Sheridan: Con-Law

TO CENTRALIZE OR DECENTRALIZE, THAT IS THE QUESTION

When the thirteen colonies successfully rebelled, they needed to create a new central government to take the place of London.

Starting from scratch (if you don't count life under Congress governing by the Articles of Confederation), the former colonies, now states, drew up a plan that we call the U.S. Constitution (Ver. 1787). They included a provision to establish a seat of government someplace; they didn't say where. The new government (named "the United States of America") met in New York City in 1789, when it opened for business for the first time after ratification of the somewhat experimental plan (called "the Constitution"). Experimental because no nation had ever before tried operating under a written constitution, so far as is known.

The capital, or national headquarters, the home office, later switched to Philadelphia, and finally to Washington, D.C., a former swamp on a river, where it remains today, you'll be surprised to know, and no less oozing with snakes.

Do you think that those original thirteen states wanted to give a lot of power to this new national, or central government they'd just set up? Why would they want to do that? Each of them already did all that was needed to provide for their citizens. Each state provided cradle-to-grave laws and protection for its citizens.

What they couldn't provide was an army or navy to protect the whole group of states, but since they didn't trust armies anyway (armies could be used by tyrants to step on people; see the Redcoats), this was no big loss.

But there were French to the north, Indians on the western frontier who were backed by the French, Spaniards to the south in Florida and New Orleans, and of course, the British navy, formerly protector, now a hostile force (we weren't pay our debts, and the Brits weren't leaving their forts on our land).

Also there were the Barbary Pirates in the Mediterranean, where our ships liked to trade. So we rethought the bit about not having a navy fast.

We built six frigates, including the one you can visit in Boston, called USS Constitution, or "Old Ironsides." A wonderful new book about all this is "Six Frigates." I've loaned out my copy, so you'll have to Google the name or browse the bookstores. There's a lot about Conlaw in all the biographies of the founding fathers that are all over the bookstores in recent years, some very good, such as Ron Chernow's "Alexander Hamilton" and Arthur Schlesinger, Jr.'s "Age of Jackson" who wasn't exactly a founding father but did fight in the Revolution as a kid (he was captured). He became the first frontiersman president, the first president from the West (outside Nashville, where I visited his plantation, called the Hermitage, in April.) Jackson was the biggest slave-owner in Donaldson County, the home of Country Music and barbecued ribs. Washington was the biggest slave-owner in his corner of the country, too. as was Jefferson, Madison, and our other slave-driving founders. Imagine that.

But we were talking about setting up this new central government. The states wanted to give it as little power over themselves as possible. This is how it is when you have power. You want to keep it. You want to have the final say (sometimes called 'sovereignty' because this is what a sovereign, or king, or government has) over questions that come up under it.

The states wanted to keep all power local, except what they had to give up in order to establish a new national, or central, government that would work. Those, like Madison, and Alexander Hamilton, who saw the need to have a strong central government, were called Federalists, because they believed in confederating, joining together, to make a strong union. They adopted as a symbol of this the fasces or bound bundle of sticks which appears on the dollar bill as a bunch of arrows held in the eagle's claw.

The idea is that you can snap a single stick over your knee, but not a bundle of many bound sticks.

As Benjamin Franklin warned the rebelling founding fathers, "We must all hang together, or most assuredly, we shall all hang separately."

The Golden Gate Bridge is suspended from two thick cables consisting of a thousand strands of steel no thicker than a pencil, all bound together into a near solid mass by a wrapping of more steel wire. You can see a cutaway cross-section of this cable next to the gift shop on the San Francisco side. Conlaw, it's all around you, if you keep your eyes peeled and your mind open, which is what it takes to do Conlaw, at least in my experience.

But why are we talking about this ancient history of the founding which you and can't remember, since we weren't there and don't even read about, well, some of us, anyway. Maybe you don't, but I do.

Because the issue of whether we are better off having Washington decide important issues in our lives or whether we should have local control, or better yet, individual power to decide such things like whether to become a parent or how our lives will eventually end, never goes away.

Do you really want those bureaucrats in Washington deciding which medical procedures you should be able to get? Those crooks? The ones who take the graft from lobbyists for the drug companies? The tobacco lobby? Oil? Well, those are the folks who legislate on Medicare and whether doctors may perform abortions. That's pretty centralized, right? Cuts you and your state right out of the picture, doesn't it.

