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[1] Erm let me make a few announcements ... erm firstly Longmans the publishers are producing a large and they hope definitive dictionary of the English language and in aid of this they have asked various universities to produce examples, recorded examples of academic monologue ... and we've agreed to cooperate and that is what this little piece of electronic wizardry is in aid of in case you were wondering. [2] Erm ... the lectures given in the Department of Politics can of course be described in many ways and academic monologue is probably one of the most neutral erm of them. |
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[3] Er secondly erm there's a, a change in the programme of these lectures. [4] ... Erm Dr Julia is going to be on sabbatical leave next term and would therefore like to give her lectures on Mill and utilitarianism erm this term ... so next week you will have Julia on Rousseau and immediately after that she'll give her lectures on utilitarianism and Mill and I will then come after that and deal with socialism and Marx and all that really sexy stuff. |
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[5] Erm finally erm ... I've come down with whatever it is that's going around and erm you'll notice that my voice is even more gravelly than normal erm I hope it holds out erm for the duration of this lecture. [6] ... I have ... in the last couple of lectures erm outlined or tried to outline erm Locke's basic decision erm his concept of ... how we as individuals are related to nature, to each other and I've emphasised the crucial importance of this notion of how we are related to God. [7] Erm ... if my reading of Locke erm differs from that of most of my erm fellow historians and political thought erm it differs in a matter of emphasis. [8] Erm I think that Locke's theology erm plays a much more crucial role in his thinking than many of my colleagues think ... and I mention this because er you might note this as a possible bias that you might like to take account of ... in reading Locke. [9] In short, as I said at the very beginning of this series of lectures, you mustn't treat what as I say as gospel erm ... I am perfectly capable of being a little bit eccentric, possibly even a little bit erm original erm in my interpretations. [10] Erm ... and I have been plugging the line that what underpins Locke's, what underpins Locke's general political position is his theology, his basically Calvinist notion of how human individuals are related to God, they are God's servants sent into the world about his business, that's what they're here for and that's what governs all their obligations, they're rights and so on. [11] ... It's an emphasis which is not endorsed by ... many of my colleagues and you'd better bear that in mind. [12] What I want to talk about today is erm Locke's erm theory of the social contract and government. [13] ... Now then, he argues that ... since in the state of nature erm the individual has the right to life, liberty and property, he or she also has a right to take such steps are necessary for the protection o o of these rights. [14] He may defend himself against attack, for example, cos he has a right to life and he may also defend his neighbours against attack. [15] Furthermore, if a violation of the law of nature has already taken place, he has the right to punish the offender. [16] And this involves both the right to decide ... that a breach of the law of nature has taken place, a right to decide what punishment is appropriate ... and also a right erm to implement this judgment. [17] In other words Locke argues ... on the basis of his general notion of the relationship between the individual and God and the individual and his fellow human beings, erm Locke argues that the individual in the state of nature has what one may fairly call legislative and executive authority over others. [18] And of course every individual has that authority. [19] ... Let me by the way put in a footnote here. [20] ... Erm ... modern theorists of human rights just start from the position that human rights are of course self evidently inherent in each individual, I'm thinking for example of erm Nosette ... In the tradition of, of natural, in the natural law tradition which Locke erm erm shares erm ... there is a basic position which runs throughout them all and that includes incidentally even Hobbes ... to the effect that erm ... we don't just have rights as individuals, we have rights for a very particular reason. [21] We have rights because we have obligations. [22] It's our obligations that are fundamental. [23] ... And it is because we have obligations that we can claim to have rights. ... |
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[24] If I signed a contract to carry out a complete refurbishment of the interior of your house ... I have an obligation to fulfil that contract. [25] ... That means that I have a right to access to your house. [26] ... You can't stand at the front door and say no you can't come in at all apart from its being completely irrational erm the point would be that, because I have an obligation to carry out this work, I have a right to the means to fulfil that obligation. [27] Similarly for Locke ... we're in this world, sent by God about his business, the business is, in very general terms, to flourish and multiply ... this means, well that is the reason why we have certain rights, the right to life, the right to liberty, the right to property because if we didn't have these rights we couldn't fulfil that obligation. [28] ... So rights and obligations here are very closely connected ... at least in tradi in the erm in the good old natural law of traditional thinking. [29] That's just a footnote. [30] Back to erm Locke's state of nature, as I mentioned erm according to Locke the individual in the state of nature erm has certain rights which involve the enforcement of the law of nature ... erm and this means that he has legislative and executive authority. [31] Now in the state of nature this has, according to Locke, certain inconveniences, first of all in the state of nature this means that individuals will often be judges in their own case ... and that is not good jurisprudence. [32] Erm it means that very often individuals will have an obligation to enforce the law of nature but will not actually command sufficient force to en erm erm sufficient force to execute their judgments and so on and so on and so on. [33] ... What is required, Locke argues, is that the law of nature be embodied in a set of known and established laws ... that there be an ind in short that ... it's not just up to the individual to state what the law of nature is in any particular case, you know, you've got a set of known and established laws, you know, which do that. [34] ... It requires that there be an independent and impartial judge to adjudicate disputes, I E a judge who's not actually a party to the dispute. [35] ... It requires also that there be an armed force sufficient to enforce the law on recalcitrant individuals. [36] ... Well these requirements are, Locke argues, met by the social contract, the social contract in which individuals agree and consent with one another, and I quote him [reading] to unite into a community for their comfortable, safe and peaceable living one amongst another [] ... quote. [37] ... By thus consenting they form one body politic and it is implied in the contract that the majority have the right to conclude for the rest and let me quote ... [reading] for when any number of men have by the consent of every individual made a community they have thereby made that community one body with a power to act as one body which is only by the will and determination of the majority ... it being necessary to that which is one body to move one way [] ... a single body can't move in two opposite directions simultaneously. [38] ... [reading] It is necessary the body should move that way whither the greater force carries it which is the consent of the majority or else it is impossible it should act or continue one body, one community which the consent of every individual that united into it agreed that it should ... and so everyone is bound by that consent to be concluded by the majority [] . [39] There are lots of things in this erm erm do notice that Locke is emphasising that by the social contract individuals establish a unitary body, a community ... and furthermore a community which has the capacity to act. |
