A central problem of political theory has long been the question of “who watches the watchers?” This stems from the fact that it is generally assumed that it is necessary to grant the civil government a monopoly on coercive power in order to protect the subject population from domestic crime and from aggression by some other state. (Once the civil government obtains this monopoly, it is transformed into what we call a “state.”)
But once the state possesses this power, how can the state be tamed if it then abuses that power? This is a question that has long plagued theorists who have attempted to create constitutions and political systems that would somehow prevent the state’s abuses of power, or provide for some means of reining in the state and its powers, should abuses occur.
In the early years of American independence, this was a common concern.
In 1787, when the American Federalists were pushing for a new United States constitution, they promised (among other things) that the constitution would ensure the government would not grow to the point that it could violate the freedoms of Americans.
Many Americans, however, were skeptical that the federal government needed the vast new powers it was demanding. After all, the new constitution granted new taxation powers to the central government and provided the central government with a means of easily raising armies and wielding federal power against the people of the states themselves. “Don’t worry!” was the Federalist response to these fears. The Federalists pointed to elections and elected legislatures as guarantees against abuses of federal power. Hamilton, for example, claimed that no one in the federal government would wield any powers that were not specifically granted by the text of the new constitution.
Clearly, the Federalists were wrong. Federal power is today far, far larger than any eighteenth-century American could have imagined, and the American states have been reduced largely to administrative units of the federal government. Today, it would be absurd to claim that the federal government has never wielded or abused powers that were not specifically granted to it in the text of the constitution. The existence of the central bank, the spy powers of the Patriot Act, and the so-called “selective service” are only three examples.
Nor can we say that elections and Congressional votes have ever been a sufficient bulwark against federal power. Indeed, “Congress assembled” in Washington has done much to empower the federal government beyond its promised “limited” powers. After all, almost immediately following the adoption of the new constitution, the federal government erected a vast new system of federal courts, imposed new taxes, and imposed new “sedition” laws. By the end of the nineteenth century, the federal government was raising increasingly large standing armies for purposes of territorial conquest and the military subjugation of American member states. Today, the federal government grows with no limits on its power except its own internal legal “experts”—i.e., the federal Supreme Court—which are members of the same Washington elite as the rest of the central government.
Only Power Can Check Power
So why has the US Constitution failed to restrain federal power in any meaningful way? Beyond the fact that relatively few Americans now actually care about limiting federal power, the primary reason is there is no independent power that can check federal power. Allowing the federal government to function this way is like allowing a police department to investigate itself to determine if it has abused its power.
This was understood by countless Americans of the revolutionary generation. Thanks to the real-world experience of an eight-year war, and the well-known history of the English Civil War, many Americans knew that no piece of parchment and no legal framework ultimately is sufficient to restrain the prerogatives of a powerful state. In other words, these Americans understood the timeless political truth that once a state is resolved to aggress against its own people, only power can check power. Or, perhaps phrased more precisely: only de facto power can check power. Theoretical legal powers, written down on a piece of paper, mean little in the state of emergency.
This did not trouble the pro-centralization Federalists of the time who had convinced themselves that internal checks and balances could limit federal power. The Federalist Papers are filled with this sort of thing, although, it is unclear how much the Federalists themselves actually believed the claims. The Federalist Papers, after all, were primarily propaganda designed to convince people to support the new constitution. The authors were willing to say whatever it took to get their new constitution. So, they used many thousands of words concocting theories of how various parts of the federal government—all parts of the same government and all controlled by the same governing elite—would somehow limit its own powers.
But, in spite of all the talk about how Congress would never let the president get away with abusing federal power—an argument that is almost laughable in the twenty-first century—the end goal was a consolidated federal government that would be able to independently exercise vast new military and coercive powers.
Yet, many did not buy the argument that Americans “assembled” in Congress would somehow prevent the federal government from turning its power against Americans. The solution among the opponents of new centralized government—now known as “anti-federalists”—was to ensure that the states themselves would have the means of resisting federal power by force of arms. One of the most concise and animated summaries of this position comes from Patrick Henry at the Virginia ratifying convention in 1788. After being told that assemblies of delegates could address the problem of federal power, Henry responded:
The honorable gentleman who presides told us that, to prevent abuses in our government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone … Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all? You read of a riot act in a country which is called one of the freest in the world, where a few neighbors cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism. We may see such an act in America.
A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made? The attempt would be madness. You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? For, as arms are to be provided by Congress, they may or may not furnish them.
The answer for the early Americans was to oppose any federal standing army and to ensure that the states themselves had the means of defending themselves from federal incursion. These early Americans understood the phrase “only power can check power.”
The French Liberals in the Wake of the Revolution
Similar concerns were voiced within the French (classical) liberal school following the French Revolution. After the Terror, and the wreckage of Napoleon’s reign, and 25 years of warfare, the French liberals observed that the problem of the Revolution did not lie only with its disastrous ideology. An additional problem was the centralization of political power under the revolutionaries.
Although opponents of the state are often rather naive about the necessity of maintaining the independence of powers to defy the central state, the advocates of greater state power, on the other hand, have always understood this. Thus, those who want stronger states always, without fail, also want more political centralization.
