On April 15, Barry Friedman, Vice Dean and Jacob D. Fuchsberg Professor of Law, appeared on CNN’s Lou Dobbs Tonight as part of a lively panel discussion that started out addressing the tax day tea party protests across the nation and the growing movement by states to assert their sovereignty and ended with a debate about what to do about pirates attacking ships at sea. Also appearing on the program were Kevin Gutzman, professor of history at Western Connecticut State University, and Nathaniel Persily, Charles Keller Beekman Professor of Law and Political Science at Columbia Law School.
Friedman noted that even though the tea parties demonstrated that some people are angry about taxes, he thought data would show “that a lot of people are happy with the federal government having these funds. You have to ask how representative are these tea parties?”
“It’s strange that there is this intense opposition because people’s attitudes on taxation this year are actually more favorable than they were a year ago,” Persily said. “And what you’re seeing is that there’s real intense opposition as there historically has been in periods of American history both to the size of the federal government and the fact that it’s taking a lot of people’s money.”
The panel went on to discuss a resolution being considered by the Texas state legislature to declare its sovereignty. Nearly 30 other states are considering or have approved similar resolutions, according to the Tenth Amendment Center. “There have been a lot of these resolutions, and again, people in state legislatures are expressing unhappiness with what it is the national government is doing,” Friedman said. “It’s sort of ironic if you read the Tenth Amendment carefully. All it really says is everything the federal government doesn’t have or the people don’t have, the states get. So there’s something ironic about the states pushing their hands on the table saying ‘we want everything else that’s left over.’ But it certainly shows a deep sentiment. There’s always been two strains in American thought: one strain that wants to see a strong federal government and one strain that wants to see strong state authority, and they keep clashing.”
Gutzman said the root of the problem is essentially that people were sold a different Constitution from the one we live under today. “There was supposed to be a heavy element of federalism, and as you might expect, since the Constitution was written nearly immediately after the end of the Revolution, people still insisted that local elections for state legislatures should be the most important political activity,” he said. “What we’ve come to have now is a system in which most decisions are made from far away and elections at the local level count for virtually nothing.”
Persily mentioned that massive government expansion has occurred in the last eight years, not just since the recession. “It’s grown in size and spending and the intrusiveness in people’s lives,” he said. “But that is also a result of the fact that we’re fighting two wars, we’re fighting against pirates, we’re trying to get a handle on immigration, we’re trying to deal with the banking collapse, so there’s no surprise that the federal government is growing in capacity and power.”
After Persily’s mention of piracy, Gutzman referred to an age-old provision in the Constitution that in cases of such activity Congress can issue what are called letters of marque to empower private individuals to take action against pirates. “There’s been some discussion in Congress of doing this, and I think that’s one solution to the problem we have now," Gutzman said, noting that the practice has been prohibited by a convention since 1859. “It seems that these ships are mainly unarmed because of concerns about insurance and granting the captains letters of marque would enable them to take defensive measures.”
Friedman called this an intriguing idea but said that throughout the early wars in the country’s history when people were licensed to do this sort of thing, international incidents followed. “We have a history as well of privateers taking over ships as prizes, and then we’ve got an international problem on our hands, so it’s a tricky question.”