by Timothy B. Lewis of the Constitutional Freedom Foundation

The Federalist Papers

When the Constitution was finalized and sent to the national congress and the states for adoption, some states were thought to be linchpin states.  In other words, if any of them rejected it, the worry was that it would cause a stampede away from adoption.  One of those states was New York.

The influential Governor of New York was publicly opposed to adoption.^[i]  Alexander Hamilton, one of the New York delegates to the Constitutional Convention, took it upon himself to try to sway public opinion in New York in favor of adoption.  He started submitting articles to the New York papers under the pen name of "Publius."  This series of articles analyzed the language of the Constitution and indicated what it would do and not do.  Hamilton did not write all of the articles.  John Jay wrote five of them, James Madison about thirty, and Hamilton about fifty.^[ii]  

Nobody knew who the authors were initially but the articles generated much debate in New York and in the various other states where the articles were reprinted.  They were eventually compiled as a set and called "The Federalist Papers" or sometimes simply referred to as “The Federalist.”  The group of people who were in favor of adoption were called "Federalists" while those who were against passage were called "Anti-Federalists."

Concerning the perceived stature of the Federalist Papers, consider the following comments about them:

“The best commentary on the principles of government which has ever been written.”^[iii] Thomas Jefferson

“The Federalist...is a complete commentary on our Constitution, and is appealed by all parties in the question to which that instrument has given birth.  Its intrinsic value entitles it to its highest rank, and the part two of its authors performed in framing the Constitution put it very much in their power to explain the views with which it was framed.”^[iv] Chief Justice John Marshall speaking for a unanimous U. S. Supreme Court.

“The Federalist may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the body which prepared and the Authority which accepted it.”^[v] James Madison

The Principal Theme Of Those Papers: Limited Federal Authority

The Anti-federalists worried that the Constitution would create too strong of a central government and destroy state sovereignty.  In order to refute their arguments, the prime theme of the Federalist Papers was the notion of limited delegated authority to the federal government.  The Federalist Papers were, in effect, the intellectual sales pitch behind adoption and were quoted widely by the Supreme Court during our first 150 years of nationhood.  Such quoting, however, became much rarer from the New Deal period onwards as the Supreme Court veered sharply away from core precepts expounded in the Federalist.

Separation of Powers & Checks and Balances

Although it wasn’t until many years later that Lord Acton coined his oft-quoted phrase “Power tends to corrupt and absolute power corrupts absolutely,”^[vi] the framers of our Constitution believed the same thing and were very deliberate to avoid such problems in our country.  More than any government before, they took great pains to diffuse political power as much as possible in order to avoid despotism and tyranny. 

When we hear the terms “separation of powers” and “checks and balances,” most Americans today only think of the three branches of government at the federal level, namely, the executive, legislative, and judicial branches.  While such a conceptualization is true, it is incomplete, because it refers only to the horizontal aspect of those terms (that is, checks and balances & separation of powers within only one level of government).  These terms, however, also have a vertical aspect known as “federalism” or the distribution of various governing powers between the federal and state governments.  “Federalism” refers to a system in which the powers of government are shared between a central or national government (often referred to in our country as the “federal” government) and smaller constituent units (in our system, the “states”).

The quotations which follow indicate how some of the principal figures of the founding generation viewed the topic of federalism.

Thomas Jefferson:

“Our country is too large to have all its affairs directed by a single government....The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign nations.  Let the General Government be reduced to foreign concerns only...and our General Government may be reduced to a very simple organization, and a very inexpensive one; a few plain duties to be performed by a few servants.”^[vii]

“...[T]he way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to.  Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself.  It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best.  What has destroyed liberty and the rights of man in every government which has ever existed under the sun?  The generalizing and concentrating all cares and powers into one body....”^[viii]

James Madison:

"The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the state governments are numerous and indefinite."^[ix]

In Federalist #39 Madison said that the federal government’s “jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects.”^[x]

The Taxing & Spending Power Under The General Welfare Clause

Article 1, Section 8 of the Constitution delineates the powers delegated to the national Congress.  The entire section is but one long sentence.  Contained within it are both the “general welfare” and the “necessary and proper” clauses.  In Federalist #41 Madison said that the opponents of the constitution “fiercely attacked” the open-endedness of the power to tax and spend for the general welfare of the U.S.  They argued this amounted to an unlimited delegation of power.  Madison said that they were misconstruing that section.  He explained:

