TheDC interview with libertarian talk radio host Jason Lewis

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Jason Lewis is the author of the new book,Power Divided is Power Checked: The Argument for States’ Rights.

A veritable encyclopedia of constitutional history, Lewis is the host of the syndicated talk radio program “The Jason Lewis Show.” In his new book, Lewis makes the historical, and obsessively footnoted, case for states’ rights.

Lewis recently spoke with The Daily Caller about his new book and other topics of interest:

The Daily Caller (TheDC): Why did you decide to write this book?

Jason Lewis (JL): Well I’ve been interested in federalism going all the way back to Reagan’s call for a New Federalism, but even before that. I feel like it’s in the conservative DNA, or maybe the libertarian DNA, some libertarians think like that, some do not, I happen to be one. But it’s sort of a reflection of the founders’ belief or skepticism of consolidated government. If you go back and look at the time of the drafting of the Constitution and the correspondence between Jefferson and Adams and all of them, it’s all about the fear of what they called consolidated government, or what we call big government these days. They were afraid of a far away central bureaucracy, like the monarchy running roughshod, over primarily local affairs, which had morphed into states and colonies of course in America.

I think [federalism is] sort of a hallmark of what it means to be in favor of limited government. In the last few years, I think it’s reached, sort of a tipping point in America. Obviously with the president’s health care plan really stretching the Commerce Clause and doing things that have never been done before, and the EPA and you can go right down the list to education, energy, as to the degradation of states’ rights.

Fundamentally, [federalism] is about a safety valve, the idea that it is much easier to control government — which is a monopoly of force — if you have smaller jurisdictions. We talk about checks and balances in civics class and the horizontal checks and balances, but the best check and balance is vertical, between the federal government and the states. If you are really concerned about checking an impotent government, limit its jurisdictional power, it’s almost self evident.

TheDC: So I guess your idea would be extreme federalism, allowing secession to actually be a legal tool for liberty?

JL: Well that’s what people think it is, and that’s kind of the kicker in my book, so I had some fun with that, but indeed, that was also the very essence of our framework, the idea of secession. If you think about it, and take out the ‘s’ word, and take out — it’s not easy to do — but if you take out history for a moment, and you say, “What are we talking about?” We’re talking about whether associations between human beings should be voluntary. Whether you and I should be free to associate, and if one of us don’t want to talk to the another, you walk away. It’s no different for states, it’s no different for countries. Should human beings associate freely? Should all associations be voluntary or should they be coerced? And if you believe in the latter, you’re talking about tyranny, so, none of the colonies, and I mean none of the colonies, including the Northern colonies would have signed onto the Constitution in 1787 in what became the Principles of ’89 after it was put into effect. None of them would have signed on if it had been a permanent contact.

TheDC: How have we gotten so far away from the original idea of voluntary unity?

JL: Well, the Civil War, primarily. That was the fundamental watershed moment. As I write in the book, in the first chapter, and there have been other scholars who have already looked into this, I quote them in the book. What happened, in the wake of the Civil War, Lincoln had a bit of a Hobson’s choice, he could either save the Union or save the Constitution as the framers wrote it, and he chose the former. Now, I could be very critical, I’m not going to be, who knows what anyone would do faced with that circumstance, but let’s be honest and let’s be clear about it, when Lincoln said in his inaugural that the compact is permanent, and that anyone who wanted to leave were engaged in rebellion, and that would not be tolerated, it was a sea change. At that point when the federal government decided to use force to prevent secession, the entire complexion of our republican architecture changed permanently — because now, you know before, the ultimate check on the federal government was, “If we don’t like what you’re doing, we’re out of here,” and that would reign in the federal government. Now, if you say, “we don’t like what you’re doing, we really can’t leave because you’re gonna start a war against us,” that’s pretty much the end of states’ rights.

TheDC: So do you think Lincoln was one of our first big government presidents?

JL: Yea, but I don’t know if he was the first, I mean Andrew Jackson. To be perfectly fair the first colonies that wanted to secede were the New England Federalists, over Jefferson’s Louisiana Purchase, because they thought he was expanding the power of the South. And so, they had threatened secession, which is ironic because secession is seen as a Southern thing, the very first states that threatened secession in the United States were the New England states. But Lincoln, yeah, Lincoln set the mark.