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[40] There are certain problems with this conception, one of which at least I shall allude to erm towards the end of this lecture. [41] ... Erm there is a further implication in this conception, and again I quote ... [reading] whosoever therefore out of a state of nature unite into a community must be understood to give up all the power necessary to the ends for which they unite into a society to the majority of the community unless they expressly agreed in any number greater than the majority [] ... and this is done ... where are we [reading] by barely agreeing to unite into one political society which is all the compact that is or needs to be between the individuals that enter into or make up a commonwealth [] . [42] ... The power [clears throat] the power Locke has in mind is the legislative and executive power which the individuals possess as of right in the state of nature. [43] These are in erm in a social contract ceded to the body politic as a whole. [44] Now of course it is not normally practical for the community, the body politic, to exercise these rights itself ... so it entrusts them to a man or body of men whom it commissions to exercise them on its behalf. [45] In short the community once formed creates a government. [46] ... There are two acts here ... the creation of a community, a body politic, by the social contract ... and then that community establishes a government as a separate act and I shall emphasise the significance of that shortly. [47] ... First of all, however, we notice that ... Locke envisages the establishment of a government as the establishment of a trust ... and he means this in a fairly strict legal sense. [48] The government is a trustee and the body politic is both the trustor and the beneficiary of the trust. [49] The government is entrusted with the task of protecting the lives, liberties and properties of the individual members of the body politic and ... there is a reading of Locke which I questioned last Tuesday which says that that is all a government can do. [50] In short there is a reading of Locke that ascribes to Locke a sort of minimum ... government theory ... the night watchman theory of government, that all the government can do is protect the lives, liberties and properties erm of the members of the body politic. [51] ... We also note that erm ... this theory of the social contract is a theory about the origins of legitimate civil societies. [52] ... It is a theory about how a legitimate civil order can come to be established. [53] ... It is not the case that whenever we become a member of a civil society, a body politic, that we are so to speak signing the social contract ... erm think of it erm a little bit like erm a social club ... erm ... East Biddock Old Comrades Club was actually established in the way Locke describes, you know, a group of citizens of East Biddock came together and decided to establish a social club ... subsequently of course all sorts of people are admitted to membership of East Biddock Old Comrades Club ... but that as a process which, although very similar to the original contract of establishment, isn't actually erm ... the same, you know, they're not actually re-establishing the civil society, they're joining one that already exists. [54] I would suggest to you, in short, that erm just as Locke's labour theory of property is a theory ... is not a comprehensive theory about what constitutes a legitimate claim to own something but is really a theory about how private property comes to be legitimately created ... erm so his theory of social contract is not a theory about how we acquire political obligations, it's a theory about how legitimate civil societies come to be established. [55] It's a theory about origins. [56] ... Right let me now touch erm on three topics ... and the first one is erm the vexed question of consent in Locke. [57] ... You will recall that erm [tut] according to Filmer ... erm individuals do not consent to join a civil society ... they are simply born into it. [58] A civil society is a natural organism like the family and just as we're born into a family, so we're born into a civil society. [59] ... You have all sorts of obligations, obligations of obedience erm erm to the authorities that be for example, simply by the fact that you popped out of your mother's womb in that particular territory and under that particular jurisdiction. [60] ... No consent is involved at all. [61] ... Locke of course wants to argue a strong case to the contrary, he wants to argue that membership of a civil society is voluntary. [62] He wants to argue that we do join civil societies and that we can under certain circumstances erm decide to quit them ... and, overall of course against Filmer he wants to argue that in this respect a civil society is radically different from the family. |
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[63] Again think of the example of erm erm a social club ... you know, relationships between members, although they may be close and intimate and friendly and all that, are not the same as a relationship between members of a family. [64] You know, we've got a completely different animal, that's what Locke wants to argue. [65] ... Very briefly, on Locke's account, members of a civil society are obliged to obey the rules of that society simply because they have agreed to do so. [66] They have given an undertaking, they have promised, they have consented ... they have said that they would erm erm undertake certain obligations and [laugh] a gentleman's word is his bond isn't it? [67] ... They've promised. [68] ... However, and there is some discussion amongst interpreters of Locke about this, what counts as consent? [69] ... Locke speaks of express consent but also of tacit consent ... and indeed in one place tacit consent is deemed to have been given merely by being on the territory of the civil society in question. [70] The idea seems to be that you have tacitly accepted the protection of the laws and thereby you have tacitly undertaken to obey them. [71] ... A French tourist visiting England ... Locke's case seems to be that the moment he steps on the territory of England he has tacitly agreed erm to obey the laws ... and in return erm of course he receives the protection of those laws. [72] ... That just by coming to England and driving along the road from Dover to, to London or wherever ... he has given his tacit consent. [73] ... Locke does suggest, indeed, erm and erm the example that, the rather silly example that I just gave is meant to bring this out, erm that of course those who have only given tacit consent are not full members of that civil society. [74] Okay our French tourist is entitled to the protection of the laws ... but he's not for example entitled to vote ... and he's not entitled to hold erm public office. [75] Sure he has rights and there is a sense in which he is a member of that civil society while he's here ... but he doesn't have full political rights, he's not a full member. [76] ... And let me quote Locke ... er here we are are we ... he says [reading] but submitting to the laws of any country, living quietly and enjoying privileges and protection under them, makes not a man a member of that society [] then he goes on a little bit further down [reading] nothing can make any man so but is actually entering into it by positive engagement and express promise and compact [] . [77] ... Now many commentators have found it not entirely clear what Locke has in mind and I'm puzzled by erm the confusion into which they seem to have fallen. [78] ... Erm they seem to have some trouble erm ... grasping erm under what circumstances, according to Locke, you can be deemed to have been given, to have given express consent. [79] ... And some commentators suggest that, and I'm thinking here particularly of MacPhearson in his book erm erm erm Possessive Individualism, The Theory of Possessive Individualism ... erm ... they suggest that if you, according to Locke, if you purchase or inherit property in the territory of a particular civil society that counts as express consent. [80] ... Now what MacPhearson wants to say is that erm Locke sort of covertly wants to introduce a property qualification for full political rights ... back to the question who are the people? [81] ... Erm everyone or only those who meet a certain property qualification? [82] ... And MacPhearson wants to argue that Locke is ... fairly clearly suggesting that there is a property qualification for membership of the people, the people being the sovereign. [83] ... I find the textual basis for this interpretation very flimsy, in fact there is clear erm erm ... erm textual evidence for precisely the opposite and let me cite erm one instance ... Locke is here talking about tacit consent and the purchase of property ... and erm he says ... [reading] whenever the owner who has given nothing but such a tacit consent to the government will by donation, sale or otherwise quit the said possession, he is at liberty to go and incorporate himself into any other commonwealth or to agree with others to begin a new one in any part of the world they can find free and unpossessed whereas he that has once by actual agreement in any expressed declaration given his consent to be of any commonwealth is perpetually and indispensably obliged to be and remain unalterably a subject to it and can never be again in the liberty of the state of nature [] . [84] In short Locke is plainly saying, it seems to me, that anyone who ... say a French man buys a holiday home in England, reversing the general trend nowadays, erm ... Locke is saying he's still a French man. [85] Okay all he's done is given tacit consent, he owns property in England, fine, but that still counts only as tacit consent. [86] He can sell it and go back to France ... or might emigrate to America and join a different civil society. [87] But anyone who has given express consent can't do that. [88] So it, I think it is clear that |
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[89] Locke is not saying ... erm that the purchase of property in the territory of the civil society counts as giving express consent. [90] ... Well what does Locke mean by express consent? [91] Well ... Locke's contemporaries would know exactly what he meant ... in the late seventeenth century. [92] This was the age of political oath taking ... and I think it highly likely that Locke was thinking of, for example, the Test Act of sixteen seventy three. [93] Basically the burden of the Test Act was that all office holders erm all holders of public office had to take an oath of allegiance and had to erm take the sacraments in the Church of England ... otherwise they couldn't hold public office. [94] ... And that could fairly be called an act of express consent. [95] ... I think it is fairly obvious that erm the Test Act here erm was erm intended to exclude Catholics from holding public office. [96] ... Erm Catholics would be highly unlikely to consent to taking the sacraments of the Protestant church. [97] ... But erm that is the sort of thing that Locke had in mind. [98] And I think I'm right in saying that to this very day, all American citizens ... officially take an oath of allegiance. [99] ... Usually in their schools ... as teenagers, but they actually formally join the United States of America. [100] ... That's express consent. [101] And that I think is what Locke had in mind ... to be a full member of a civil society ... erm you've got to erm give your express consent for example in the form of an oath of allegiance. [102] That makes you a full member, it gives you the right to vote, it gives you the right to stand for public office, it gives you the right even to hold public office. [103] ... Nowadays many of us find that a bit strange, after all I don't think any of us ... or very few of us here in this room have actually given our express consent to be British subjects. [104] But in Locke's day ... it was normal ... and Locke's contemporaries I think would have had no problem understanding this ... what he meant. [105] ... A second general erm point that I want to draw attention to ... erm it goes back again to erm Filmer ... Filmer you'll recall had ruled out any meaningful distinction between the private and the public erm the domestic and the political. [106] The state is nothing but a family and we're related ... to his majesty Charles the First just as we are related to our dads ... as simple as that, you know, the private and the public are identical ... political relationships are fundamentally family relationships. [107] ... I might add that Filmer's notion of dominion as originally granted to Adam ... included both ownership of property and authority over men ... and here Filmer was trading on erm erm the feudal tradition of erm property erm erm erm dominion erm entails that if you have property rights in a certain tract of territory ... you also have political authority over the people inhabiting that or that territory ... you know, think of a straightforward standard lord of the manor and his service ... you know, he has property rights in the territory, he also has authority over erm the individuals who live off that territory. [108] ... Erm ... and his purpose in emphasising this very traditional notion of dominion ... erm was of course, well was amongst other things, erm to make the point that individuals have no right of property which they can maintain against a government. [109] ... In short the king can tax his subjects, can appropriate their property erm without their consent. [110] ... Erm that was at least one of the major political points that underlie this notion of dominion. [111] ... Erm in short Adam had been given ... erm lordship over the earth and all its creatures and with that he'd been given lordship over ... all human beings ... and the kings of this earth have inherited that lordship, that dominion. [112] Well Locke, you'll recall, erm ... well let me, let me first point out the further erm implication of this erm which is that erm ... individuals have no rights of property except those rights which are granted by grace by the authorities that be, by the king. [113] Mm. [114] ... Now Locke you'll recall had articulated a concept of private property as a natural right, inherent in individuals independently of membership in a civil society ... and ... in doing that he was of course trying to mount a case against erm Filmer's position. [115] Civil society on Locke's account is established to protect the property rights of individuals but apart from this there was on Locke's account no connection between political rule and the ownership of property. [116] ... Okay the king and parliament has very extensive authority over us ... but that does not include erm any rights of ownership in our property as individuals. [117] That was what Locke was trying to argue. ... |