“...shall the more doubtful and indefinite terms [i.e. the terms “general welfare” and “necessary and proper”] be retained in their full extent, and the clear and precise expressions [i.e. the specific Art.1, Section 8 delineations of power] be denied any significance whatsoever?  For what purpose could the enumeration of particular powers be inserted if these and all others were meant to be included in the preceding general power?  Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.  But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity...”^[xi] 

He further said that if the specific delegations of authority do not limit the import of the prior general phrase regarding the “general welfare,” then it gives congress the “power to legislate in all cases whatsoever.”^[xii]  Any student of the history of those times would conclude that such a proposition would never have had any chance of passage if put to a specific vote.  Madison’s logic is quite sound here.

Jefferson agreed:

“...Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.”^[xiii]

“To consider the [general welfare clause]...as giving a distinct and independent power to do any act they [Congress] please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please. It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them.  It was intended to lace them up strictly within the enumerated powers....”^[xiv]

Commenting on the same “general welfare” term in ancient Roman law, Cicero observed:

"Though liberty is established by law, we must be vigilant, for liberty to enslave us is always present under that very liberty. Our Constitution speaks of the 'general welfare of the people.' Under that phrase all sorts of excesses can be employed by lusting tyrants to make us bondsmen."^[xv]

But contrary to all of the foregoing, the Supreme Court in modern times has said that the taxing and spending power is not limited to the specific powers delegated to Congress under Article 1, Section 8 of the Constitution.^[xvi]  Basically, today nobody even tries to call into question the federal government’s taxing and spending powers.  Through “strings money” it can buy virtually any state action it desires.  When the states stand in front of the federal government with their hands out-stretched and palms up, we can see a collective application of Hamilton’s observation that: “In the general course of human nature, a power over a man’s [state’s] subsistence amounts to a power over his [its peoples’] will.”^[xvii]

Whatever Happened To The 10^th Amendment?

When he later drafted the Bill of Rights, Madison felt inclined to drive home the idea of limited federal authority in the language of the 10th Amendment which reads:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Because it is part of the Constitution itself, this is the clearest and most authoritative declaration of federalism and the limited delegated powers concept.  Appropriately, it is found in the section whose purpose is to protect individuals from the federal government, namely, the Bill of Rights.  But as we will see later, the10^th Amendment has virtually been read out of the Constitution by the Supreme Court.

Jefferson observed:

"I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people' (10th Amendment). To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition."^[xviii]

Can anyone seriously deny that his prediction has come true?

Hamilton’s Views Were Different Than Some Might Think Today

Even Alexander Hamilton, who is credited with expansive visions of federal powers spoke in terms of strict limitation in describing the federal powers.  In Federalist #29 he pointed out that the “necessary and proper” clause allows the federal government to execute its declared powers.    But to avoid the implication that that clause allows the federal government to do anything it pleases, he made a case for being reasonable in interpreting the powers delegated to Congress.^[xix]  If Congress operated outside of its declared powers, the “necessary and proper” clause would not stand alone in validating the federal powers thus assumed.

Said Hamilton:

“...the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.  In the same manner the states have certain independent powers, in which their laws are supreme; for example, in making and executing laws concerning the punishment of certain crimes, such as murder, theft, etc., the states cannot be controlled.”^[xx]

Hamilton also wrote Federalist #78 which takes a very limited view of the role of the federal judiciary.  This will be discussed in more detail in the next article.

