Nick Gillespie on Stossel Tonite, Talking Fair-Weather Federalism!

I'm happy to announce that I'll be appearing on John Stossel's eponymous Fox Business show tonight.

It airs from 9 p.m. to 10 p.m. Eastern Time and looks at the continuing relevance (or not) of the Constitution.

Other guests include The Blaze's Glenn Beck, Project Veritas' James O'Keefe, and the Pacific Legal Foundation's Timothy Sandefur.

I'm talking about the long and storied tradition of "fair-weather federalism." Who would have guessed that politicians' attitudes toward a strong central government or devolving power to the states change depending on which arrangement helps them out on any given issue?

There's lots of interesting talk about the Bill of Rights, especially the First Amendment which Stossel notes "made my career possible. It allowed me to expose crooks and cheaters. Once, I had a female producer take my urine to two abortion clinics who said I was pregnant!"

More details here.

Comments

[Greg83]

That's cool Stossel supports the First Amendment. Too bad he couldn't care less about the Fourth.

[sarcasmic]

Whatever happened to "shattering conventional wisdom" in the intro?

[Notorious G.K.C.]

Wait, wait, wait...there are crooked abortion clinics?

[Bo Cara Esq.]

Crooked?

Don't you mean EVIL?

[Notorious G.K.C.]

Ignore the sound of wind whistling over your head.

[John]

How about we repeal the 14th Amendment and go back to the BOL only applying to the Federal Government? That sounds radical but if the federal government no long had the duty to ensure that states properly protected federal rights, it would be a lot less powerful. Do that and repeal and rewrite the necessary and proper clause making it clear the Feds can only do act in areas enumerated in the Constitution. If it doesn't directly relate to interstate commerce (as in ensuring a national market) or national defense or running the post office or whatever, they can't do it. No more "the feds can do anything that furthers the general welfare bullshit".

That would be a real return to federalism.

[Square]

But, I've been told that if we do that, slavery will return.

[John]

That is right. And none of the state constitutions have any provisions protecting basic rights. Nope. They all say that the black man will return to chains the moment the federal government allows it.

[Grand Moff Serious Man]

Don't you live in commie Maryland? Are you really sure you want to stake the protection of your rights to the nice, well-intentioned people in Annapolis?

[John]

I seriously doubt they would repeal the freedom of speech provision in the Maryland Constitution. And if they did, I would just move, along with a lot of other people. Since people are free to move to other states, the blue states wouldn't be able to create the tyranny their leftist politicians have so many wet dreams about. Tyrannies only work if you can close the borders.

[Bo Cara Esq.]

Instead of giving people the only resort of moving if their states trample their basic rights, how about state governments limited in ways that leave those rights intact?

[John]

Because the price of that is an all powerful federal government. Once you admit to the principle that it is the federal government's job to correct injustice in the states, you have lost the argument. You think this or that is an injustice. Okay, other people think Mississippi not funding their schools the same as other states is an injustice. Why are they wrong and you right? There isn't any reason other than you think guns are important and they think schools are.

[Bo Cara Esq.]

"Because the price of that is an all powerful federal government."

That's a false choice, one largely solved by the Founders actually, who created a system where the federal government can check the states and the states can check the federal government.

[John]

No its not. And the Founders created the system I am advocating. They didn't pass the 14th Amendment and apply the BOL to the states until after the Civil War.

The founders understood exactly the dangers I am describing and thus didn't apply the BOL to the states. And when they passed the 14th Amendment, some people warned that it would end up being the end of federalism. And 150 years later, even I have to admit, they had a point.

[Bo Cara Esq.]

The Constitution the Founders set up had federal restrictions on the states as well.

[antisocial-ist]

Yes, they had to have republican forms of government, courts, and trial by jury. They did not authorize the feds to right every wrong of the states, and for good reason.