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[118] For instance, erm ... erm a good illustration of this is Locke's erm erm argument on the right of inheritance and ... erm in this case I am quoting from the first treatise of government ... [reading] the right a son has to be maintained, has to be maintained and provided with the necessary the necessities and conveniences of life out of his father's stock gives him a right to succeed to his father's property for his own good but this can give him no right to succeed also to the rule which his father had over other men. [119] All that a child has a right to claim from his father is nourishment and education and the things nature furnishes for the support of life but he has no right to demand rule or dominion from him [] . [120] ... In short Locke wants to drive a wedge between ... our rights as private individuals ... and our rights as members of a civil society. [121] Erm ... as a private individual I have a right to inherit my father's house when he dies. [122] ... However, as an mere individual I do not also have a right to inherit his seat in parliament. [123] ... There is a clear distinction here between the private and domestic on the one hand and the public and the political on the other. [124] ... And I think you'll find that, in reading Locke, that that is erm ... one of the major themes of his argument. [125] ... Finally a word about the right of resistance. [126] ... And here I think Locke's distinction between civil society on the one hand and the state on the other is crucial ... and I mentioned this earlier and I'm now coming back to it. [127] ... Looking at Filmer again, for Filmer civil society was a natural organism of which the state was an integral part just as a father is an integral part of a family. [128] ... Not so for Locke, you will recall that so f the way Locke sets it up is a legitimate civil society is first established by a social contract and that creates a community, a body politic, which has a capacity to act, and I'll put a little question mark over that shortly, erm and that community then as a separate act sets up a government ... which, because it has set it up as a trust, erm it can change or dismiss pretty well at will. [129] ... And the effect for Locke is this, and again I, I quote ... [reading] the legislative being only a fiduciary power [] , that is to say a power based on trust ... [reading] a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust imposed in them and thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of every body even if their legislators whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject [] . [130] There's a bit of a puzzle here ... erm ... how can a community act as a single body ... independently of its governmental institutions? [131] ... You'll recall that Hobbes had argued that erm what creates a civil society ... what creates a community is the establishment of a government. [132] The unity of a civil society, what makes us all one people, is the fact that we're subject to a single government ... according to Hobbes. [133] ... [sigh] I find that Locke doesn't really address this point. [134] ... Erm okay ... as British we all form a single civil society, now Locke wants to say ... that we can act, for example, erm we can change the form of our government ... and we can do this independently of the government itself. [135] ... And I think one must ask the simple question, what sort of mechanism does Locke have in mind? [136] ... And I think it is not at all clear what sort of mechanism he has in mind. [137] It would be much simpler if he were simply talking about the relationship between the legislative and the executive ... cos here he could say right, if the executive gets out of hand and starts acting arbitrarily and tyrannically, then the legislative acting on behalf of the people as a whole can take action ... as indeed parliament did during the civil wars. [138] ... But he, he is envisaging, in the passage that I, that I quoted, the community as a whole actually taking action against a rogue ... legislative body. [139] You know, suppose parliament starts breaking the rules and acting arbitrarily ... and I say the mechanism is not clear. [140] ... And that is at least one of the problems with Locke's theory of the right of resistance to arbitrary government. [141] ... I'm sorry to leave Locke by giving you erm a problem but erm Locke is full of problems. [142] ... Erm next week erm Julia will start talking about the life and times of Rousseau. ... |
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[143] It will have nothing to do with the lecture but simply to impress those that my vocabulary is very wide. [144] Okay this er this lecture is called multiple government and the federal system ... and it flows directly from the last lecture when I started talking about the er the constitution and about the principles and the values that erm form the American system. [145] ... And if you cast your minds way back to Tuesday you will remember that what I said was that the Americans were trying to create a system of limited government er and yet one which er protected the liberties of individuals ... not all individuals, not black individuals especially but ... of individuals, this was the rhetoric of the time ... and the main device that they invented to do this was something called the separation of powers and they argued that, where political power is concentrated, the potential for abuse is greater so that where executive and legislative powers are held in the same hands, as they are in our system of government, the, there is more prospect of government encroaching upon the rights of individuals. [146] ... Okay? [147] ... Now I also said that the states which make up the United States were, for a brief period, independent entities themselves in the gap between the ending of revolutionary war and the framing of the constitution and so when their representatives assembled in Philadelphia in the summer of seventeen eighty seven, they were mindful of their independence and they were jealous of that independence, they wished to protect it against encroachment, they didn't wish to exchange one form of dominance for another. [148] So they, they welcomed the idea of a separation of powers but they also insisted on another principle, probably the most important principle of American government, and that is the principle of federalism. [149] ... Why is it the most important principle? [150] Well if you think about it ... it's the only principle that America has ever gone to war over. [151] Er the American civil war was fought essentially over federalism ... er involving many millions of men and er in which over half a million men died. [152] Erm so federalism is a fairly important principle in American government and that principle, essentially, is, and most of you I hope will have done the first year course politics and policy making where I talked about federalism in general terms ... that federalism is based upon the notions that in the same territory you can have more than one government and that those governments er are of equal status. [153] Erm in the American system of government the state governments draw their authority from the same source as the federal government, that is the constitution of the United States. [154] State governments are not subject to the whim or control of the federal government. [155] State governors are not to be directed by presidents. [156] Congress is not empowered to make laws for the states or to substitute them for the laws of individual states ... and so on. [157] And this is built into the heart of the system so you have a new nation being formed, a new political system being invented and it's invented on the basis of two principles ... separation of powers and federalism. [158] And federalism er remains a very important feature er of American politics. [159] Now the ... political culture of the time was such ... that the political system which actually emerged is rather different from that which some of the people who went to Philadelphia thought would emerge ... and that really reflects a number of changes, one that America has grown from four million to two hundred and fifty million, two, from being isolated, remote and scattered the population has consolidated and grown, America has become a vast industrial power as opposed to a, an agricultural nation and all these have had their impact upon the importance and scope of government. [160] Erm in the er late eighteenth century the, the, the consensus was that you needed government for some spec specific purposes. [161] You needed government for defence to protect you against external enemies and to engage in foreign relations and diplomacy, and you needed government internally ... to regulate conflicts between states er and to ensure a, a sound economic platform so that you needed er a single authoritative source of currency for example er and a single source of er er tariffs and trade controls. [162] But over and above that, most Americans in the late eighteenth century believed that, in so far as government had any impact on their lives, it would be local government, it would be the government of their state and not the remote government in Washington ... which most people in the eighteenth century had never visited or knew anything about erm or li knew little of what it did. [163] Now over time the relationship between the states and the federal government has been put to the test. [164] It's been put to the test in the courts er and ultimately it was put to te put to the test er on the battlefields ... |