In Federalist #33 Hamilton clarifies that the “necessary and proper” clause was designed to effect the execution of the laws properly passed on the basis of the enumerated powers delegated to the federal government.  Thus, he said the phrase was “perfectly harmless.”^[xxi]  He said that laws passed pursuant to these delegated powers become the supreme law of the land but that those that were not passed pursuant to those delegated powers would not become the supreme law of the land.^[xxii]

In Federalist #32, he said:

“the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by [the Constitution], exclusively delegated to the United States.”^[xxiii]

“all authorities of which the states are not explicitly divested in favor of the union, remain with them in full vigor.”^[xxiv]

“[A]n attempt on the part of the national government to abridge them [the states] in the exercise of [their power to tax, and by implication, all of their other retained sovereign powers], would be a violent assumption of power, unwarranted by any article or clause of [the] Constitution.”^[xxv]

Today we have justified social welfare payments that now exceed our spending on national defense.  This is the exact reverse of what Hamilton envisioned.  He said the costs of non-military expenses of government “are insignificant in comparison with those which relate to national defense.”^[xxvi] (emphasis mine)

So even though the “Hamiltonian View” is often presented as the basis for arguing in favor of expansive federal powers, the foregoing quotations should give one pause to consider what he really believed. 

Chief Justice John Marshall’s View

Chief Justice John Marshall was easily the most prolific writer of opinions in the early years of the Supreme Court.  In asserting the Supreme Court’s power to nullify a legislative act as being unconstitutional he observed on behalf of a unanimous Supreme Court:

“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if those limits may, at any time, be passed by those intended to be restrained?...The Constitution is either a superior paramount law, unchangeable by ordinary means...[or it is an] absurd attempt, on the part of the people, to limit a power in its own nature illimitable....the framers of the constitution contemplated that instrument as a rule for the government of the court, as well as the legislature.”^[xxvii]

Unfortunately, the Supreme Court’s “interpretations” of our Constitution over the passing decades have effectively turned it into merely an absurd attempt, on the part of the people, to limit federal power which, as we have seen, appears to be “in its own nature illimitable.”

What Should Be Handled At The Federal Level And What At The State Level?

This issue has to be considered in both the positive and negative contexts.  Following the mandate of the 10^th Amendment, first we ask ourselves what positive powers were delegated to the federal government.  Then we ask if the Constitution prohibits a particular power at either the federal or state level -- or both. Finally, whatever has not been specifically delegated to the national Congress nor prohibited to the states, is reserved to the states as the ultimate default rule.

Let us consider the positive delegations of power to the federal government.  Generally speaking, those things which require that we speak and/or act with one unified national voice are prime candidates for federal control.  Among others, things that fit into this category would be declarations of war; making treaties with other countries; the coinage of money; regulating commerce between the states, Indian tribes and with foreign countries (remember the interstate commerce problems discussed in the last article); setting weights and measures; creating and protecting patents and copyrights; etc.  These are all found among the specific positive powers delegated to Congress under Article 1, Section 8.  

Then everything falling outside the list of the specific powers contained in Article 1, Section 8 is positively reserved to the states for their respective determinations unless it is negated by a specific prohibition somewhere within the constitutional text.

Article 1, Section 9 lists specific prohibitions against the federal government and Article 1, Section 10 lists specific prohibitions against the state governments. 

For example, consider “bills of attainder” (legislative, as opposed to judicial, pronouncements of criminal guilt) and “ex post facto laws” (laws making something that was legal when done, illegal retroactively).  Both the federal government and the states are prohibited from passing such laws.  Absent a constitutional amendment taking away such prohibitions, no level of government can constitutionally pass such laws no matter how high the democratic majorities are who want them. They have been taken out of the normal democratic realm.

Why would anything be specifically prohibited like that?  As one scans the lists of prohibitions including the two explained in the prior paragraph, at least two separate ideas come to mind.  Either, (1) the fundamental wrongness or injustice of something or (2) the propensity for some type of significant societal harm associated with a particular governmental act, was sufficiently perceived by a super-majority of the people as to justify creating a constitutional prohibition against it which would be immune to reversal by simple majority vote at either the federal or state level.  Successful  reversals could only properly come about through the formal super-majoritarian, nationwide, amendment process set forth in the Constitution.

So, for example, if a super-majority of Congress and the state legislatures across the nation perceived a fundamental wrongness and/or significant societal harm associated with gay marriages, passing a constitutional amendment restricting marriage to one man and one woman, would not violate either the spirit or the letter of the notion of federalism.  We would simply be adding something to the lists of prohibitions contained in Article 1, Sections 9 & 10.  Federalism is simply the sharing of powers and/or prohibitions between the federal and state governments.  And how that sharing ultimately shakes out, is only properly determined democratically through super-majority vote either through the original adoption of the Constitution itself or the formal amendment process. 

