herbert J. Storing (ed.), The Complete Anti-Federalist, 6:137. [↩]
6. Quoted in Herbert J. Storing (ed.), The Complete Anti-Federalist, 1:50. [↩]
7. Quoted in Herbert J. Storing (ed.), The Complete Anti-Federalist, 1:50. [↩]
8. “Essays by Candidus,” in The Complete Anti-Federalist, 4.9.13. [↩]
9. 17 U.S. 316 (1819). [↩]
10. James Madison to Joseph Gales, August 26, 1821, The Records of the Federal Convention of 1787, 3 vol., ed. by Max Farrand (New Haven: Yale University Press, 1911), 3:447. [↩]
11. “Essays by Candidus,” in The Complete Anti-Federalist, 7 vol., ed. by Herbert J. Storing (University of Chicago Press, 1981), 4.9.13. [↩]
12. “Essays by Candidus,” in The Complete Anti-Federalist, 4.9.15. [↩]