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[165] in the civil war. [166] And I think it's worth just rehearsing very briefly that history to get an understanding of contemporary federalism. [167] If you can imagine at the convention the bias was very much towards preserving states' independence. [168] If you want this constitution ratified I can't go back to my people and say you're giving up all your independence, there's a new national government which is gonna decide everything. [169] That clearly would not sell back home. [170] Er and so the constitution of the United States contained within it certain ambiguities, a certain vagueness of er statement and the actual working of that in practice er was left to the politicians and the judges of, of later times. [171] But quite early in the history of the United States some very crucial decisions were made, very crucial decisions. [172] And the first was made in a decision of the Supreme Court in the case of McCullock versus Maryland ... in eighteen nineteen [...] just over thirty years after the constitution was drafted ... and in that the Chief Justice of the Supreme Court declared that where the er national government, the federal government, and the state governments appeared to have erm concurrent jurisdiction, that is they both have some say over an area, and there's a clash between the state government and the national government, that national government's will prevails. [173] ... So where there is concurrent jurisdiction, simultaneous jurisdiction, see I'm throwing these words in here, concurrent, simultaneous, you know, erm ... the national government er er prevails. [174] The actual case erm ... was erm where the federal government established a national bank which had an office in, in Maryland and Mr McCullock was the cashier of the, of the national bank er and the State of Maryland er thought that a national bank was an unfair form of competition with the local state banks in Maryland and imposed a tax on er on the national bank. [175] Now when it came down to it the national government essen sorry the Supreme Court essentially said if the national government wishes to create a national bank in pursuance of legitimate aims of the constitution then it should have the discretion to do so and it shouldn't be interfered with by a state government. [176] So where there was a potential for conflict between national and state, the court sided with the national. [177] Just five years later in eighteen twenty four er in a case called Gibbons versus Ogden ... I forget precisely who Gibbons and Ogden where, erm but this was a case er of a dispute between the states of er New York and New Jersey over navigation rights on the Hudson River er and who had the right to regulate trade on the Hudson River. [178] Now the Supreme Court declared that decision that the constitution gives the power to regulate interstate commerce to the national government, I E it wasn't a matter for New York, it wasn't a question of whether New York or New Jersey should control it, it was a matter for the federal government not for either of the states. [179] So quite early on some very crucial decisions were made which tilted the balance very much towards the national government. [180] So it's wrong to see federalism in a sense as an equal partnership between the states and the, and the central government ... it is biased towards central government, always has been so and has in become increasingly biased towards it i in modern times. [181] ... Now you know the ... decisive event of American history, the most important single event in American history was of course the American civil war. [182] The American civil war decided something fundamental ... it didn't decide, as some people argue, that blacks were equal to whites ... this was w one of the least of Abraham Lincoln's concerns ... Abraham Lincoln supported in the eighteen fifties, I throw this in for people who ... Americ and there's usually an American in the audience who's brought up to believe that Abraham Lincoln walks on the water, you know erm ... [tut] he actually suffered from syphilis by that's by the way |
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[183] it's |
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[184] it's no wonder he looks so depressed most of the time but the |
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[185] er [clears throat] Abraham Lincoln actually supported a constitutional amendment which would guarantee the right of people to own slaves so the idea of Lincoln the great emancipator and friend of black people, it needs to be corrected slightly. [186] Erm ... in the, in the civil war issue what was at stake here er was er the nature of the republic, the nature of the union. [187] Erm these states had come together voluntarily in seventeen eighty seven ... er to secure common aims [clears throat] protection against foreigners, Indians er economic aims, and these aims bound them together, common purposes and so on, but was the United States a permanent union? [188] Or was it something like, you know, the Conservative Party? [189] ... Something one could join and leave as one felt like it. [190] [clears throat] And the er State of South Carolina tested that principle. [191] South Carolina threatened to leave the United States in the, in the eighteen thirties and ultimately er in, in the eighteen sixties it did so ... and er it was followed by a number of other states, the so called confederate states. [192] And the question that was put then was the question that Lincoln had no doubt about the answer to which was ... this is a, is this a permanent union or not? [193] Yes it is. [194] You know, this is indissoluble, it is forever, to eternity ... er and there is no scope, no opportunity, no precedent, no procedure for a state to leave ... once it's joined. [195] I used to argue in the nineteen sixties that Britain should become the fifty first state but I'm ... not so sure about that. [196] In any event the civil war was the ultimate sort of turning point which defined that the national government er had a responsibility for ensuring the permanence of the union and it took that responsibility so seriously it was prepared to engage in what was then the bloodiest war in human history. [197] And that defined the permanent character of the United States and then what happened subsequently er was of course that the, in the twentieth century, er America evolved into an industrial power erm and certain changes were made to the American constitution which had a profound impact. [198] The American constitution cannot be changed except through a very cumbersome and difficult constitutional procedure which requires the vote of two thirds of the members of both houses of congress ... and a resolution from three quarters of the leg state legislatures, so it's not a simple majority, you can't just simply say oh let's add something to the constitution, very difficult indeed ... erm er and there hasn't been a significant recent amendment to the constitution. [199] Er in the nineteen seventies and eighties there was a long running campaign to get an equal rights amendment ... er which was sponsored largely by er women's groups and er and er gay and lesbian groups ... er and they got almost there, they got two, I think two states short of