What would violate the notion of federalism, however, would be for the courts to make undemocratic changes in the sharing arrangement regarding powers and prohibitions rather than the people themselves. Unfortunately this the courts have done with reckless abandon.  And it is from an apprehension that they are about to put on a repeat performance in forcing the acceptance of gay marriage upon the states, that a constitutional amendment is being proposed to head them off at the pass.  

Why Are Some So Condescending Towards The Idea Of States’ Rights Under Federalism?

Why are some so condescending towards the idea of states’ rights under federalism?  First off, their tune would quickly change if the Supreme Court started ruling against their minority political positions rather than imposing them from the bench onto the majority of the people.  Were that the case they would quickly become converts and start clamoring very loudly for “states’ rights” in hopes that in some state, somewhere, their minority political views could bear sway.  But so long as the Supreme Court has been willing to impose those political views onto the whole nation through judicial activism, those on the winning side have heaped nothing but scorn and contempt upon the idea of states’ rights.

Imagine what would happen if the Supreme Court were to give every fetus a “constitutional right” to life making it impossible for any woman to ever have an abortion unless her life were seriously at stake. Were the shoe on the other foot and the pro-life/anti-abortion camp getting the court to undemocratically impose its political will on everybody (like the pro-choice/pro-abortion camp has), certainly the pro-abortion camp would be making all of the same philosophical arguments made in this article to argue against such a state of affairs – and they would be correct to do so.  But apparently they are willing to “look the other way” and ignore the violations of basic constitutional principles so long as they continue to get their way through such violations – justifying things under some sort of utilitarian “the ends justify the means” rationale.   But as discussed above, the courts should not be any sort of public policy makers favoring one side or the other – the battles over public policy should play out in democratic, rather than judicial venues.

Second, the argument is made that we cannot trust the states to make the correct calls – after all, didn’t some states allow slavery?  Yes, but that sounds like the argument “once wrong, always wrong,” which is never logically true.  The past does not always equal the future.

If people in the states were so profoundly and perpetually stupid, how come they were smart enough to send delegates to the Constitutional Convention and vote for the adoption of the Constitution in the first place creating the federal government?  If they were so incompetent, how could they have had enough foresight to demand as a condition of their adoption, that the Constitution itself be amended soon thereafter in order to add the Bill of Rights?  Remember from the prior article how Hamilton and the majority of the delegates to the Constitutional Convention thought that was a bad idea?  So the people in the states were smarter than even the drafters on this issue.

In arguing for the necessity of a Bill of Rights in the proposed federal Constitution, a New York Anti-Federalist writing under the pen name of Brutus observed that the same selfish human tendency of man to victimize and abuse his fellow man in a state of nature would likewise motivate him to take advantage of those over whom he is set to govern in a political capacity within organized societies.   Thus he argued that the federal Constitution should include express limitations and protections against such potential abuse and follow the prior lead of the states in their own constitutions.  Said he:

“...in all the constitutions of our own states; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them.”^[xxviii]

Consider too the issue of free speech.  Were there no protections of speech in the states before or after the adoption of the Bill of Rights?  Certainly not.  At least ten of the first fourteen states to adopt the federal Constitution, had laws guarantying freedom of expression.^[xxix]   Obviously, they themselves had already thought about the idea and wanted to make sure that similar limitations applied to the federal government.  So they were pretty smart after all.

Besides, if a few mistakes like slavery should be enough to strip the states of all decision-making and rule-making authority in perpetuity, what should be done when we find the federal government committing its own fair share of mistakes?  Should we strip it of all such authority too?  The result would be utter chaos. 

Since humans are involved in the process, no political arrangement can truthfully promise infallibility.  All we can hope to do is come up with an arrangement which optimizes our chances for success and provides the easiest methods of correction when errors are discovered.  Where are we to find such a system?  – our original constitutional framework, namely, federalism with a healthy dose of states’ rights.

What Dangers Do We Face When The Federal Courts Thwart Democracy and Create Constitutional Rights Regarding Divisive Political Issues?

