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Monday, December 16, 2013

Is the U.S. an Empire?

My question to you, dear readers, is whether the United States is an "empire"? By this question, I do not mean vis-a-vis nations outside the United States, which question is addressed here, but as between the states and the federal government.

There is, first of all, the question of what is meant by "empire." Dictionary.com (based off the Random House Dictionary) defines "empire" as:
[A] group of nations or peoples ruled over by an emperor, empress, or other powerful sovereign or government: usually a territory of greater extent than a kingdom, as the former British Empire, French Empire, Russian Empire, Byzantine Empire, or Roman Empire.
Merriam-Webster similarly defines "empire" as:
[A] group of countries or regions that are controlled by one ruler or one government; especially : a group of countries ruled by an emperor or empress.
I would argue that the United States has, indeed, become an "empire." My thoughts on this are as follows:

When the Thirteen Colonies asserted their independence from Britain, they were independent states--that is, each was a separate "nation-state," as that term would be used today. Each of the states had its own government, had independent taxing authority, was able to muster its own troops, etc. However, in order to better coordinate the war against Britain, and to provide a more unified front for dealing with other nations, the Articles of Confederation were drafted in 1777 (most of the States would join in 1778, although it would be 1781 until all states joined). The Articles specifically provided that each member State was a separate sovereign government, i.e., "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated." Moreover, as the Wikipedia article notes:
Not being sovereign, it does not call the United States of America a "nation" or "government," but instead says, "The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever."
The Articles did not provide the Confederacy taxation authority, or any authority over trade. Again, from the Wikipedia article:
Congress had also been denied the power to regulate either foreign trade or interstate commerce and, as a result, all of the States maintained control over their own trade policies.
 This latter point became important later on, because the States would impose tariffs on goods from other States, and even ban or restrict the importation of certain goods. Spark Notes provides a succinct explanation:
The failure of a supreme authority to regulate interstate commerce became a problem because, although Congress was endowed with the sole authority to negotiate foreign treaties, it did not have the power to control trade between individual states and foreign countries. States were solely granted the right to levy imposts on foreign goods, and they freely interpreted this to mean goods from other countries as well as other states in the United States. States insisted on printing their own paper money and requiring it in kind for payment of tariffs of purchase of goods. Bordering states that shared the same rivers struggled to exert control by imposing competing tolls. In addition to a variety of different customs regulations and currencies, state governments sought commercial advantage over other states, and based their policies on what would bring their state the biggest rewards, not what was best for the common economic good. 
These interstate trade wars developed because states with clear commercial advantages abused their power. The disadvantaged states without ports could not import goods directly into their state and had to rely on neighboring states with ports. These neighboring states often charged to transport goods either into or out of the state. The only recourse for the states without ports was to retaliate by enacting their own tariffs on imported goods. Therefore, the consumer was caught up in a confusing and costly interstate battle resulting from interstate jealousies and a system of commerce that lacked uniformity. Consumers, farmers, and merchants bore the brunt of these policies, but appeals for change accomplished nothing.
 The answer, as we all know, was the creation via the United States Constitution of a federation-- "a political entity characterized by a union of partially self-governing states or regions under a central (federal) government. In a federation, the self-governing status of the component states, as well as the division of power between them and the central government, are typically constitutionally entrenched and may not be altered by a unilateral decision of either party, the states or the federal political body."

Even under the new Constitution, the individual States were considered co-sovereigns; the central government had been strengthened in only certain key areas. The most important of these changes was the right of the federal government to control interstate commerce (i.e., international trade between and among members of the federation) and trade with other nation-states. Again, to understand this provision, it is important to emphasize that each State was still a quasi-independent State with full control over its internal matters. Thus, control over interstate commerce was for the purpose of eliminating the ability of states to impose tariffs, tolls and other trade restrictions on goods brought from other states. Otherwise, the individual states retained control of commerce and trade within their borders. (This distinction can be still be found today in certain laws, such as those governing commercial trucking, where federal regulations and laws on commercial vehicles is generally only applicable to vehicles that cross state lines; to the extent they apply to vehicles only operating in a particular state, it is because that state has chosen to adopt and incorporate such regulations as a matter of state law).

Other changes were a limited ability to raise taxes and establish a federal judiciary. Notably, individual States were represented in Congress via the appointment of Senators by the state legislatures. States retained the right to raise and arm troops, and as to all domestic affairs within their borders.

Today, the states are quite definitely subsidiary to the Federal government. The Commerce Clause has been stretched to cover almost any economic activity that occurs in the United States, as well as anything that Congress believes is tangentially related to economic activity. In everything from race relations, to health, to self-defense, commercial transactions, credit, financial investments, etc., Congress has enacted laws interfering with the internal affairs of each State and its people. Similarly, Congress has used its taxing authority to prohibit and restrict rights that were originally outside of Federal powers and jurisdiction. I believe we've have reached the point where justification under the Constitution is mere legal fiction; Congress believes and acts as if it has general police powers allowing it to enact laws concerning any subject or issue. (See, for instance, Pelosi's incredulity in 2009 that anyone would question Congress' authority to pass ObamaCare). Even outright constitutional prohibitions on federal action have become subject only to those "reasonable restrictions" that a court may care to impose.

When you consider the original intent in forming the United States was that each of the member states was sovereign as to its own internal affairs, and compare it to the omnipresent federal government of today, is it not accurate to describe the United States as "a group of nations or peoples ruled over by ... [a] powerful sovereign or government"? Is there, in fact, any meaningful limitation on what the Federal government can regulate?

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