getting a constitutional amendment and then something called Ronald Reagan happened and it all sort of fell apart. [200] Erm so the, the procedure then was er in the early part of this century, most important er amendment, whose number I've forgotten, but in about nineteen twelve I think it was er a, an amendment was passed which added to the powers of the federal government the right to levy an income tax ... er and er that transformed the relationship between the federal government and the states because the erm ... potential revenues to be derived from income tax are huge. [201] And in the nineteen thirties America went into the worst economic depression it's ever seen and the state governments were literally overwhelmed by the economic hardship and the economic problems and the federal government came galloping to the rescue. [202] Well cantered slowly to the rescue. [203] Erm well ... cheered them up. [204] Erm so the federal system has a constitutional basis but it also has a financial basis ... er and the two are er closely linked. [205] So we have increasing dominance of a national government and we have increasing importance of er of er federal monies and, and, and er taxation powers. [206] [tut] now before I say something about er about er contemporary federalism, let me just er put the other side of the case for a moment. [207] Erm you may, you may start to believe from what I've been saying that federalism is a kind of sham, you know that it's a ... that really ... states have lost significance viz a viz the federal government, federal government is now more or less a, a unitary state and runs everything, well that's not true at all. [208] Let me just run through a few features of American political life which make it rather different to er to our own er sceptred isle. [209] Every state of America, in America, determines its own constitution and its own political structures. [210] And each state is entirely free to devise whatever political structures it feels like devising. ... |
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[211] There is a er an almost consensus across the states as to what that should be erm but there are variations so there could be wild variations so that there, there is a, a scope er to determine that er each state is free to set up whatever ... agencies or departments, parts of the bureaucracy it feels like setting up, it's not subject to any federal control or national standards. [212] It's entirely at the discretion of each state how they organize their own governmental affairs. [213] Each state in the United States has a different criminal and civil code. [214] ... And any of you who have been to the United States may have experienced this. [215] If you drive from ... er I remember being stopped by one of those men in the dark glasses erm [laughing] if you drive from Maine [] into New Hampshire ... the speed limit in Maine is sixty five and the speed limit in New Hampshire is fifty five ... and you just cross a si er y there's a signpost which says welcome to Maine or New Hampshire, whichever way you're going, and the second you cross that line, theoretically, you have adjust to the different speed limit. [216] So if you were going at sixty four, you know, about a millimetre before the sign you have to be going at fifty five a millimetre after the sign er and you can be pulled up by a State Trooper as I was pulled up, quite unjustly I felt. [217] I didn't know there was a different speed limit between, between the two states. [218] ... Er an so there can be profound differences in er if you think of a subject ... I touched upon last time, a very er contentious issue in American politics, the abortion issue, erm ... before the Supreme Court dealt with the matter in the nineteen seventies, every state in America had a different law ... on abortion. [219] So you could literally have a situation in which you could live say er er a woman could er live er you know a mile from the state line and in one state er abortion er could be something which ended up with a doctor in prison for life, in another state, across the state line, it could be something which was er ... you know er provided free of charge by the state public health authorities. [220] So wide fluctuations, entirely different er codes. [221] This causes all sorts of complications, I mean if you erm if you qualify as a doctor in Texas er and you go to Massachusetts ... you have to go through another set of examinations before they allow you to practice medicine in Massachusetts because they don't accept automatically Texas qualifications, they re regard the ri they retain the right to determine their own standards of procedures in these sorts of areas ... so their own criminal and civil codes as well as their own political structures so these are major matters. [222] Each state er engages to differing degrees in economic er and er economic policy making and economic regulation. |
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[223] Different states have different practices on, on er er minimum wages, on er banking structures, on regulation of utilities, on er housing policies, on transportation policies, all of these vary from state to state. [224] The federal government tries to get involved, it tries to see some consistency but it can't actually impose that, the states still retain er the right to do things their way ... and they do. [225] And it's also true in erm in social policy, in health care and so on. [226] You will find er different states operating different polic one of the, one of the most interesting transformations of America in the post second world war years er was the migration of many millions of er black people from the southern states to the northern states. [227] Erm and there were two very profound reasons for that, one was the decline in employment in southern agriculture, the increasing mechanization of agriculture displacing er millions of er agricultural workers ... er and the second and more important factor was that the southern states provide almost nothing in the way of social provision ... and certainly nothing for black people ... er whereas the northern states were much more generous. [228] So if you think about the massive exodus from the south in the nineteen sixties and seventies ... erm I can't remember the precise figures but in the, at that time er sort of the equivalent of current social security cheque er in er if in, if in New York it was about five hundred dollars a month ... in Mississippi it was fifty dollars a month. [229] So if you were unemployed in Mississippi and you were black, you had trouble getting the fifty dollars to start with but that was all you'd get, but if you went to New York you get five hundred dollars, so what would you do? [230] You know, so a kind of enforced migration because of different social policies pursued by, by different states. [231] And then the ... ultimate differences between the states are that they have control over their spending. [232] Erm they have control both of income generation and expenditure. [233] They choose to tax as much as they want to and they choose to spend as much as they want to ... and no one can tell them otherwise, there is no central control over that. [234] So if you take er another example ... erm ... most American states, the majority, have er a sales tax of some sort, equivalent to VAT as we would call it, er most of them have a property tax, equivalent to rates or council tax or whatever you want to call it now, er and the majority have an income tax as well, a state income tax. [235] So they have a wide tax base and they can generate large sums of money ... if they, if they choose to do so ... and in different states there's a different culture, a different attitude towards public spending and taxation and so on. [236] If you go to New Hampshire, I mu I must make a study of New Hampshire some time, if you go to New Hampshire, which is a delightful place, if you go to New Hampshire, New Hampshire appears to have no taxation at all as far as I can ascertain ... and the most favourite