Basically, when the Supreme Court creates a new constitutional right, it takes the matter out of the democratic realm.  It thwarts the normal democratic process of the people deciding for themselves from the bottom-up which liberties to give up and which to retain.  

In Lawrence v. Texas, the case that invalidated Texas’ anti-sodomy statute, the Supreme Court majority gave the following justifications for its actions:

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific.  They did not presume to have this insight.  They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.  As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”^[xxx]

“In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.  ‘History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.’”^[xxxi]

In other words, in their opinion the greatest political minds of our founding generation, and perhaps any generation, were deficient when it came to an understanding of the proper limits and extents of liberty, and it is up to a majority of the nine members of the current Supreme Court to correct their folly in a permanent fashion by conjuring up a new constitutional right with no resort whatsoever to the will of the people as a whole. 

Since the Court said that the “Texas statute furthers no legitimate state interest”^[xxxii] and serves “only to oppress,” they, in effect, concluded there is no fundamental moral law involved regarding homosexual conduct and that no negative social impacts can possibly occur because of it.  And they were so confident in their suppositions as to feel justified in second-guessing everybody past, present, and future in such a way as to make it virtually impossible for future generations to ever second-guess them on those judgments. 

After all, when one generation expresses its public policy preferences legislatively, it is relatively easy for future generations to democratically change those preferences by subsequent legislation, but not so when the Supreme Court expresses its own personal policy preferences in monolithic fashion through self-created “constitutional rights.”  Such “rights” can only be reversed by a constitutional amendment (which is virtually impossible to achieve) or by the Supreme Court reversing its own prior judgment on the matter, which also is highly improbable.  Thus, ordinary democracy is trumped, thwarted, and eliminated in the process.

Would somebody please point out where the Constitution sets up a government ruled by judicial oracles?  Again, except regarding those express prohibitions against the states set forth in the Constitution (the issue at hand not being one of them), the right to determine the appropriate tradeoffs between liberty and law rests with the people in their respective states and not with the U.S. Supreme Court.  While a majority of only nine individuals on the Supreme Court may conclude that unlimited liberty is the only way to go  -- like they did in Lawrence -- most Americans probably would not, but apparently their democratic judgment doesn’t matter any more since a majority of these nine unelected people say that their wills should permanently reign supreme on this matter.  That is usurpation, plain and simple.

According to the logic of the framers and the political structure they erected, whether one personally agrees or disagrees with the idea of a state law outlawing sodomy (or abortion, pornography, strip joints, etc.), Texans have the ultimate self-regulatory right under the 10^th Amendment to decide these matters for themselves.  It shouldn’t matter whether people outside of Texas agree or disagree with their decisions.  Were a majority of Texans to believe that any of their laws were unjustified and “served only to oppress,” they would certainly be free to repeal them through the normal democratic process within their own state.  But to have the U.S. Supreme Court do it for them -- and everybody else in the country – is constitutionally unjustifiable – at least, if the written Constitution really means anything other than bald judicial whim.

When legal/political error is created democratically, the losing side in the debate can afford to be magnanimous and play the role of “gracious losers” since they know the democratic political winds can change quite quickly and dramatically in their favor at any moment – especially if their arguments are sound. Their angers and frustrations are more easily manageable in that context than in one where the Supreme Court declares their side to be permanent losers in the contest by the creation of a virtually untouchable “constitutional right.”  Being on the losing end of that political battle tends to produce a deeper level of anger, frustration and resentment that can even change what once were gracious losers into revolutionaries.  Again, this is why, within the bounds set forth in the Constitution, the people themselves, and not judges, should be the ones who determine the appropriate balance between liberty and law at any particular point in time and at any particular place.

Federalism Allows For Many Different Experiments

Contrary to what the Modern Supreme Court has been doing as discussed above, our founders originally decided to solve Washington’s dilemma about which liberties to give up and which to retain by specifically delegating limited decision-making authority to the federal government and reserving all other authority to the people of the various states.  This makes sense since reasonable people can disagree about the appropriateness of making trade-offs between competing societal goals; they have different value systems; they assess the relative importance of things differently; they assess inter-connective cause-and-effect relationships differently regarding things that have happened in the past; they foresee the future consequences of things differently; and they differ as to whether only direct and immediate consequences should be considered in deciding what the law should be versus indirect and delayed consequences, etc. 

