A Compound Republic

The compound republic—or federal republic based upon federalism—was a unique feature of the Founders’ constitutional handiwork. Two levels of government (state and federal) are supposed to check each other against potential abuses of power, the way that three, coequal branches of government do at the national level. Indeed, the federal or compound nature of the Republic amounts to vertical check and balance, similar to the horizontal checks and balances produced between legislative, judicial and executive branches, exercising their delegated powers at the top or center of American constitutional government.

The federal structure provides for a separation of powers—dual sovereign orbits of responsibility—between the federal and the state governments. Unfortunately, the Constitution is not explicit, in terms of how to resolve constitutional disputes. Although judicial review has been the primary mechanism for doing so since Marbury v. Madison (1803), the result of this method over time has been to strengthen the federal government at the expense of state governments. Of course, the purpose of a vertical check and balance in the first place, is to provide for safe and stable freedom of individuals and communities (themselves comprised of freely associating individuals). The emasculation of vertical check-and-balance and the cumulative increase in power at the federal level, now threatens the freedom of individuals and societies in the various states. Moreover, constitutional reforms are needed to shore up the power of state governments, as well as to protect the system from similar concentrations of power in the future.

According to William A. Niskanen, chairman of the Cato Institute and a former chairman of President Reagan’s Council of Economic Advisors, “the necessary change to make the federal government an effective guarantor of individual rights is to restore the federal protection of the privileges and immunities of all citizens, a protection formally guaranteed by the Fourteenth Amendment but eroded by later court decisions.” Ironically, this key protection was eroded, even as the Fourteenth Amendment was used to expand federal power in other ways. At the same time, Niskanen says, “the necessary changes to make the state governments an effective guarantor of individual rights are to provide formal constitutional authority (a) for a specified group of states to nullify an action by the federal government, . . . and maybe (b) for an individual state to secede from the federal union, preferably by two successive votes over some interval and subject to some rule for the allocation of the assets and liabilities of the federal government.”

Niskanen’s recommendations will no doubt provoke controversy, but it is high time for the debate to begin. We must engage this problem directly concerning the lopsided turn the Republic has taken since the New Deal—away from the sovereign power of states in their proper orbits. States must begin to act as a ballast or counterweight to the insatiable demands and incessant meddling of the federal government, which too often represents the narrow special interests of ideology and private bank accounts, as well as the disloyal subterfuge of internationalist do-gooders. American tradition demands these kinds of constructive recommendations, which build on The Federalist Papers, as well as the Kentucky and Virginia Resolves and the Civil War constitutional controversy. Indeed, although post-Civil War constitutional amendments abolished slavery and established national citizenship rights for persons regardless of race, no constitutional amendment ever abolished the right to secession. Moreover, the Declaration of Independence practically enshrines its principle, inherent in natural rights political philosophy.

In Federalist no. 28, Alexander Hamilton stated that it was an “axiom” of the American system of government “that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority.” Should the national government prove to be a danger, Hamilton expected the states “at once [to] adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different states; and unite their common forces for the protection of their common liberty.” Likewise, James Madison in Federalist no. 51, described how the federal government and the states “will control each other; at the same time each will be controlled by itself.” They would simply be aghast at the situation today, for we essentially have a dominant national, unitary government—which also defines its own powers. They would say it is a prescription for tyranny, if not tyranny outright. Hence, if constitutional procedures are not explicitly introduced to resolve the imbalance that now exists, i.e., to enable states the symmetrical ability to control the federal government in its proper orbit, then Niskanen predicts that gross “abuse of constitutional authority . . . can be constrained only by actions that [again] risk civil war.”