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Freedom and Federalism

June 30, 1999

Diversity is the catchword of our times. To favor it is to be on the side of the angels. But take
notice: the diversity mavens have no use for pluralism in political jurisdiction. What they want is
an almighty unitary state to enforce their view of diversity, one that prevents localized
experimentation.

That’s one explanation for the liberal outcry against the Supreme Court’s recent decisions on the
relationship between the federal government and the states. The court is "rewriting the very
structure of our government," claims Anthony Lewis in the New York Times, wrongly assuming
that most people would be alarmed by this.

In fact, the court is merely permitting the states to recover some of their lost jurisdictional rights
relative to the central government, with the result of greater legal and political diversity. The step
was very small: the court affirmed that state governments cannot be sued on the basis of federal
law in their own courts. If it were otherwise, Justice Anthony Kennedy pointed out, the
Constitution would have never been ratified, since this kind of legal attack on states obliterates
their autonomy.

This is a point consistent with federalism, which is not merely an ideological bent or a legal
theory, as media commentators would have it, but the very substance of the American system.
This is clear from the text that forms the basis of the majority’s opinion, the 11th amendment,
which says "the judicial power of the United States [singular] shall not be...prosecuted against
one of the United States [plural]...."

The underlying philosophical assumption is that a free society does not need to be, and should
not be, managed from the top down. The closer the units of government to the people, the
greater the check on the potential for tyranny. Legal regimes among the states compete for
citizens, and the risk of despotism is thereby reduced. Most important, sovereign states act as a
bulwark against the central government.

The framers of the Constitution regarded themselves as citizens of their respective states, and
these states came together to form a government with strictly limited functions, among which was
not the right to bind the states with federal labor dictats. Some founders like Patrick Henry
presciently argued that the Constitution didn’t include enough protections against tyranny. He
wanted, among other reforms, the phrase "We, the People" changed to "We, the States."

Nevertheless, under the framers’ system, the states compromised separate political units, with
different laws, cultures, religious populations, and even rights of citizenship. This core federalist
understanding was enforced by the right of secession, which was understood to be retained by the
people in their respective states. The result was a model of political diversity, in which the
president was largely a figurehead and no tax or regulatory agency had any rights over the liberty
and property of the people.

The US took a terrible turn when it abolished this original idea, beginning in 1861 and
continuing to this day. In fact, if the framers made a mistake, it was in codifying the existence of a
central government, which all of history has shown will eventually abuse its power. The Articles
of Confederation, which the Philadelphia Convention overturned, at least didn’t trust a central
government to obey the rule of law.

Today, checks on the federal government are all the more necessary since the number of states
has expanded by nearly four times, and the geographical space encompassed by the United States
is far larger than a nation-state should be. Ideally, the US would again become a model of
decentralized politics even as its economic and cultural influence becomes more international.

But somehow the usual suspects put aside their love of pluralism when it comes to the court. In
their view, the only role for the court is to further centralize the government. It’s tempting to take
comfort in the outrage of liberals at current court trends, but in truth, the recent decisions, and,
in particular Alden v. Maine, come nowhere near genuine federalism.

The letter and spirit are summed up by the majority: "Congress has vast power but not all power."
It’s hard to know whether to celebrate the court’s sudden recognition that the totalitarian state is
impermissible, or to be outraged that such a sentence would need to appear in an American court
decision.

The wording illustrates just how far we’ve slid, and how far we have to go to recapture lost
liberties. At minimum, a truly federalist court needs to strike at the heart of the New Deal, and
strip away the power the central government grabbed in the guise of the commerce clause and the
14th amendment.

If we are serious about restoring something like the original Constitution, the whole DC pea
patch has to be ripped up and plowed under. Even the centralizing liberals on the court recognize
that the federal government is nothing like what the founding generation imagined:

"If the framers would be surprised to see states subjected to suit in their own courts under the
commerce power," writes Justice David Souter in his dissent, "they would be astonished by the
reach of Congress under the Commerce Clause generally. The proliferation of government, state
and Federal, would amaze the framers, and the administrative state with its reams of regulations
would leave them rubbing their eyes." Indeed, imagine "the framers' surprise at, say, the Fair
Labor Standards Act, or the Federal Communications Commission, or the Federal Reserve
Board...."

Yes, David, which is precisely why the court hasn’t gone nearly far enough.

* * * * *
Llewellyn H. Rockwell, Jr., is president of the
Ludwig von Mises Institute in Auburn, Alabama.


See also "Toward Real Federalism" by Clyde Wilson.


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