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:
- Each level of government has a delineated scope of authority
- Each government is autonomous in policy
- Sub-levels of government have primary regulatory responsibility over the economy
- Free trade and free movement of people are ensured by the central government
- 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:
- Restrictions on Tax Powers of Congress
- Limits of Commerce Power
- Unfunded Mandates and Conditions on Spending
- No Abuse of the Treaty Power
- Freedom of Political Speech and Press
- Power of States to Check Federal Power
- Term Limits for Congress
- Balanced Budget Line Item Veto
- The Rights Retained by the People
- 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.