[Juice]

I've said this before, but in my view the plain language of the BOR (coupled with the supremacy clause) means that the BOR applied to the states from the get go. Except for the 1st, which illustrates what I mean. If the BOR only applied to the feds, then why the special language in the 1st that made an exception for the states?

[John]

That is a reasonable interpretation Juice. But the people who wrote the document and those who ratified it, didn't view it that way. They never intended the BOL to apply to the states and never did apply it until after the 14th Amendment.

[Juice]

I don't know what the drafters intended when they put in the BOR or what the states had in mind when they ratified it, but it took a court decision (in the 1820s or something) that said the BOR only applied to the feds. Even though (plainly in my eyes) the privileges and immunities clause of Art. 4 Sec. 2 says that it does.

[Dr. Fronkensteen]

Bill of Lading? Just what are you transporting there?

[Calidissident]

Was the federal government really all-powerful after the Civil War? The vast majority of government overreach is justified under the general welfare, commerce, and necessary & proper clauses, none of which are part of the 14th amendment. Federalism is a means to an end, not an end by itself. I have no problem with the Feds protecting key rights from state/local infringement.

[Calidissident]

Also, the Jim Crow south disproves your last statement (many black people left in the great migration, but obviously many did not).

[Grand Moff Serious Man]

Not slavery, but good luck exercising your First Amendment rights or being secure in your persons, papers, and property from the cops.

And sorry blue state gun owners, you're SOL.

[Grand Moff Serious Man]

No, states should not be permitted the broad power to trample people's rights. I'm all for the Feds enforcing the Equal Protection Clause of the 14th.

If we are dreaming up dream scenarios, then I'd like to see the brutal dismemberment of Wickard v. Filburn and a return to the Lochner era. Liberty of contract for all!

[John]

The states generally are not. State Constitutions are often more protective of rights than the federal one. The state constitutions generally protect every right the federal one does. People often forget that.

Yes, some states like New York or California would do all kinds of lousy things if freed from the federal yoke. But some states wouldn't. And you would no longer have the federal government doing all of the horrible things its doing.

[Bo Cara Esq.]

"some states like New York or California would do all kinds of lousy things"

Not just them. Hello sodomy bans in Texas, for example.

[John]

Don't live there. I am pretty sure California won't enact such a ban. And if you see the federal government as the great avenger and protector of all things good, then why do you want federalism? If you want a strong federal government to stop states from doing things you don't like, you should like the system we have now. Your problem is not with having a powerful federal government. Your problem at most is that this powerful federal government isn't giving you your pony.

[Bo Cara Esq.]

I like a limited federal government and limited state governments.

[John]

No. You like a limited federal government that does things you like. Good for you. Other people like it to do different things.

[Idle Hands]

Please BO nobody is going to be arrested for sodomy in Texas.

[Bo Cara Esq.]

Idle, meet John Lawrence and Tyron Garner.

This is the same state that has a law and recently arrested someone under it for selling vibrators.

[Agammamon]

Yeah, I have to agree here - if there's a law against it there's a prosecutor with so little shame that they'll take that case.

[Bo Cara Esq.]

So long McDonald v. Chicago, among others.

[John]

This is true. But so long to the federal firearms control act too. If New York wants to ban all guns, I wish them luck. There will be plenty of states that don't. Lets see which states do better.

[Bo Cara Esq.]

Goodbye challenges to affirmative action like at UT.

[John]

Not true. The Texas Constitution has equal protection and non discrimination provisions. And I like the odds before the Texas Supreme Court better than before the federal one.

[Bo Cara Esq.]

Why do you think Ms. Fisher brought her suit to federal court and not Texas state court then?

[John]

Because winning in federal court gets you attorney's fees and winning in state court doesn't.

[Bo Cara Esq.]

Whu?

[John]

Yes. If you win a civil rights suit in federal court you get attorneys fees. If you go to Texas State Court over such issues, you can win but you won't be collecting such fees. Thus, people rarely bring suit under state constitutions even though their protections are often greater than those of the federal one.

