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The Fate of Federalism

Posted in liberty by dingodonkey on August 24, 2009

Federalism is a bedrock principle underlying American government — keeping different layers of government with different powers in competition with one another was supposed to prevent a republican form of tyranny from arising.  Barry Weingast identifies five features of federalism that create “market-preserving” (read: power-limiting) conditions of competition between governments:

  1. Each level of government has a delineated scope of authority
  2. Each government is autonomous in policy
  3. Sub-levels of government have primary regulatory responsibility over the economy
  4. Free trade and free movement of people are ensured by the central government
  5. Governments face hard budget constraints (no inflation and no bail out of the lower levels by the central level)

Since the Civil War, and especially following the reforms of the Progressive Era, we have seen this glorious institution eroded to the point that state governments are rarely much more than administrative arms and budgetary cop-outs of the federal government.  This degradation of federalism has recently reached a new height of intensity.

In an April opinion piece for the Wall Street Journal, Georgetown law professor Randy Barnett proposed to cut off the expansion of federal power right at the source, in the very Constitution that ostensibly defines the scope of federal power, by passing a Federalism Amendment.  Included amongst its provisions was the strict prohibition of intrastate regulation by Congress, an expansion of Congress’s regulatory power over interstate activity beyond commerce, a repeal of the income tax, and an explicit declaration that the Constitution’s words are to be interpreted “according to their public meaning at the time of their enactment”.  This seemed like an awfully messy conglomeration of ideas, which, after a period of public commentary, he would recast as a 10-amendment Bill of Federalism, with sections entitled:

  1. Restrictions on Tax Powers of Congress
  2. Limits of Commerce Power
  3. Unfunded Mandates and Conditions on Spending
  4. No Abuse of the Treaty Power
  5. Freedom of Political Speech and Press
  6. Power of States to Check Federal Power
  7. Term Limits for Congress
  8. Balanced Budget Line Item Veto
  9. The Rights Retained by the People
  10. Neither Foreign Law nor American Judges May Alter the Meaning of Constitution

How would a Bill of Federalism ever be adopted?  It would seem to only be possible by the states threatening to or actually calling a Constitutional Convention.  That,  of course, has never occurred before and probably never will.  But suppose it were to — why would we expect our government to follow these amendments any more than it follows the rest of the Constitution?  A written constitution was a magnificent experiment that has failed because we have allowed our governments to ignore the restrictions we once placed upon them — we are living in a “post-constitutional” nation now, where we mostly only refer to the Constitution for electoral procedures and public relations.

This well-intentioned effort to save federalism is tragically in vain.


7 Responses

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  1. Prester Scott said, on August 24, 2009 at 7:27 am

    Question for discussion: is federalism what we really want, as such, or the principle of subsidiarity?

  2. jupistar said, on August 24, 2009 at 1:27 pm

    Prester – I’m not sure I see the practical difference. Federalism is merely an instantiation of the subsidiarity concept, in my mind.

    Author – The reason the central (Federal) government has trampled on the rights of the states is because the Supreme Court has allowed it to and the States have not fought back in any meaningful way. Secession is such an unthinkable subject that no state will willingly walk that road, especially with so many proponents of anti-Federalism as exists within each state’s boundaries.

    As such, I think you’re right that the effort is in vain, but only because liberty-loving people are so incapable of selling their political ideology to the people. It makes sense. It’s reasonable. But it sounds extreme. In today’s world of well-developed propaganda machines, libertarians like myself are woefully inadequate competing at the marketing in which the leftists and the “rightists” engage

  3. dingodonkey said, on August 24, 2009 at 5:06 pm

    Prester Scott — It’s a good question to ask, I think, and I don’t have the answer. But at the very least, there should be no question that our system was intended to be a federal one, and that that is the way that our founders intended to implement and maintain subsidiarity. Is federalism vital? Not really. Is subsidiarity vital? Not really. Are mechanisms that self-enforce restraint on the expansion of power vital? Oh most definitely, if it’s even truly possible. Having as much government as possible be as local as practical seems like a lost ideal.

    Jupistar — The SC most definitely has allowed the destruction of states’ rights, but let’s not forget that the Constitution itself was amended to weaken federalism (instituting direct election of senators was huge). Secession is unthinkable, because who or what would secede? In the Civil War, there was a real geographic and political division between states that made states seceding sensible — for all our deep differences today, we don’t have geography on our side, or even existing political structures reflecting the different factions — both of which were present for the Civil War. But I wouldn’t give up all hope. We live in such strange times, and a well-articulated libertarian message could be very well-received by a public that has grown weary of the same old BS. But as long as our loudest voices are the kooks in our ranks, you can forget that.

  4. Prester Scott said, on August 25, 2009 at 9:21 am

    Actually I think subsidiarity is vital. Departing from the principle leads to madness. Modern statists want to insert a centralized omnipotent State in the place of every other level of government — regional, local, commercial, religious, even individual homes and families. On the other extreme, you have anarcho-capitalists, who expect every sovereign individual to be responsible for things like the rule of law and national defense.

    • dingodonkey said, on August 25, 2009 at 5:33 pm

      And I actually think that insistence upon a centralized omnipotent State isn’t just a question of political philosophy, but general intellectual disposition — these days, there’s a notion that directed human control is necessary for all kinds of systems and endeavors. This goes against other trendy intellectual ideas like the power of emergence, self-organization, chaos, various exciting developments in evolutionary theory, etc. But it also satisfies something more carnal in the elite intellectuals who think this way, just the very people who would have to be in charge of these complex systems for them to ever have a chance of working!

  5. euandus said, on October 22, 2009 at 12:19 pm

    I suspect that the latest compromise regarding state banking regulation points to the influence of large corporations on the Congress as a culprit in the on-going eclipse of federalism. Pls see my blog if interested. Thanks.

  6. euandus said, on October 29, 2009 at 9:54 am

    See if you think I’ve got it right in how I depict federalism. I had several replies to my posts so I wrote another in defense of the governmance system. If you are interested in having a look, here is the link. http://euandus3.wordpress.com/2009/10/27/coming-soon-a-post-on-problems-with-a-resurgent-federalism/

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