Among the founding fathers, and mothers, those who were opposed to granting too much power to the new central government were called the Anti-federalists. They refused to sign and opposed ratification. Some of them came over when their biggest objection, the lack of a Bill of Individual Rights, was agreed to be tacked on at the end. Madison was given the drafting task. He consulted all the state charters to see what individual rights were provided. He boiled them down to a dozen and presented it. Ten were adopted. Thus our Bill of Rights. One of his rejects was adopted a couple hundred years later as Amendment 27 (Congressional salaries). The idea is that no Act to raise the salaries of the legislators who passed it shall go into effect until after the next election of representatives. This gives you'n'me control over greedy buggers who vote themselves raises.

New York Times columnist David Brooks has a column, today, about Tennessee senator Fred Thompson, the movie actor-legislator. Where have I seen that before? Oh, I forgot, Ronald Reagan.

What is Thompson campaigning on? He's an anti-federalist who thinks power should reside in his state, not Washington. He's been around Washington long enough to know that it doesn't work. Too much selfish grandstanding, not enough brainwork for the good of the country.

The past isn't dead, it isn't even past.

See the column, below. I've emboldened the sexy parts on federalism.

Federalism. Sexy. Don't forget.

FEDERALISM HERE, IN IRAQ, AND YOUR LOCAL SCHOOL DISTRICT

Federalism questions are a big part of constitutional law, so it will be good to state what it is, especially as there's a constitutional convention occurring in Iraq and the Kurds, Shiites, and Sunnis are fighting over whether there will be a unitary state or series of parts, separate but linked.  Witnessing their problems teaches about our own.

Is the United States unitary or separate but linked?

It's a federation, meaning that it is separate but linked.  Well, that's how it started out, at least, but the Civil War tended to mush things together a bit, but not entirely.  We went from the United States are, to the United States is, from plural to singular as the result of that national experience.

The citizens of the thirteen colonies, we're told, saw themselves mainly as citizens of their states, and later regions, rather than as Americans, although the patriot, Patrick "Give me liberty or give me death" Henry, famously said he was an American, not just a Virginian.

Feelings may have been a bit mixed depending on what was happening at the moment.

A federation is an assemblage of individual units.  Federated Stores must be an amalgamation of retailers.

Consider a a school district that runs a dozen schools.  How is it best run, from central headquarters?  Or from each school.

Does each school choose it's own book publisher for each grade and course, or is this the responsibility of the central HQ?

Does each school establish its own hiring standards for teachers, with some certified and some not, or is this policy set by central HQ.

The issue of whether to centralize as many policies and as much decision-making power as possible or whether to farm out as much as possible, to de-centralize in other words, is a constantly recurring issue among cities and counties that operate many schools.

Corporate governance is concerned with home office vs. branch office issues.  The home office wants to maintain control over as much as it can until it becomes clear that the branches need more flexibility to respond to local conditions.

When the thirteen original states established a national central government called the United States of America, they were centralizing powers that they thought required to be handled by the national government, while holding back, or reserving, all others.  They specifically defined the powers they granted to the national government, see Art. I, Sec. 8, Clauses 1-18 and specifically reserved the rest in Amendment 10. 

Rights reserved to the states have been quite controversial especially in the days of slavery, when Southern states maintained that they had the right to control the ownership of "property," meaning the purported ownership of people, as a traditional states right, a reserved right.  It took a civil war to disabuse the South of that notion.

States rights, which used to be a political code word for slavery, or "our Southern way of life," has been resurrected in other areas, thankfully, under Chief Justice William H. Rehnquist, but how much vitality it retains is the subject of dispute.  The more that states rights are recognized vis-a-vis the central government, the more the nation's power is narrowed, as Ninth Circuit Judge John T. Noonan, Jr. puts it in his excellent little volume called "Narrowing the Nation's Power, The Supreme Court Sides with the States" (U.C. Press, 2002).

In light of the above, it will be interesting to see how the Iraqis deal with seeking to unite the disparate components of their society under one umbrella, unified or decentralized, unified or a federated state of separate political components.

That's the question that has produced yet another delay, as there seems to be little agreement as to this fundamental issue.  The outcome controls who controls the distribution of the oil money, as Iraq sits above a sea of oil and no one wishes to relinquish control over oil in their area. 

Religion counts, but oil money counts, too.  You got that here.