The French revolutionaries advocated centralization of political power in France on an unprecedented scale. Yet, the revolutionaries also benefited from centuries of centralization that had already taken place under the ancien régime. As Rothbard notes in his history of political thought, the absolutist French state had worked to centralize power for the same reasons the French revolutionaries had done so: to facilitate a strong state and to enable the central state to more easily put down any who resisted.
By the time of the Revolution, this process was already well under way, as noted by Spruyt:
The [French] king explicitly sought to reduce political fragmentation of the French realm. He strove to make French politics ultimately subject to royal control and to act as the sole representative of the French kingdom in international affairs. … The many privileges that the aristocracy maintained until the French Revolution were hardly the same as the large political autonomy of the lords before the success of the Capetian kings. Before the Capetian consolidation, some great lords could call their territories regna—kingdoms in their own right; after the consolidation, they merely had privileges.
Note the importance of asserting the French state’s control over all international affairs. Without political consolidation, many of the nobility maintained their own means of military defense, and it is primarily due to this that we can call the realms of the nobility “regna.” This, of course, presented a very inconvenient reality to the central state: local institutions could resist, by force if necessary, the incursions of the central state.
Similarly, Alexis de Tocqueville noted:
During the aristocratic ages which preceded the present time, the sovereigns of Europe had been deprived of, or had relinquished, many of the rights inherent in their power. Not a hundred years ago, amongst the greater part of European nations, numerous private persons and corporations were sufficiently independent to administer justice, to raise and maintain troops, to levy taxes, and frequently even to make or interpret the law.
Again, we see one of the most important characteristics of this independence was the fact the local sovereigns, whom Tocqueville here tellingly refers to as “private persons,” were capable of military resistance, should the central state truly overstep its powers. This acted as a sizable check on the national monarchies’ attempts to centralize power.
Yet, by the time of the revolution this had largely been swept aside, and all that was left was a prize that had been prepared and nicely packaged for the revolutionaries to seize: a centralized state that had already made the regional powers impotent.
Thus, in the wake of the revolution, Tocqueville could see the mistake of centralization, as did the influential French liberal Benjamin Constant. Constant had, according to historian Henri Michel, coined the term “decentralization” (in French, “décentralisation”) which Michel notes: “It is under this name that it has entered the program of the [French] Liberal School, where it constitutes an essential article.”
After the revolution, Constant sought to preserve what was left of those local sentiments that provided some means of resistance. Constant, for example, lamented that the revolution had done much to break up the old regional allegiances, going so far as to break up the traditional French regions to conform to a new scheme of provinces developed by the new state. And he notes:
To build the edifice [of the new French state], they began by crushing and reducing to powder the materials they were to use. They almost designated cities and provinces with numbers, just as they designated legions and army corps, so great was their fear that sentiment might disturb the metaphysics of what they were establishing. … Today, admiration for absolute unity—a genuine admiration in a few narrow minds, feigned by many servile ones—is accepted as religious dogma by a multitude of assiduous echoes of every favored opinion.
As Ralph Raico shows, Constant’s response was to point to the essential importance of both regional and religious allegiance, hoping this would provide a foundation for resistance against the central power. “Patriotism” for Constant was necessarily local:
While patriotism exists only through a keen attachment to local interests, blind patriots have declared war on these interests. They have dried up this natural source of patriotism and sought to replace it with a contrived passion for an abstract entity, a general idea stripped of everything that strikes the imagination and everything that betrays reality.
Constant wasn’t saying all this only because he liked the diversity of local culture embodied in French regionalism, but because he saw “Local interests contain a seed of resistance that authority tolerates only reluctantly and hastens to eradicate.” Without this, there is no hope of fostering any true power that can counter the central power.
Frédéric Bastiat, ever the radical, took Constant’s view further, advocating the abolition of the French standing army altogether, and replacing it with armed private citizens.
This version of setting power against the central power is the natural progression of the Bastiat-Constant view of the state in which, as Michel writes “two rival, even hostile, principles appear and stand in opposition to one another: the state and the individual. Every triumph of one is a setback for the other.”
In this view, the individual and the state are never complementary, and naturally necessitate the preservation of non-state powers—religion, local institutions, and individuals—against the state. It is essentially a zero-sum game in which the coercive power of the state must be countered by constant effort to resist, by arms if necessary.
Thus, by the end of the nineteenth century, Bastiat’s disciple Gustave de Molinari ultimately concludes we must question the very idea of the state’s monopoly on coercion. Molinari therefore advocates for widespread secession as a counter to this monopoly.
We can contrast the late French liberal school—skeptical and realist, and not fooled by promises of legal bulwarks against state power—with the more naive Anglo and American view of “checks and balances” within the state apparatus itself. It was not always so. The American anti-federalists had the federal government’s number. They understood the ultimate end of federal consolidation and the unification of the state’s coercive power under a single federal government. The anti-federalists, lost, of course. The advocates of a “united America” won, and as with France after the revolution, Constant’s words are relevant when he says “admiration for absolute unity—a genuine admiration in a few narrow minds, feigned by many servile ones—is accepted as religious dogma.”
