Integrity Legal

7th May 2011

It is unfortunate that there is a seeming trend within the zeitgeist of the American collective consciousness to immediately associate the term “States’ Rights” with notions of slavery, discrimination, and, in a sense, political corruption. It is this author’s opinion that much of the animosity surrounding the term “States’ Rights” is derived from some egregiously wrongheaded positions held by bigoted and xenophobic American politicians in years past. This trend is unfortunate because it is this author’s opinion that the very diversity of jurisprudence in an intrastate and interstate jurisdictional context within the American Union (by this term, this author refers to the United States of America as enshrined in the United States Constitution and the amendments thereto in conjunction with the 50 several sovereign United States each having their own State Constitution) is the very sinew which reinforces America’s economic strength on the global stage. Others associate the term “States’ Rights” with secessionist movements in years past. To be clear, this author has always believed that America’s strength is in the Rights of the Several States WITHIN THE UNION! American Founder Benjamin Franklin once famously stated: “We must all hang together, or assuredly we shall all hang separately”. This statement is no less true now than at the time it was uttered. America’s strength lies in her simultaneous interstate and intrastate diversity buttressed by a virtually monolithic national government in matters pertaining to foreign affairs and national defense. It is something of a paradox that is both vexing to outsiders and the source of America’s ability to remain fluid in both a political and economic sense. In short: this duality is the secret to America’s historical success.

Full Faith and Credit: The Clause That Binds The American Republic

The Full Faith and Credit Clause of the United States Constitution could be viewed non-literally as the mortar securing the bricks which maintain the indomitable structure acting as a repository for the ideals of the American republic. Around the Full Faith and Credit Clause the Union of American jurisprudence is maintained. Therefore, analysis of said Clause is important for our purposes. This author has come to find much insight in studying the thoughts of Justice Robert H. Jackson on this issue, to quote directly from Justice Jackson:

“By other articles of the Constitution our forefathers created a political union among otherwise independent and sovereign states. By other provisions, too, they sought to integrate the economic life of the country. By the full faith and credit clause they sought to federalize the separate and independent state legal systems by the overriding principle of reciprocal recognition of public acts, records, and judicial proceedings. It was placed foremost among those measures which would guard the new political and economic union against the disintegrating influence of provincialism in jurisprudence, but without aggrandizement of federal power at the expense of the states.”

This author has often found that Justice Jackson is a unique resource on these issues as he understood the fundamentals of American law through long practice and study of New York law and later study of Federal law in his capacity as a Supreme Court Justice. Concurrently, Justice Jackson also was a trailblazer in matters pertaining to international law especially in his capacity as prosecutor during the Nuremberg trials. Therefore, this author finds Justice Jackson’s epitaph to be one of the most fitting: “He kept the ancient landmarks and built the new.” Such a notion should be palpable as America looks across the horizon of the 21st century.

Legal Diversity in an American Context

The motto on the Seal of the United States is “E Pluribus Unum”. This phrase is Latin and translates to English as “Out of Many, One”. Many Americans have long associated this phrase with the notion of the American “melting pot,” a phrase which alludes to the fact that America is a racially, ethnically, ideologically, and religiously diverse nation. This is very true and this fact has been one of the cornerstones of America’s relative economic success since her founding. However, rather few take note of the fact that from the perspective of an attorney this phrase could also allude to the notion of a legally stratified republic in a geographic sense as each sovereign American State has her own jurisprudence which operates simultaneously with much of that of the United States federal government. Under some circumstances, the federal government’s authority may override that of the States, but such circumstances, in this author’s opinion, are likely to be of less concern moving forward in light of the fact that the internet and World Wide Web have integrated the global economic platform to the point that true “Long Tail” economics is creating novelty and comparative advantage for the 50 states in both an interstate context as well as an intrastate context. This is also true in a global context as businesses located in the 50 States are likely to continue to do business in increasingly creative ways both domestically and internationally. The author does not mean to imply that there will be less Federal oversight in the future as there will likely be regulations and scrutiny emanating from federal authorities, but America is incredibly flexible when it suits her interests and as the business environment in America evolves so too does it seem likely that State and Federal regulatory schemes will evolve as well. This current state of affairs is likely to be the precursor to future economic dynamism in the relatively long term and could be the key to economic success in the short term as well.

