Federalism: The Dumbest Idea in Modern Political History

Hallerian Musings on the Texas Border Crisis

The ongoing Texas Border Crisis has, so-to-say, shot an arrow into the heel of the American national Achilles, by activating a logically-insurmountable contradiction in the nation’s Constitutional structure- to wit, the doctrine of “dual sovereignty” according to which the Federal power is Sovereign, but the constituent members, the several States, are also Sovereign. This doctrine ordinarily seems innocuous, even salutary, a simple affirmation of the legitimacy of local subsidiary rights vis-a-vis the central power; but its absurdity, and its potential destructiveness, come out in full frontal view in the case of a State whose border, it so happens, is also the national border. Territorial borders being one of the crown jewels of sovereignty in the modern sense, this raises the question of just which one of the dual Sovereigns controls the dual border. Now, it is self-evidently true, as Haller reminds us, that two individual or collective actors cannot possibly lay claim to the same object. It turns out, contra a cherished Liberal myth- one that the Liberals themselves repudiate, the second it frustrates their ambitions and agendas- that sovereignty isn’t divisible after all, notwithstanding all Liberal pieties to the effect that “absolute power corrupts absolutely” and all that rubbish.

The only body competent, in the American Federal structure, to adjudicate disputes between the Fed and the several States- the Supreme Court of the United States- the other week has ruled (and quite reasonably, given the irremediably unreasonable Constitutional principles they have to work with) that, for the time being, the Biden administration may continue to destroy protective barriers erected by the administration of Governor Abbott, but that the latter may also continue to erect them (and why not- they’re both Sovereigns after all). And should the court later on decisively rule in favour of one party against the other, the manifest absurdity of such a decision will likely result in it being rejected by the party overruled (for nobody who possesses or claims a right of Sovereignty will hear of it being abrogated by a mere judicial body).

This leaves one of three means available for resolving disputes between Sovereigns: a), one party desists and acquiesces to the sacrifice of part of his right; b), the two of them negotiate an agreement more or less amiably; and c), they go to war. It thus comes as no surprise that Governor, in a written statement the other week, has asserted an inherent Sovereign right of war on the part of the erstwhile Republic of Texas, one never alienated upon its entry into the Union, and- significantly- one that it may legitimately exercise on grounds that President Biden has been derelict in his Constitutional duty to put the laws into execution, leaving Texas with no option but to resort to self-help. This is very strong language- as strong as it possibly could be in fact. For, in formal terms of the doctrine of “social contract” (a term explicitly invoked by the Governor) that undergirds the Union, it asserts that the authority of the Federal power has become void, leaving all parties in a juridical “state of Nature” or complete Sovereign independence vis-a-vis one another- one in which war alone can authoritatively settle disputes among actors who recognize no superior on Earth.

While neither Texan nor American, I ought to say that Governor Abbott is perfectly in the right both to make this assertion and, if push comes to shove, act on it, in response to a most urgently grave public crisis, a veritable man-caused disaster, one moreover caused intentionally by a derelict and contemptible Federal administration, and for the most sordid of reasons (cynical electioneering on the part of the Party; bizarre fantasies of extinguishing the White genome rampant in the insane asylums that pass for Universities nowadays; and finally, the allure of cheap labour for various mercenary actors). On the other hand, President Biden might with perfect justification under the terms of the existing Constitutional arrangement object that, in order for the cherished Liberal doctrine of the separation of legislative and executive power to be meaningful, and indeed, for the Federal power to exist at all other than on paper, the President must enjoy absolute executive fiat to enforce the laws as he alone sees fit; that citizens must be enjoined to an absolute duty to acquiesce to his executive-level decisions, all the more so in that they can always throw him out of office in the next election if they don’t like them; and that the political Federation can be legitimately be dissolved and the Federal government deemed destitute of lawful authority only by means of a Constitutional convention, and not the particular judgment of any constituent member, each of which forfeited its right to final judgment upon entry into the “social contract”.

Only time will tell if this cold civil war will turn hot; one only hopes (but doubts, given the Regime’s recent behaviour, ever-increasingly erratic) that President Biden and his Cabinet and counsellors will somehow come to their senses and shut the lid on this Pandora’s Box while it’s still possible. In the meanwhile, the whole affair brings political Federalism as known in North America under the light of critical scrutiny; it raises the question of just how and why the erstwhile Republic of Texas, having valiantly ascended to liberty, could possibly have then allowed herself to be assimilated into the Federal political machine, this Borg cube, this monster that seduces with promises it cannot possibly keep, that creates unsolvable problems in the course of trying to address ones easily solved. Whether formed by an agreement between individual or collective members, any State founded on a “social contract”, Haller already warned, and long before Annexation:

would not only be plagued with infinite problems, but would itself cause incalculably greater injustice, and in the final analysis, could not offer any more security than natural social relations.

He can scarcely even conceive that any Sovereign actor would ever entertain the self-contradictory proposition of compromising their own sovereignty- by definition, perfect liberty- in order to obtain putative “blessings of liberty” supposed to obtain by reducing themselves to so many subjects of a Federal super-State (for “dual sovereignty”, we have seen, is nonsense, something that can only be put into practice once the Federation collapses or just before it does). No doubt, small Republics such as Texas were seduced by some kind of appeal to strength in numbers, and warnings against the perils a small Republic faces from much larger, potentially belligerent foreign powers. But this reasoning, while superficially plausible, just doesn’t stand up to close scrutiny:

[W]hat motive could [Sovereign actors] have to join this kind of society, to sacrifice their most precious belonging, their most beautiful attribute, by which I mean their perfect liberty? Would it be the lure of greater security, whether against foreign enemies or one another, as certain philosophers would be tempted to show them on paper? But there are princes who might never have been wronged, and wouldn't see the utility in an association that on the contrary might even offend them. Another might answer that, with the help of his subjects, he is strong enough to defend himself, and that he wants no protection he didn't ask for. A third, although not as strong, counts on devoted friends in time of need, who would lend a hand, without demanding the sacrifice of his liberty, in exchange for a favour he could do for them in turn. A fourth might consent to forming a temporary alliance against the dominant power, one he could detach himself from once it was no longer useful; but never would he subject himself in any permanent way to a power that could just as easily be turned against him as deployed to his advantage. Finally, a fifth would prefer to bear a passing injustice, attach himself as a friend to a powerful neighbour, or even negotiate with his oppressor, than be governed by his equals and despoiled of his liberty in favour of an unknown. None would heed the siren's call; none has any use for a social contract. The strong can defend themselves and aren't lacking in auxiliaries. The weak find a resort, whether among their friends or in peace or protective treaties they conclude on their own; and if it turns out that they need a master after all, they prefer to submit to one of their own choosing, with whom they can deal with the most advantageously, that is to say, one from whom there is good to be hoped for or evil to fear, than a majority made up of their equals, or a leader appointed by that majority, and whom they must recognize in spite of themselves.

The last point is timely and poignant with respect to Texas, presently undergoing the especially perverse double-indignity of being forced to suffer, not just foreign invasion, not just domestic oppression, but a foreign invasion orchestrated by a domestic oppressor that is none other than the very Federal power that was supposed to protect her from invasion.

Of more general salience here is the observation that Sovereign actors can and do make use of informal and formal arrangements such as treaties to secure advantageous co-operation on the likes of defense, internal trade, and all the other benefits touted by Federation, and secure it without everybody having to move into the Big Brother house where they can squabble incessantly over everything. Present Canada-US relations are especially pertinent in this regard. In 1845, the fanatic O’Sullivan, writing in defense of the annexation of Texas, prophesied that an unseen teleology would propel the USA towards its “manifest destiny” of annexing every English-speaking territory on North American soil to its Federation, including what is now Canada. As luck would have it, though, the hidden hand of the Hegelian Absolute stopped its movement at the 49th parallel, and nobody on either side of it seriously discusses the two countries merging into one. And yet the two lands co-operate exceedingly closely, with various treaties on matters of mutual interest (most notably, free trade); they are generally on the same page in their foreign policy and tend to speak as one on the world stage; they even conduct cross-border law-enforcement operations, with American police operating on Canadian soil under the supervision of the RCMP; and they do it all without the Provinces of Canada, which already chafe at having to take orders from Ottawa, having to take them from Washington on the one hand, and without the Republicans in the USA having to worry about the creation of ten more Senate seats, most of which would end up going to the Democrats, on the other. Hence the two nations get to have their cake and eat it too.

Haller furthermore cautions that anyone looking for strength in numbers as a means of assuring their protection or accomplishing anything else they might be hard-pressed to achieve on their own might want to stop and think it all the way through; for:

A corporation, a union of human forces, is, to be sure, most powerful against an external enemy, or for carrying out a common endeavour; but if, as is highly likely, these same forces are deployed without rules and without checks, or turned on the very heart of society, they become more formidable than any other.

The Fed can’t very well protect you from hostile foreign powers unless it is that much more powerful than those powers still- and hence it’s very well possible that those who sign up may find that they’ve jumped out of one frying-pan into another, much bigger one:

If, with your fantastical ideas, you establish a tribunal for States, or a State of States above every private king and prince, with the design of preserving the peace, and securing for each the enjoyment of his property- who will protect us from this same tribunal, this master of the Earth? If it is without force, how can it protect; and if it has force enough to restrain, who would prevent its abuse? Who could say that it wouldn't be tyrannical itself in turn, that it would pronounce no unjust sentences whatsoever, wouldn't violate individual rights, prefer its private interests to the public good, and carry out all sorts of violence under the guise of justice? Fill human associations with as many written laws, constitutions, and structures as you like; dismember their power, or use what you call checks and balances in order to maintain their equilibrium; at most you'll alleviate the problem, but you'll never be able to destroy the law of nature: some individual or body will always be the most powerful, and wield supreme authority; and abuse becomes possible just as soon as there exists power and will enough to commit it. Constitutions and structures are then brought down, checks and balances set aside, and human laws respected even less than Divine law.

And sure enough, some two centuries later in America we find the Regime pronouncing plenty of unjust sentences, violating individual rights, preferring its private interests to the public good, and carrying out all sorts violence under the guise of justice, while Constitutions and structures do little, or nothing, against it all as human laws come to be respected even less than Divine laws- and both Congressional Democrats and President Biden himself publicly and repeatedly threaten to answer any attempt on the part of either the several States or private citizens to make use of the last-resort right of armed resistance guaranteed at positive law by the Second Amendment of the Constitution with air strikes, even nuclear weapons, and the rest of the terrible military capacity supposed to exist in order to Keep America Free and all that. Thus “dual sovereignty”, already meaningless in theory, becomes terrifyingly meaningless in practice, where, as per the law of Nature, the party with the most firepower alone is Sovereign, since its will is irresistible. In this respect, no less of a grand doyen of Liberalism than John Locke, one of the geniuses who first dreamed up modern Constitutional government, and coined the term, “federative power”, had to admit in spite of himself (in his celebrated Two Treatises of Government) that:

he being in a much worse condition, who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men

I could continue, but the foregoing remarks by themselves should suffice to prove that Federalism is absurd, unworkable, superfluous, useless, and above all, extremely dangerous to life and liberty. It may safely be designated as the dumbest political idea in modern history. Would that the States of Europe think better of their attempt to imitate North American folly, and, as Great Britain has already, quit the European Union while it’s still possible.