Yesterday, Crisis published a piece by Stephen M. Krason in which he argues that “the strong exertion of presidential power may be the best way after Obama to restore liberty and begin to mend the social fabric whose erosion has accelerated during his administration.” This appears to be part of an ongoing tendency, recently and controversially critiqued by John Zmirak, of Catholic cultural frustration expressing itself through appeals to authoritarianism. Krason, like other advocates of stronger centralized authority, rightfully points to the erosion of religious liberties through the triumphalist march of the “marriage equality” movement, the ongoing slaughter of millions of unborn children in the womb and an all-pervasive cultural disorder as evidence that something drastic needs to be done.
Yet just as America hosted an ideological conflict regarding the role of government in the economy between Jeffersonians and Hamiltonians, there is a similar conflict taking place regarding the Catholic response to the cultural collapse. Does the proper solution to this crisis lie in the build-up of executive authority and the centralization of decision-making power, or does it lie in a strenuous push in the opposite direction, towards a reassertion of checks and balances and increased local autonomy? Here I will make a case for the latter.
I will begin by noting that the system of checks and balances between the three branches of the federal government was not the only system of this kind intended by the founders. The 10th amendment of the Constitution establishes the states and the people as a check upon the federal government as a whole. Though the importance of the 10th amendment in this capacity is lost on many American political commentators today, it was Thomas Jefferson himself who considered this amendment to be the foundation of the Constitution, beyond which the federal government could not be justified in taking “a single step.”
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Many of the culture war issues we contend with today were never intended to be under the purview of the federal government. In fact, states were—and theoretically still are—perfectly within their constitutional right to establish churches and “legislate morality” in a thousand different ways. The 1st amendment only prohibits the federal government from respecting an establishment of religion. When the Supreme Court invoked Thomas Jefferson’s “wall of separation” phrase to justify the incorporation of the 1st amendment to the states via the 14th, it made a mockery of Jefferson’s political thought. Even the aggrieved Baptists of Danbury, Connecticut, did not expect Jefferson to disestablish its Congregationalist church. Their famous letter to him notes this explicitly: “Sir, we are sensible that the President of the United States is not the National Legislator and also sensible that the national government cannot destroy the laws of each State….”
It was precisely because Jefferson did not think of himself as a strong executive with the constitutional authority to impose his will on the nation that early American states were able to retain established churches and legislate morality through the majority will. The 10th amendment does not merely recognize state governments, after all, but the people too: this is an expression of popular sovereignty, the notion that political power originates with the people as a whole. It is through local and state legislatures that this power is exercised.
Finally, both Jefferson and James Madison, the “father of the Constitution”, believed it was within the legitimate power of the states to resist unconstitutional federal mandates. For Jefferson the doctrine of “nullification” was the mechanism by which states would resist; for Madison, it was a slightly different doctrine of “interposition.” The primary difference here is that nullification recognizes the legitimacy of any individual state rejecting a federal law, while interposition requires the cooperation of several states. Of course the political class and the academic legal establishment will argue that nullification is not only a legal dead letter, but guilty by association with men such as John C. Calhoun of promoting racism. Catholic libertarian Thomas Woods has made the convincing case for the constitutionality of nullification, and I don’t believe it is a coincidence that a Catholic has been at the tip of the vanguard on this important historical question.
At this point it will be conceded that it will be just as difficult for the states to truly reassert their original and authentic 10th amendment rights as it would be for Krason’s Cincinnatus to ascend to the Presidency and begin a unilateral moral reform of the nation. Ultimately we are considering the broad and general direction of our collective political efforts, which we hope will culminate in our maximum demands but will likely fall short. But there are good reasons to push in the direction of state’s rights as opposed to a stronger executive.
The first reason is that any powers assumed by one of our own will inevitably be assumed by one of our enemies. As soon as we set the precedents of granting one man the ability to overturn court decisions, defy Congress, and demand compliance on the strength of his rhetorical abilities as suggested by Krason, we lose any credibility we might have when attempting to resist the efforts of an amoral libertine who employs the same methods towards evil ends. This is arguably happening now under Obama, who enjoys more executive power because of the precedents set by his predecessor, George W. Bush; the next cycle would take us even further down this dark road. On the other hand, the states themselves can accomplish what Krason would like the powerful executive to accomplish, namely resisting the blatantly unconstitutional decrees of the judiciary and the immoral mandates of the federal government. This leads to a different kind of crisis, granted, but one that is less likely to end in bloodshed and more likely to appeal to sensibilities that our more reasonable opponents in the culture war also hold.
The second reason is that, painful as it is to admit, we on the natural law and social conservative side of the major cultural issues of our time are in a distinct minority. It is encouraging to note that the pro-life movement is younger and fresher than it has been in some time, and that half of the country identifies as pro-life. We may also note a growing awareness that the strength and integrity of the family is the key to long-term social and economic prosperity. A closer look at the numbers reveals, however, that many of these same people are willing to make exceptions for abortion that Catholics cannot make. Worse yet, support for “marriage equality” is growing. It is growing on the basis of outright lies and non-stop propaganda, but it is growing. Setting aside therefore the sheer strategic difficulties involved in running a successful campaign for our would-be Cincinnatus, even if he did manage to win, it is doubtful that he would have much of a mandate to impose our maximum demands. The state’s rights approach once again helps us avoid these problems, since support for natural law morality is concentrated locally; red-state America (and occasionally blue-state America) has voted time and again to ban gay marriage and place greater restrictions on abortion. All that is required is a resolve on the part of the states—which is being tested right now, in fact, in Texas, Kentucky, and elsewhere—to resist the morally corrupt federal judiciary.
Ultimately we must ask ourselves how far we are willing to go to reshape an entire nation of 310 million people into something radically different than what it currently is. We can all appreciate Krason’s urgent appeal: “In ordinary times, we can accept the interminable deliberation, plodding, excessive compromising, and willy-nilly decision-making of legislative bodies. It is different in times of crisis, where a civilization hangs in the balance and time is short.” But the long-term risks inherent in transferring vast amounts of power to one man are not worth whatever short-term gains such a measure may bring. The states and the people have the power to fight back without such a risky concentration of power; let us at least wait and see if they have the will to do so.