er car bumper sticker in New Hampshire is taxation is theft. [237] You know they're, they're opposed to it in principle ... erm so they don't have an income tax, they don't have a sales tax either er I'm not quite sure how they finance public services in New Hampshire, it's a mystery to me. [238] Erm so there is this wide, you know, a variation. [239] But if you just take those points er an and, and think them through in your own mind about how this system of government differs say from the British system of government and the position of local government in the British system, you can see that, well we don't really have local government do we? [240] You know we don't have anything which matches. [241] So while you can talk about the expansion of ... federal powers and the dominance of the national government in certain areas, it is but nothing compared to the dominance of central government in Britain over, over local government. [242] If you think about the taxation issue, you know, the government in Westminster exercises very stringent controls over what local governments can spend, how much they can borrow, what they spend it on erm if they don't like it they apply financial sanctions to, to local governments and if they really get up their nose they abolish the local government altogether. [243] Erm ... you know there is no doubt in our system of government that the power is highly centralized and that local government is seen as a, a possible convenience well a public convenience probably erm something |
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[245] something to be dropped on from a great height as frequently as possible er particularly if it's the G L C. ... In the United States, however much the federal government is irritated by the state government, it cannot attack its constitutional powers nor can it undermine its financial base ... so that's a different relationship, it's a relationship based, not on dominance, but on partnership ... and there has to be an understanding, a trade off between federal and er a and state government. [246] Now [clears throat] ... there's something else that's important here and it's something, it's an aspect of erm of federalism that people very often er fail to grasp erm ... we live in a, a small and densely populated island er and we have a political structure and a party system which is highly centralized and which places er great emphasis on the question of party discipline and loyalty ... and er these centralized party structures control er the conduct of political business in the, in the parliament and, and in cabinet and there is essentially no political life outside of that. [247] It's, you know, it's like what's his ... Captain Oates was it, going out into the tent in the Antarctic or something, you know it's sort of I may be gone for a while, you know, in the ... in the, into the wilderness and never to return so that in, in the British structure er politicians are, their loyalty is central rather than local ... because their political futures are determined centrally rather than locally. [248] In the United States the, one of the impacts of federalism and the size of the United States and its diversity, is that politicians in America are all local. [249] Everything is local in America. [250] ... Now if you think about conflict between the centre and the states you then have to ask the question well what is the centre? [251] Well the centre is made up largely of the president er and the congress ... but the congress is made up of politicians elected from the states ... local, local politicians locally accountable. [252] There is no central ... governmental structures and disciplines, there's no party control er no party, no equivalent of the, of the whips office ... er in England. [253] The politicians go to Washington as representatives of their states. [254] ... So to set up a conflict in your mind between the states and the federal government mistakes the nature of that relationship. [255] The politicians in Washington are there to fight for their state ... and the conflicts in Washington are not conflicts between, so much between the states and the federal government, as conflicts between the states ... for different advantages. [256] You know if er ... you know if federal government says well we think it'd be a good idea to set up a erm you know a national space agency er NASA and all these other wonderful things, you know, and all the people in congress say [clicks fingers] great idea, great idea ... er we'll have to have a launching site, we'll have to have a launching site in Florida ... er cos it'd be good to get one next to the water otherwise the rockets might come down and hit people and that would be ... unfortunate so ... we'll agree there has to be a seaboard state but Flo well we'll choose Florida cos the weather's nice and ... you can play tennis all the year round so it's a good idea [clears throat] and then we have to have mission control, right? [257] You know where NASA's mission control is? [258] Houston Texas ... so you've got the rockets going off in Florida being controlled by people in Texas, why? [259] Because the chairman of the committee in the senate that decided this came from Texas ... and this provides lots of jobs in Houston so he thought it was a jolly good idea. [260] So he was fighting for his state against Florida and against other states who were trying to get these public projects. [261] So it's, it's wrong to see it as a centre local conflict as much as a conflict between the states about public goods, public projects and er and various kinds of freebies. [262] Okay now [clears throat] taking that point then let's look at the, the nature of er federalism financially. [263] ... As I said in the nineteenth century government did very little. [264] It spent er very little and the federal government's er expenditures really didn't amount to, to very much at all. [265] But in the twentieth century, and particular from the time of the depression, federal spending has increased enormously. [266] Let me just,le I'm not really a, I'm not really a very numerate political scientist but let me just run some numbers by you to give you an idea of the escalation of the change. [sniff] |
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[267] Erm [clears throat] in nineteen fifteen, that's before the er first world war, the federal government gave to the individual states a grand, in aid and grants and support, a grand total of six million dollars. [268] There has been quite a bit of inflation since then but even then six million dollars was not a lot. [269] ... Erm ... in nineteen thirty seven, that is er after the first New Deal and the second er Roosevelt administration, the federal government gave to the states three hundred million dollars ... so you can see in percentage terms the enormous er an enormous increase, enormous trans transformation. [270] ... By nineteen fifty federal aid to the states had reached two billion dollars. [271] So we've gone from six million in nineteen fifteen to three hundred million in nineteen thirty seven to two billion in nineteen fifty. [272] ... In nineteen ... sixty five ... the total reached eleven billion. [273] ... But since then the world has gone completely mad ... and in nineteen ninety, which was the last er time I checked this number, in nineteen ninety federal aid to the states now reaches one hundred billion dollars. [274] So from six million in nineteen fifteen we've gone to one hundred billion, one hundred thousand million dollars. [275] So the role of the federal government in financing the states has increased immensely and you might think that carries with it certain political implications and it does, but it's important to understand ... how small this is compared to the total picture. [276] Let's again look at the, look at the contrast. [277] In the British system of local government finance, with the wonderful inimitable reforms of the present government, er we have gone from a situation in which er the central government financed about, between