Why are we still talking about federalism in 2012? Wasn’t it mortally wounded with the passage of the 16th and the 17th Amendments? At least, that is what I hear a lot of Conservatives moaning about. Surprisingly, then, we are still talking about federalism. And, I trust, doing something about it. Here is a preliminary answer to the question about the fate of federalism: federalism is a conservative principle that over the last 100 years has restrained the development of the Administrative State. My mind wanders to the Progressives with their national prohibition of intoxicating liquors, FDR’s New Deal spiritual crusade against Mammon and “the money changers in the temple,” LBJ’s Great Society “war on poverty,” and our current national debate over individual health care coverage. These various Prohibitionists are very spiritual and remind me of the spiritual Colonialists and their love of good government to make us good people. Good government is also big government.
The closing of the XXX Olympic Games, in both French and English, reminds me of Charles Dickens who in the nineteenth century wrote famously about the Tale of Two Cities—Paris and London–separated by a channel of water. Paris was experiencing in 1789 the fervor of what Karl Marx was to later call “revolution in permanence,” and London was, following Edmund Burke, muddling through with reforms here and there. But the 2012 Olympics confirm that London, and not Paris, is the city of Europe. There are no longer two competing European tales.
But it would be wrong to conclude that the more sober tale of London has triumphed over the more intoxicating tale of Paris. It would be more accurate to say that the victory of London is the result of the ascendency of Parisian intoxication over the sobriety of the Londoner. What we witnessed at the closing of these games was not the display of good old-fashioned pomp and circumstance, or simply good old-fashioned British fun in the performance of Eric Idle’s famous Look on the Bright Side of Life skit. This was revolution in permanence. Or more delicately stated, Paris and London are now two cities with One Tale: democratic perfectionism.
How did the following clause of the Constitution–Article I, Section 8, clause 1— come into being? “The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the Unites States.” And how did the common defense clause and the general welfare clause make their way into the Preamble of the Constitution?
The general welfare clause makes its first appearance in Article III of the Articles of Confederation of 1781. The same is true for the common defense clause. These two clauses have been linked together from the very beginning in the quest for an expression of the appropriate role of the federal government.
This new conversation in Liberty Law Talk is with Gordon Lloyd, a scholar of the American founding. Lloyd focuses on the debates in the Constitutional Convention of 1787 and the state constitutional ratifying conventions of 1788 in order to better understand the compromises leading framers made to accommodate the institution of slavery in the early republic. Many, however, would dispute the term "compromises" and argue that it is an inaccurate understanding of the Constitution's relationship to slavery. Numerous historical arguments center on the protections the Constitution provided to slaveholders through the three-fifths clause, the fugitive slave clause, and the twenty-year…