Meanwhile, an understanding of States’ Rights, in conjunction with an understanding of the enumerated powers of the United States Federal government can provide a sort of framework for thinking about the opportunities which can be exploited by Americans in an increasingly economically integrated global marketplace of not only goods, services, and commodities; but ideas as well. For example, the State of North Dakota and the State of Utah have made interesting decisions regarding intrastate monetary and financial policy. North Dakota has opted for a sort of miniaturized Federal Reserve in that State in the form of the Bank of North Dakota, which is considered by some to be a departure from “mainstream” thinking regarding State finances. Also, the State of Utah has recently enacted a legal tender reform bill which appears to recognize gold and silver coinage minted by the federal government as legal tender within that jurisdiction. This legislation also appears to have changed the way in which the exchange of gold and silver coins are taxed in an intrastate context as the bill apparently repeals state taxation of such coinage. Those interested in further information on these issues are well advised to contact an attorney licensed to practice law in the State of Utah (and/or North Dakota, for that matter), as further commentary by this author on that subject would simply be an exercise in speculation. What is clear merely from the information noted above: American States are becoming increasingly creative and dynamic in terms of intrastate activity and this relatively new dynamism may be the driving force behind an eventually resurgent American economy.

America: A Nation of Webmasters

The Emperor Napoleon Bonaparte once snidely declared: “L’Angleterre est une nation de boutiquiers.” This statement could be roughly translated to state that: “England is a nation of shopkeepers”. Unfortunately for Napoleon that nation of shopkeepers went on the defeat his Grand Army at the Battle of Waterloo and thereafter administer an Empire upon which the sun never set. This historical factoid is important for the reader to understand because it elucidates an analogy in a modern context. Namely, the United States of America, due to the rise of e-commerce, appears set upon the path to becoming a nation of e-shopkeepers. These e-shopkeepers, e-commerce businesses, and webmasters are increasingly coming to form a major component of the American economy at a time when some areas of the economy are showing signs of stagnation. Bearing this in mind, the reader is encouraged to note a quotation from Sir Winston Churchill: “Some see private enterprise as a predatory target to be shot, others as a cow to be milked, but few are those who see it as a sturdy horse pulling the wagon.” The reader is encouraged to note the fact that Churchill was a British-American and quite proud to be so. Churchill understood that strong nations are built upon the foundation of a vibrant free market as well as a thriving business environment and he knew this from long study of American, British, and world history. In this author’s opinion, the wagon of America will continue to be drawn by the forces of her citizenry’s entrepreneurialism, but much of the commerce which emanates from the United States in the future will be on platforms which exist in cyberspace. Therefore, such commerce will not have all of the same attributes as that of years past.

America, China, Thailand, ASEAN, and Greater Asia

As the 21st century rolls on it seems likely that America will be increasingly engaged with Asia in both a diplomatic context as well as a commercial context. This commercial engagement is increasingly likely to occur across the spectrum of business as American companies large and small trade goods, services, and intellectual property with jurisdictions in Asia. While most Americans are aware of the growing economic might of Greater China comparatively few are aware of increasingly vibrant economies of countries such as the Kingdom of Thailand and the Kingdom of Cambodia. Meanwhile, the somewhat young Association of Southeast Asian Nations (ASEAN) would seem to be on track toward creating economic efficiencies across Southeast Asia to the apparent benefit of all concerned. In this author’s opinion, Americans would be wise to remain mindful of the East Asian and Southeast Asian markets as there appears virtually no limit to the economic potential inherent in some of these economies. Hopefully, through skillful statesmanship, keen understanding of relevant law, and shrewd business acumen America and the American people can benefit from economic developments in Asia and throughout the world.

For related information please see: Full Faith and Credit Clause or ecommerce.


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