Roll Over, James Madison

Where have all the federalists gone?


We may be losing liberties in the war on terrorism, but at least we know they're disappearing. We've heard less about the injuries done to federalism, because the people who usually speak up for that principle -- the conservatives -- have been largely AWOL.

Federalism comes in many flavors. There is your garden-variety laboratories-of-democracy federalism, where Oregon can institute single-payer health care and Wisconsin can throw everyone off welfare and Iowa gets to watch and learn. There are more hard-core varieties too, like National Review Online chief Jonah Goldberg's proposal to do away with "98 percent of all conservative-versus-libertarian arguments" by decentralizing most public policy to the cities and counties.

But it's hard to devolve decision making when Washington keeps arrogating power to itself. Since 9/11, a Republican administration has federalized airport security, imposed new unfunded mandates on local transportation authorities, and even flirted with moving the military into domestic police work. A few conservatives have stood up against such changes. Others, including some purported federalist fanatics, haven't complained about much besides the new airport security regime -- and that mostly because it won't engage in racial profiling.

One conservative who's stuck to her federalist ideals is the hardest-working housewife in politics, Phyllis Schlafly. In a syndicated column this summer, she thundered against "increased federal control" in the wake of 9/11, targeting her ire at Operation TIPS (the administration's proposed national clearinghouse for Stalinoid snitching), the USA PATRIOT Act, and the president's National Strategy for Homeland Security.

The last, Schlafly wrote, "sets us on the path of morphing driver's licenses into a national ID card." She noted that such licenses "are and should be under state jurisdiction" -- the traditional federalist position -- and suggested that Washington could achieve the same national-security ends without stepping on the Constitution if it would merely reform "the irresponsible way it issues visas to people from terrorist countries."

She also objected to the idea of using the military as domestic cops: "If U.S. troops are to defend us against terrorists, they should be used to prevent suspicious aliens from coming across our borders, not for police work against U.S. citizens."

Search the work of Goldberg, semi-reformed Leninist David Horowitz, Wall Street Journal Arab basher James Taranto, and other erstwhile federalists. You'll find no echo of this analysis. You will, however, find defenses of the new programs, with The Weekly Standard's Fred Barnes even stumping for a national ID card. Taranto claims TIPS should raise no civil liberties concerns, and Horowitz has been nostalgic for the FBI's old Cointelpro program of domestic spying.

The writer who came closest to addressing the federalism issue was Goldberg, when he distinguished himself from "anti-state conservatives" as well as libertarians. Those groups oppose centralized power per se, he explained. And while he "would prefer as small a government as most anti-state conservatives," he figures the Republican vanguard might as well seize the commanding heights and start "kicking the Left to the curb" before it allows the state to wither away.

Perhaps I'm just not being creative enough in my interpretation of federalist principles. Perhaps, when the Pentagon's colony at Guantanamo exempted itself from the ordinary rules of imprisonment, it was merely being another laboratory of democracy. Perhaps Operation TIPS is a radical experiment in Swiss-style decentralized defense, with citizen-spies instead of citizen-soldiers. Perhaps the president reviews the collected work of James Madison each morning before setting out to make policy -- or, even more formidable, the collected reverent references to Madison in National Review.

Or perhaps some of liberty's fair-weather friends are fickle pals of federalism as well.