forty five and fifty percent of local expenditure ... to a situation where the central government finances about eighty five percent, I think between eighty five and ninety percent of local spending. [278] So if you complain about your council tax, don't, students are exempt anyway so that's alright, if you complain about your council tax don't because it only pays for a very small fraction of what local authorities spend. [279] So in financial terms the local authorities are entirely virtually in the pocket, literally in the pocket of central government. [280] Now in America, through the nineteen seventies and eighties there's been increasing concern, an increasing concern that the states were becoming more and more dependent on the federal government and these figures ... suggest that there was good reasons, this was one of Ronald Reagan's campaign themes, this was a g a growing concern, he said the federal system has been shattered, it's, it's changed its character, the states are now dependent on the federal government and this is dreadful ... and we must, we must change this. [281] And because he had a very happy turn of phrase, Ron, he said that the states had become federal aid junkies. [282] You know Nancy was saying say no, you know, but they were, the states had become fixed ... dependent, chemically and financially dependent er on the federal government and that must change says Ron. [283] And he tried to change it. [284] He tried to cut the money that states received er to a marginal degree. [285] But in the total picture ... if you take what a, any, an average American state spends and you ask the question what proportion of that money comes from the federal government, the answer is ... wait for it, the answer is about twenty percent. [286] It reached an all time high of twenty five percent in about nineteen seventy five and it's gone down since. [287] Or put the other way round ... every American state raises eighty percent of the money it spends within the state ... whereas a British local authority is raising ten percent or fifteen percent. [288] So although there has been an enormous expansion of federal aid, there's also been a vast expansion of state spending and state tax raising. [289] ... Now one of the things that Ronnie Reagan was disappointed to find was that ... in order really to address his budget deficit, he cut federal aid to the states but he did it er dressed it up in an ideological argument which said you know that the government is too big, government is too intrusive, government should get off the backs of the people, you know, er we shouldn't go to government to solve our problems, government is the problem, that's one of the, one of Ronnie's other memorable phrases. [290] Erm ... indeed I saw him, I saw Ronnie once in a hotel in er in Washington, this was the time ... it wasn't actually the time he was shot cos I got away that time but the |
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[291] he, he erm ... he started his speech by saying er you know what are the, what are the ten most frightening words in the, in, in the American language ... an and he said, the answer to his own question was ... I'm from the federal government, I'm here to help. [292] You know |
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[293] er and that plays very well with conservative business men if you, if you say that often enough. [294] But what happened when Reagan actually cut the grants to the states was that the states increased their own spending. [295] They actually taxed their own populations more to keep public services at, at the level they were before. [296] So it wasn't the fact that he'd cut back on government it's just that the government came, the spending came at a different er point in the, in the political structure. [297] So erm ... what I'm trying to say here then is that the federal government is important, the federal government tries wherever possible to guide states into, into good practice and it offers rewards to states to comply with, with federal er guidelines so that, you know, if you want federal aid for er a particular project you have to, if you accept federal money, you have to ensure that you meet certain standards or certain conditions, but a very convenient way of enforcing civil rights er policies. [298] So obviously if er if Mississippi wants some federal money for a project they're not gonna get it unless there are civil rights provisions built into the, into the project that is, you know, you can't just give dole out to white people and refuse it to black people erm ... that there has to be equal opportunities and so on . [299] But it's interesting in American politics that there's great lip service paid to ... er the rights of states but really there's no ideological argument that overlays that. [300] Erm in the days before the civil war the southern racists were very concerned to enforce federal laws in the north that the north didn't like ... like the fugitive slave law. [301] You, have you all read Uncle Tom's Cabin? [302] Do they still read that at school, Uncle Tom's Cabin? [303] No? [304] Sad tale of the runaway slave and so on, separated from his family and his children and he runs away |
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[305] [laughing] and they [] er as in many countries erm there is a very high incidence of er of death through death driving erm amongst young people and in America each state has a different er age in which you're allowed to consume alcohol. [306] So in some states it's sixteen, in some states it's eighteen, in some states twenty one er and Reagan thought it would be quite a good idea if they had uniformity across America er in which, you know, that they would raise the drinking age to twenty one [tut] er and this would then er reduce the incidence of teenage drunk driving ... and if you've ever been in an American bar you will know you're very often ... funnily enough they don't ask me so much these days but you're very often asked to prove your age, you know, er and you have to produce your driver's licence and all the rest of it ... erm and so he increasing |
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[307] pure, unadulterated, you know ... erm if you want this stuff then you have to raise your age of drinking ... I mean just er you know a, a piece of leverage [laughing] or leverage [] as Americans say, to, to get the states to comply. [308] This is the president who has this wonderful rhetoric about states and federalism and, you know, the rights of states, but he was, he himself was not afraid to use the power of the federal government to try and lever the states into line and it worked, you know, we're talking serious money here. [309] Erm so what I'm saying is that there is a partnership between the states and the federal government, there is no single fixed correct relationship between the central government and the state government, it changes from time to time er more and more of the cards are coming to the hands of the central government ... but you would, you would be wise not to underestimate the independence and the diversity of the American states which have a, a genuine er sense of, of local er democracy and difference er and states very frequently resist the federal government. [310] So the ideal as far as federal government is concerned is they, they devise policy guidelines and they provide financial inducements to states to implement various programmes but when it comes down to it they run up against the rock of the constitution ... and the constitution says that the states derive their authority from this sacred document and they are not to be tampered with ... and the consequence is that America has, not only a federal government, but fifty state governments er and those state governments are large enterprises which enjoy wide initiative ... and they contributors, contribute to the divi diversity of the United States as a political system. [311] I'll stop there. [312] Thank you very much. ... |
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