By allowing the states to democratically decide most matters for themselves, we allow many different experiments throughout the country, the results of which can be compared to see what works best.  Through this comparative process, public policy blunders can be caught and corrected relatively easily.  By contrast, at the federal level such blunders would be harder to detect and correct.  For one thing, when a one-size-fits-all approach is mandated from above, little contradictory evidence can be amassed to show the imprudence of that approach since no competing experiments are allowed to take place.  And massive institutional inertia at the national level is always very hard to change compared to the smaller inertial masses at the state level. 

Tyrannical government at the state or local level is far easier to cope with than tyranny at the federal level.  If corrective efforts fail, it is easy to flee a local tyranny but not a federal one.  In the former case, people can move around the country to whatever legal system suits them best without having to forfeit their treasured American citizenship.  By contrast, a federal tyranny is much harder to cope with – if it cannot be changed, then one has but three choices namely, (1) endure, (2) forfeit his or her American citizenship and emigrate, or (3) revolt.  In short, our founders’ political model of federalism was pure genius for allowing a very diverse nation to cope with deep-seated religious, philosophic, and political differences.

The Supreme Court has done great violence to this wonderful plan handed down to us from our forefathers. In determining its proper role in our Constitutional scheme, rather than merely paying lip-service, it should really take what it once said to heart:

“The question is not what power the federal government ought to have, but what powers in fact have been given by the people.”^[xxxiii]

The next article will explore more deeply, the proper role of the judiciary.

Religious Addendum:

Sometimes, like here, I will end an article discussing a religious point of view.  Please always keep in mind that these only represent my personal opinions, as with other aspects of my writings.  Since members of the Church of Jesus Christ of Latter-day Saints dominate the readership of Meridian Magazine, here I write to them, but others are free to listen in if they would like.  But please remember that I do not speak for my church – I am but one member trying to make sense of things in reconciling my religious and secular beliefs.

We believe that we are living in the last days.  Scriptural prophecies predict all sorts of political upheavals – wars and rumors of wars, and mens’ hearts failing them because of the various calamitous conditions of the times.  It would be nice if we could have enough positive influence from our religious efforts to turn things around culturally and morally, but our leaders have told us that the wickedness of our times approximates that of Sodom and Gomorrah, and that from here on out, things will not improve. 

That being the case, shouldn’t we embrace the notion of federalism?  By regaining our 10^th Amendment rights, we can at least guarantee a few islands of safety among a tempest-tossed sea of social and political turmoil that will probably engulf our nation and the world in the future, as the natural consequences of poor moral choices.

If we can get a marriage amendment passed nationally, great, but if not, then shouldn’t we at least be able to preserve our 10^th Amendment right to deny legal recognition of gay marriages state by state?  Shouldn’t our school children be entitled to sing Christmas songs in school without our school administrators cowering at the prospect of an ACLU lawsuit in federal court to stop the practice?  Shouldn’t we be able to decide whether or not a display of the Ten Commandments in our courthouses and other public buildings is appropriate?  Shouldn’t Salt Lake City be able to sell a portion of a street to a church under whatever terms the two parties can mutually agree without the ACLU trying to make some sort of constitutional issue out of it in the federal courts?  Under the traditional notion of federalism, all these rights, and more, belonged to us and were not justifiable issues for the federal courts.

Are public policy decisions by a democratic majority always right and beneficial?  No, but they carry the best chances for success.  King Mosiah recognized this when he transformed his society from a monarchy into a sort of democratically controlled judiciary in Mosiah 29.  Consider verses 26 & 27 in particular.  He predicted that most of the time, the majority will want what is right, but there are no guarantees.  He warns us that if it ever gets to the point where the majority wants that which is wrong, then natural calamitous consequences will follow.

He said that quite often a political minority might want that which is wrong, which is why they should not be allowed to be in control of the majority.  In our political scheme, that could easily be the judiciary which, unlike the judiciary in Mosiah’s day, is not democratically controlled.  Is it not possible that such a minority could push us to the brink of awesome judgments from God?  Of course the world would scoff as such a proposition, but how could anyone read the Bible or the Book of Mormon without seriously considering that question?

