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Volume 7, Issue 37: September 12, 2005

  1. Rehnquist's Federalist Legacy
  2. The Failure of States
  3. Despite U.S. Claims, Iraqi Insurgency Still Strong

1) Rehnquist's Federalist Legacy

The late Chief Justice William Rehnquist should be remembered not for his administrative skills or diplomatic demeanor, but for his advocacy of federalism, according to Research Fellow William J. Watkins Jr.

"At least since the New Deal, the Tenth Amendment had been edited out of the Constitution by various court decisions," Watkins writes in a new op-ed. "Lamenting these years of neglect, Rehnquist made clear early on that he intended to revive the Tenth Amendment as a restriction on congressional power."

The Tenth Amendment, a linchpin of the federalism of the U.S. Constitution, states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Rehnquist's relative affinity for the Tenth Amendment helped revive federalism in some of the landmark cases of his career.

In the 1976 case of National League of Cities v. Usery, Rehnquist wrote the majority opinion, arguing that a congressional extension of the minimum wage and maximum hour requirements of the Fair Labor Standard Act would "significantly alter or displace the States' abilities to structure employer-employee relationships." In the decade that followed, the Court's composition had changed, and the ruling was reversed in a 1985 decision. But Rehnquist persisted.

In 1995, for example, the Rehnquist Court ruled in United States v. Lopez that the Commerce Clause could not justify a federal law that prohibited the possession of firearms near school premises. "The Constitution delegated to Congress only few and defined powers, the Court announced, and these constitutional limits were transgressed by passing a criminal statute and claiming it was a commercial regulation," writes Watkins. Using the same reasoning, the Court under Rehnquist struck down several federal statutes imposing unfunded mandates on the states throughout the 1990s.

"Incrementally, the Rehnquist Court set about limiting federal power; returning true self-government to the state and local level," Watkins continues. "With the passing of Rehnquist, President Bush has nominated Roberts for chief justice, a jurist who fits nicely into the Rehnquist mold. The President now has a second opportunity to appoint a justice who can continue or end the Rehnquist Court's federalism revolution."

See "William Rehnquist's Federalist Legacy," by William J. Wakins Jr.
"El Legado Federalista de William Rehnquist"

Also see:

"Raiching the Constitution over the Coals," by William J. Watkins Jr. (CHRONICLES MAGAZINE, 8/2/05)
"Echando a la Constitución a las Brasas"

"John G. Roberts and the New Federalism," by William J. Watkins Jr. (7/25/05)

To purchase RECLAIMING THE AMERICAN REVOLUTION: The Kentucky and Virginia Resolutions and Their Legacy, by William J. Watkins, Jr., see


2) The Failure of States

An index of "failed states," published recently by FOREIGN POLICY and the Fund for Peace, lists 60 countries its authors believe pose a risk to world security. The list has kicked off an interesting debate about its country rankings and about the definition of a failed state (the study's authors equate state failure with the absence of state power), but they and some of their critics have missed the forest for the trees.

"It is true that these manifestations of state failure are present in many of the countries that make up the list," writes Senior Fellow Alvaro Vargas Llosa in a new op-ed. "But these failures constitute symptoms rather than root causes. Symptoms of what? Essentially, symptoms of too much concentrated power."

The list's worst failed states -- such countries as the Ivory Coast, the Democratic Republic of Congo, Rwanda, Burundi, Bangladesh, Haiti, Cuba, and Venezuela -- are failures because the central government is a winner-take-all system that has politicized society, often polarizing it into competing violent factions.

"By overextending their reach at various stages of their recent history, the political apparatuses of these countries have caused factional or tribal disputes, often compounded by international armies intervening on behalf of this or that group," continues Vargas Llosa, who directs the Independent Institute's Center on Global Prosperity. "The origin of the breakdown of law and order has often been the stratification of society into an oligarchy at the top and a destitute majority at the bottom by whatever party, tribe or faction was able to take control of the state."

Unfortunately, this lesson seems to be lost on many.

Concludes Vargas Llosa: "FOREIGN POLICY is right to warn that '2 billion people live in insecure states.' However, it makes one's hair stand on end to hear the statement that world leaders, who once worried about who was amassing power, now worry 'about the absence of it.' The issue is not the absence of state power, but rather, the absence of individual-based rights, protecting people from the authoritarian tool used by successive factions over time to control them: too much government."

See "The Failure of States," by Alvaro Vargas Llosa
"Los Estados Fallidos"

For purchase LIBERTY FOR LATIN AMERICA: How to Undo Five-Hundred Years of State Oppression, by Alvaro Vargas Llosa, see

Center on Global Prosperity (Alvaro Vargas Llosa, director)


3) Despite U.S. Claims, Iraqi Insurgency Still Strong

U.S. and Iraqi military leaders proclaimed victory last week against Iraqi insurgents in the Sarai neighborhood of the city of Tall Afar -- a suspected logistics center for the Iraqi insurgents. But it was a victory in name only. By the time the 5,000 U.S. and Iraqi troops had finally arrived -- after having announced publicly that their anti-insurgent sweep was imminent and that civilians had best leave town -- the insurgents had vanished.

This episode illustrates the difficulty of fighting a war against guerilla fighters: their small numbers and knowledge of local conditions -- including knowledge about the local civilians -- allow them to strike and retreat with relative ease, as Ivan Eland, senior fellow and director of the Independent Institute's Center on Peace & Liberty points out in his latest op-ed.

"One of the objectives of insurgents is to induce the invader to use excessive force, thereby shifting the indigenous population's support from the invader to the rebels," writes Eland. "A second goal of the guerrillas is merely to keep an army in the field and launch hit-and-run tactics to convince the invading country's populace back home that its government is incurring unacceptable casualties and doing poorly in a faraway war. In Sarai, the rebels made progress in achieving both objectives."

U.S. military policy-makers also face another difficult challenge, notes Eland. If they try to minimize U.S. troop casualties, they will increase the number of Iraqi civilian casualties and thereby turn Iraqi civilians away from cooperating with the U.S. and the new Iraqi government; and if they try to minimize Iraqi civilian casualties, they will suffer greater U.S. troop losses and lose support from Americans back home. These alternatives seem mutually exclusive.

"Yet to win the war, the United States must maintain the support of both the Iraqi and U.S. populations," Eland continues. "This no-win balancing act is a major argument for great powers avoiding faraway guerilla quagmires in the first place."

See "Sarai State of Affairs," by Ivan Eland

To purchase THE EMPIRE HAS NO CLOTHES: U.S. Foreign Policy Exposed, by Ivan Eland, see

To purchase PUTTING "DEFENSE" BACK IN U.S. DEFENSE POLICY, by Ivan Eland, see

Center on Peace & Liberty (Ivan Eland, director)


  • Catalyst
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