Everybody complains about Bush ‘43’s military tribunals and the cropping of civil rights. He doesn’t hold a candle to what Lincoln did: suspending the rights of habeas corpus, jailing Northern newspaper men who sympathized with the South. What’s ironic about it too is that Lincoln told the South, time and time again, “I’m not going to disrupt slavery, I don’t have a problem with it.” It wasn’t until 1863 really that it became an issue, an issue for Lincoln anyway. And remember there were the black codes, there was bigotry in the North, but the rallying cry was secession. There were a number of Northern generals and Sherman et al. who said, “I don’t have a problem with slavery, but I’m not gonna tolerate secession.”

TheDC: There are many who say the Civil War was only about slavery, and that speaking about states’ rights is just a way to sanitize the idea, thereby demonizing those who promote states’ rights. How can you disassociate the idea of states’ rights from slavery?

JL: Yeah, it really has and I think that’s been by design, by people who are advocating the national government instead of a federal government, but the best way to do it is the notion that federalism had nothing to do with slavery at the time of the ratification, because nobody was talking about it, nobody was gonna eradicate it. It had everything to do with limiting the power of a new central government that the founders were very wary of, and as I mentioned, the first states to threaten secession were the New England states. So if you take a look at the idea of states’ rights having very little to do with slavery, then you said, “okay what was the reason?” And the reason was, that — “look, we’re getting the new central government, this power, this monopoly on force, we’re not going to give it to them unlimited. We’re going to limit their jurisdiction, we’re going to give them specific enumerated powers and they can’t step beyond that”….So all of those things were designed to limit the power the framers were very wary of, it had nothing to do with slavery at all.

TheDC: Well so do you think that the Civil War was a war worth fighting?

JL: Well there are those who advocated, at the time, for emancipated compensation. And that was the idea — and this had happened in other countries across that globe — where, “alright, we want to eradicate slavery, it’s a horrific institution, nobody disputes that, but, do we really wanna shed six hundred thousand lives in America?” So the idea was, let’s pay the Southern slave owners money to give up the slaves, and they would end the institution, and that would be it. Now, people say, “that’s a little bit odious, you’re paying people to do the right thing.” Well is it really more odious than six hundred thousand lives? Lincoln actually presented it to his cabinet late in the war, but they rejected it, and Lincoln had the opportunity to go, move forward on it earlier in the war, but he never did, so it’s kinda hard to say. As I said, it was a bit of a Hobson’s choice for Lincoln, he didn’t want to be the president to preside over the breaking up of the union.

The other aspect to all of this people need to understand is, it wasn’t just the idea that the federal government would now go to war against any state, once that was the precedent, then they would use the Civil War amendments, primarily the 14th Amendment, to do anything they wanted to do with states. It’s one thing if you had power in the hands of noble people, it may not have been a problem, just a little bit like, what’s a good jurist? A good jurist has self-restraint, but we don’t have good jurists any more, we had judges who have no idea of self-restraint and so they legislate. But had the ensuing members of Congress, had the ensuing courts had not used the 14th Amendment, the due process clause, primarily, the interstate commerce clause, the 9th Amendment, had they not used all of this to increase the power of the states — really coming to a head in the Progressive Era from the Roosevelt cousins really, Theodore to Franklin — we wouldn’t be in the situation we’re in today. But they did use it, and I think they used it, subconsciously knowing that, “look, what are the states gonna do, leave? Well, they’re not gonna leave.”

TheDC: When you discuss lack of judicial restraint, what do you think has been the worst case of judicial overreach so far?

JL: Well as far as an era is concerned it has to be the New Deal, the Revolution of ’37, as one legal scholar put it, where the Supreme Court had struck down most of the New Deal, a couple of times prior to the 1930s, simply, under the concepts I talk about in the book — if it’s not in the Constitution, the federal government can’t do it. If we can’t find where the National Industrial Recovery Act is in the Constitution, you can’t do it.

There was a famous case called Schechter about a poultry, where the federal government came in and said, “You’ve gotta undertake these labor laws, these minimum wages, these hours,” and they said, “we’re a local poultry, we get our meat and we sell it to local people, how are you coming in here and regulating us?” And the court said, “you know what, you’re right,” and they shut down the New Deal regulations. Well, along comes the same issue with the West Coast Hotel vs. Parrish case and, this is when Franklin Roosevelt said, “you know what you guys, if you don’t pass the New Deal, Social Security and the National Recovery Act, National Labor Relations — all of this stuff, that it was an unprecedented intervention in private affairs in within the states — “if you don’t pass it off, I think I just might add four new members to the Supreme Court, so I’m gonna get it through one way or another.”

