Two Cheers for Federalism


Over at the Washington Times, Bruce Fein gives a long list detailing how the Democrats screwed federalism when they wuz in power. More interestingly, he then goes on a tear about the Republicans, who supposedly believe in federalism but have done exactly the same thing, concluding:

The Republican Party should return to the political enlightenment of Justice Louis D. Brandeis in New State Ice Co. v. Liebmann (1932): "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Whole thing here.

The only thing I take issue with is Fein's timeline: He suggests that the Reps didn't start cracking down on federalism until the '00s. I seem to remember Ronald Reagan–who campaigned on a "new federalism" platform–doing a pretty good job of centralizing power in D.C. when he had a chance. This he accomplished both through massively increased spending and, when he could, through policies that tied federal bucks to pleasing federal masters (for instance, that's the reason the drinking age went up to 21 during the 1980s). And, needless to say, federalism has been chipped away at pretty much since the ink on the Constitution dried. But kudos to Fein for calling bullshit on Republicans when it comes to federalism.

NEXT: Commuter Blues (Tuff Luck for Those in LA, SF, DC Edition)

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  1. Fein is a sociopath who supports state violence against children and the torture of adults. No respectable person shold ever cite him on any political subject.

  2. The examples cited in the article point to government-enforced morality at its worst. Our nation’s leaders often trample our states’ leaders because they get antsy around guns (Democrats) or believe that anyone associated with an abortion will burn in Hell (Republicans).

    I’m starting to think that the erosion of federalism is less a result of lust for power than an egotistical take on “moral leadership.” The liberals’ need for political correctness and the conservatives’ endorsement of “life politics” has only made things worse.

  3. I’m starting to think that the erosion of federalism is less a result of lust for power than an egotistical take on “moral leadership.”

    Exactly. They want to save people from themselves, and they believe that centralizing power in DC is the best way to do it.

  4. Is there any *a priori* reason why libertarians should particularly support federalism? Libertarianism is about individual rights, not states’ rights, and I would argue that if anything the states have a worse record on individual rights than the federal government.

    It is true that a state governrment’s limitations on freedom do at least affect a more limited number of people than similar violations by the federal government, and that those who don’t like what their state is doing can move to other states. But that is rather like saying that nineteenth century Europe was free because people who lived in despotic countries could always find refuge in Switzerland. And saying that states should have the right to experiment doesn’t sound so attractive when you are the person being experimented on…

  5. David T,
    Libertarians are largely federalist because most believe in the limits set by the constitution. While it may not be perfect, most libertarians understand that the constitution is the best defense to encroachments on liberty and once you start to concede extra-constitutional powers to the federal government in favor of liberty, you open the door to a myriad of powers that are the antithesis of liberty that outnumber and are more popular than the ones that expand liberty.

  6. or believe that anyone associated with an abortion will burn in Hell (Republicans).

    Aside from the recent partial birth abortion ban, all federal tinkering in the abortion issue has been on the pro-choice side. The “Freedom of Choice Act” and of course Roe v Wade itself are perfect examples of centralism run amok.

    Of course, that’s not to say that the party of pro-life rhetoric hasn’t violated federalism in plenty of other areas.

  7. I would qualify and add to Mo’s comments a bit. I don’t believe the constitution is an especially strong guarantor of liberty. I think it is mostly ignored at first convenience, in fact. There are lots of good ideas in the constitution, but I don’t find that appealing to the language in the document as being meaningful to anyone except those who already agree with its principles.

    Federalism is a good because it establishes a marketplace for regulation. A federalist landscape would allow joe to live in a place he likes and me to live in a place I like, which is better than a federally regulated place neither of us are especially fond of.

  8. I would rather say federalis appeals to libertarians for the same reason that individual liberty does. Choices should be made at the smallest possible level so that those affected have the most say possible in those choices. Hence any choice that can reasonably made by an individual should be left to that individual. Choices that affect cities should be made on that level.

    While in practice federalism may result in more restrictions on liberty locally, people will have the option to vote with their feet, and additionally have a greater chance of getting useful legislation passed on the smaller state level (Free State project anyone?)

  9. Just to add my variation on why libertarians should favor federalism: A unitary state is a totalising state. I think the greatest structural guarantee of liberty is divided and dispersed government power, whether divided among branches of government or levels of government. Federalism accomplishes that (or used to, anyway).

  10. I think that federalism has pragmatic advantages that, overall, outweigh its disadvantages (e.g. tyranny of the local majority).

    But let’s not kid ourselves by over-stating the advantages of “voting with your feet.” It sounds nice in theory, but in practice it doesn’t happen all that much.

    For instance, we’ve had threads before on the observation that NY has more regulations than Kansas, yet NY attracts more business than Kansas. Why? Because NY’s private sector is large, world-class, and entrenched. Not to mention the presence of an international port. The advantages of being near that private sector outweigh the disadvantages for the onerous public sector.

    Granted, there are plenty of individuals and businesses that thrive outside NY, but the fact remains that a lot of individuals and businesses find it advantageous to operate there. Maybe the biggest lesson to draw from this is that the government is (thankfully) rather insignificant in comparison to the attractions offered by a large and thriving private sector.

    Anyway, I guess my point is that we shouldn’t over-state the advantage of voting with your feet. Federalism has its virtues, but over-stating our case undermines the credibility of the argument.

  11. At the very least, passing legislation that may or may not be overturned by the courts is within the function of Congress. What really irks me are the true extra-constitutional controls like witholding federal highway funding for states who don’t have their drinking age set at 21. This cannot be reviewed by the courts, and is a clear power-grab on the federal level.

  12. TT,

    Yeah, about the only recourse the state would have would be to let an interstate that crosses through fall into disrepair and disrupt interstate commerce. Of course, few states would be able to do this without messing up in-state commerce as well; PA’s tiny section of I-90, which has a lot of Chicago/Cleveland – Boston traffic, would be one example.

  13. In light of Mr. Fein’s opinion of CIAN, I look forward to his joining the crusade to repeal Federal regulation of intrastate drug sales and the Mann Act, among other things.


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