You amaze me with how little you know sometimes.

[Every Cop is a Criminal]

The fuck is the BOL?

[An Innocent Man]

Glenn Beck? So, they don't want me to watch?

[Fist of Etiquette]

A Stossel post on the day of the show? Could this be enough to lure Team Stossel Live Blog out of retirement?

[Lord Humungus]

Is that Stossel's face when he saw STEVE SMITH lumbering out of the woods?

[Fist of Etiquette]

It Freddie Mercury's face when he saw John Stossel driving his government golf cart.

[Bobarian (dinosaur hunter)]

Either way, somebody was gettin' raped.

[Juice]

I don't know what's meant by "fair weather federalist" but I consider myself one. When the feds are out of line I would like to see the state step in and interfere or "nullify". When the states are out of line, then I'd like to see the feds step in and stop it. I don't care what it takes, as long as freedom is increased or preserved.

[John]

That can be a slippery slope. What is the difference between that and just saying "I want the feds to make sure the states do what I like"? Not a lot in many cases.

[Juice]

Thankfully the constitution and courts do provide SOME measure of limitation on the government. Anyway, there are slippery slopes in any scenario. Powerless fedgov with all powerful states? That doesn't sound too great. The scenario where the feds and the states are mostly equal and can check each other when one starts to abuse the rights of the people is the best you could hope for under the current constitution.

[antisocial-ist]

I know this is a somewhat popular position, but I honestly don't understand it. You can't just say " I want freedom and I don't give a damn how I get it". It's like saying I want to somewhere but have no idea how to get there. All you have is a wish, not a plan. Every time the nazgul make a ruling we like, libertarians celebrate. I do too, to some extent, but what the SC is really saying with all of those rulings is "This is now under Federal control". Do you really think the feds are going to give you what you want? When they don't, what will you do then. You can't move without completely leaving the country, its much harder to vote out federal pols(assuming you even get a vote in the people causing the problem). In the end you're just feeding leviathan and hoping it doesn't decide to crush you.

[Juice]

Do you really think the feds are going to give you what you want? When they don't, what will you do then.

I don't have any guarantee that any government will do what I want. Right. I have a wish and not a plan, because any plan I may have is useless because I am powerless. So all I can do is cheer when freedom is preserved or increased and cry when it's decreased.

[antisocial-ist]

I don't have any guarantee that any government will do what I want.

True, but under which system is it more likely that freedom will be protected?

Consider this, the federal government can

1. Make leaving their jurisdiction prohibitively expensive, with very few options on where to go.

1a. This makes it much easier to tax people at higher rates. The money from which can be used to control states.

2.Inflate its way out of debt, thus making spending almost completely unchecked.

3.Take advantage of economies of scale more so than state or local governments.(Imagine if every small town had to pay all the cost of enforcing drug laws themselves)

[Calidissident]

There's a difference between supporting the Feds stopping states from infringing on basic rights, and supporting an all-powerful leviathan. As I said above, the vast majority of government overreach is not justified on 14th amendment grounds. And whatever bad has come from it is nowhere near as bad as Jim Crow, which was ended by laws justified legally by the 14th, not to mention cases involving states infringing on rights in the BOR.

[antisocial-ist]

Let me put it this way. Pretty much every nation on earth abuses the rights of its citizens in some way. Would it be better or worse to empower the UN to arbitrate what nations cannot do, and by extension what they must do?

[Calidissident]

That's not an apt comparison because the UN is not a country like the US is. If we are assuming that the UN is now the only country on Earth, I would want citizens to have legal protections from all levels of government.

[Fist of Etiquette]

Finally, Gillespie shows up. But under the fold.

[Fist of Etiquette]

Translation: Gillespie wants slavery legal!

[Fist of Etiquette]

Right to privacy of my gas hole.

[Fist of Etiquette]

No wig. Unless he's wearing somewhere other than his head.