At that point, one of the justices, Justice Roberts, who had voted against the New Deal prior to that switch, in the West Coast case upheld that regulation. It was called the switch in time that saved nine. That was the end of it.

And that followed with Darby and the federal minimum wage and then finally you had Wickard, the one everybody is talking about now, with the homegrown wheat situation — where a guy was told he couldn’t grow wheat for his own consumption. When he asked why, the courts said, “well that’s interstate commerce.” He said, “well I didn’t engage in interstate commerce, I’m growing it on my property, and I’m eating it.” And the courts said, “well we think it affects interstate commerce.” And that was the end of the interstate commerce clause. That is really what’s so germane right now in, in Obamacare. Even if you accept the elastic commerce clause, where they can regulate anything that affects interstate commerce, not buying health insurance is not commerce.

TheDC: Well do you think that Obama’s health care law is still gonna be implemented?

JL: No, I think it’s gonna go down 5-4 in the Supreme Court.

TheDC: On your show and in your book, you take special aim against environmentalists. Explain your contention that environmentalism is “one of the most pronounced federal intrusions into our daily lives.”

JL: Yeah, it is, they really over do it. There’s an old phrase, “war is the health of the state,” and the idea that, when the government can get people scared, and war is the obvious example, that they’ll do things they wouldn’t normally do, like give up their liberty and give up their money. They’ll do all sorts of things. So, if you notice, every time the left pushes for more regulation, it’s always phrased as a war, the War on Poverty, the War on Illiteracy, a War on Global Warming, and they do it for a reason. They want to get people afraid. They want to create a manufactured crisis. And the problem with environmentalism isn’t that we all don’t want clean air and clean water — the untold story is that we have it, of course — but the problem is they create sort of a hysteria so that they can reach in further and it has very little to do with environmentalism. It has to do with expanding a massive state of power.

You know, I remember the Kangaroo Rat in California, you remember that one under the Endangered Species Act? The mouse was indigenous only to California, it wasn’t in any other state. And yet, under the Endangered Species Act, the federal government was telling farmers what they could do with their property. Well, where did they get that power? It’s not interstate commerce for crying out loud. So if California wants to do it, that’s one thing, let California do it — though it’s still ill advised.

TheDC: In your book you propose a new amendment to the Constitution, the 28th Amendment, which as I understand would basically prohibit the federal government from interfering in state matters unless explicitly allowed in the Constitution. How would it work and do you think we’d ever see it implemented?

JL: I doubt it. I was just thinking out loud there. However, short of that, you are probably not going to see — unless we get a new awakening of the principles, and this is where, where Obamacare could set the stage for a federalism renaissance if the Supreme Court rules against it, and judges rediscover the limits of the federal government. Short of that, you’ve just got so much jurisprudence, and so much precedence going back to the Due Process Clause. I talk about that in the book, where the 14th Amendment says, no state can deprive anybody of due process, or deprive anyone of the life, liberty or property without due process. That is procedural due process. If I arrest you I can’t take away your life or liberty, put you in jail without giving you the common law rights that defendants have had in our courts for centuries. It has nothing to do with the substance of legislation. It has nothing to do with what the law says. The law might say you cannot grow pot, so okay, if I arrest you for pot you need to have a lawyer available, you don’t have to testify against yourself. You have all those due process rights which are procedural in nature.

Well the due process law going all the way back to really the Lochner era in the first part of the 20th century, the courts just willy nilly decided to invent in something called substantive due process. They said, “well not only are you guaranteed procedural due process, but we think the substance of the law itself can violate due process.” That due process clause, where there is a substantive liberty interest in the due process clause, has been used to strike down state legislation on welder time limits, religious displays, a host of crime and punishment issues from abortion to medical marijuana to assisted suicide. A ton of things that squarely fall under the state’s police power. So how do you go back and rediscover the true intention of the due process clause? The liberals will say, “well it has been adjudicated this way for a hundred years and it would be activist now to change it.”

What I put in the 28th Amendment is that the due process clause, as Hamilton said, applies to procedure, not legislation. The interstate commerce clause must regulate something that is truly interstate activity, not just affecting activity because that could be anything. It gets back to our first point, the kicker, that should any state chose to legally leave the union, the federal government will not interfere. That is the ultimate safety valve, the ultimate check. An it goes back to the fundamental point, should associations between a free people be voluntary? When you ask that question, there are only two answers. If you say yes, then people have a right to leave an association. If you say no, well, so you are going to make me associate with someone, then we know what you are.