I suspect that as time goes by, religious faith of all kinds will be subjected to withering criticism and ridicule. Certainly the religious extremism behind world-wide terrorism will be used to argue that all religion in general is nothing but irrational myth.  But by the same token, couldn’t science in general be similarly tarnished by citing the mad-science practiced by Hitler?  Both attempts at generalization are irrational.  Exceptions should not be used to define the general rules.

If you want to consider general rules, consider the fact that religious people founded this country and gave us the most extraordinary and successful constitutional system of government and economic system the world has ever known.  Religious people are the ones that provide the moral backbone to our society, without which, things would turn horrific very quickly.

Before you decide to capitulate in the face of criticism and rebuke, examine the nature of your opposition.  If you consider things carefully, you will find that you are only being opposed by a conflicting faith.  In other words, it is not a matter of scientific fact versus religious faith, or rational truth versus religious myth, but rather, religious faith versus irreligious faith.  Don’t psych yourself out by making Goliath look bigger than he really is.

In my personal opinion, in most cases, but not all, it would probably not be wise to try to win political arguments in overtly unique religious terms.  Expressing broad religious faith is fine for we should never cede the religious ground, but citing the specific religious doctrines or scriptures of our faith, should probably be avoided.  For example, while I talked about King Mosiah to you who are of my faith, I don’t suspect it would get me very far to talk about him in the political realm to someone outside of our faith.  I use him to illustrate the fact that our faith is consistent with others concerning our common political interests of preserving our constitutional form of government and halting the moral decline that imperils our nation. 

The religious terms we use should be of the type that would naturally unite people of other religious faiths.  We all need each other in order to effect worthwhile political change.  All religions differ somewhat in specific doctrine, but their foundational bases are very much alike.  We should focus on our similarities, and not our differences, in forming political alliances.  The older I get, the more I appreciate the good people of other faiths.  I have learned many invaluable lessons from them in my study of these matters.  The vast majority of quotations I use in these articles come from religious people who were not or are not of my particular faith – but I can see that those of my faith owe them a tremendous debt of gratitude for helping us to likewise perceive very important philosophic truths relating to our constitutional form of government.  In the 12^th century words of Bernard de Chartres, “...we stand like dwarves on the shoulders of giants.”^[xxxiv]

While our religious faith should motivate us to become active participants in the political arena, once there, most of our arguments should be of the secular realm in order to be persuasive.  We should know our American history and heritage, and our founding legal, political, and economic philosophy, which is what I am trying to share with you in these articles.  We should also develop the ability to use common sense and perceive the relative strengths and weaknesses of any argument.  To do this, we should strive to see cause and effect relationships and perceive the probability of perverse incentives and unintended negative side effects creeping into any given policy or proposal.  We should not limit our consideration to the direct and immediate consequences of things, but should also consider probable indirect and delayed consequences as well.  We should not take things at face value, but ponder them deeply to discover the truth.  Often times what initially appears to be a devastating argument, evaporates upon cool, and calm, rational consideration done in private. 

The scriptures tell us to gather words of wisdom out of the best books.  Much has been written of incalculable worth.  Brigham Young told us that all truth belongs to the gospel of Jesus Christ and it is our responsibility to seek it out.  We should do so, however, always firmly tethered to our spiritual faith.  We should never sacrifice what we know spiritually, for what we do not know or understand rationally.  Make sure the proper default rule is in place before you venture out lest you become confused and falter.  Do not sell your spiritual birthright for a mess of pottage.

I approach this project with a fair amount of trepidation because being human, I know I am prone to err like everybody else.  I will try my best to avoid it in these articles, but if, per chance, you truly discover some, I sincerely apologize and beg forgiveness.  If my display of apples is otherwise fitly set, please feel free to remove any of the rotten ones you discover, but don’t use that as an excuse to discard the whole set.  Please look upon my efforts as simply something upon which you can build through your own personal study and consideration.

For more information visit The Constitutional Freedom Foundation website at: http://www.constitutionalfreedomfoundation.org/index.htm

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