Power & Market

The Highest Form of Federalism Is Antifederalism

When I was in grade school, I learned that America was a republic. There were checks and balances built into the political machinery of the country, our teachers taught us, and things like the Electoral College and indirect election of senators (now defunct) to insulate the body politic against the will of the fickle masses. Our American history textbooks had a fluttering American flag on the front cover, and the textbook pages were filled with text and images about our republican heritage and way of life.

But somewhere between grade school and grad school, America had turned into a democracy. It became retrogressive to insist, as I often did, repeating what I learned as a boy, that we lived in a constitutional republic. Then it became racist to do this (I still don’t quite understand how or why). All that mattered, somehow, was that America be more democratic. And not just in politics, but in everything. Democracy became a kind of mood lighting for institutions, corporations, sports teams, and social clubs. If you weren’t democratic, or at least working to be more so, then you were considered questionable in polite society, and then a positive danger to polite society. America a republic? I might as well have tried arguing that states have the right to secede (which I also did, and still do).

During the Trump years, this democracy-as-mantra phenomenon reached a fever pitch. Trump was anti-democratic, people kept insisting at me with very pained and worried expressions on their faces. He won the Electoral College by a landslide, but his opponent, Hillary “Dossier” Clinton, won the most votes overall, I was told. The country was in grave peril, apparently because the Electoral College was working just as it was designed. “Democracy Dies in Darkness” even became the masthead rallying cry of a famous American newspaper (owned by a distinctly un-democratic billionaire, but that’s a story for another broadsheet, I guess). Everywhere I turned, I heard people disclaiming the withering of democracy on the American vine. Anti-democratic forces were abroad, were smuggling in their malicious anti-democracy from Russia and other such reactionary places. “Democracy” had taken the place of “republic” not just in the political science trend-list, but in the zeitgeist overall. If you were for a republican form of government, you were bad. If you were for a democratic form of government—whatever that means, I still don’t exactly know—you were good.

But now, in 2021, I think another lurch has wracked our once republican republic, our erstwhile and ersatz democratic democracy. For autocracy is the name of the game today. Democracy really did die in darkness. Now we’re living in Creon’s Thebes. People don’t talk about democracy much anymore. What they want is results, and they want the president to issue proclamations to give those results to them, now.

This American flavor of tyranny is hardly a new development, to be fair. Long before Trump arose from the Pre-Cambrian oceans of flyover country to do a Godzilla number on Democracy, presidents Bush, Obama, Clinton, and many prior to their reigns had been making use of the Executive Order to bypass what were either, depending on your persuasion, republican or democratic norms. President Roosevelt used an Executive Order to put Americans in concentration camps during World War II. Roosevelt, still the grand champion of the genre, issued an astounding 3,720 other Executive Orders besides that one. Ulysses S. Grant issued 217 of the things during his time in the White House. Calvin Coolidge, you may be surprised to learn, issued 1,203 Executive Orders.

Old William Henry Harrison, the poor soul who died just a month after inauguration, ought to go down in history as the greatest American president, for he issued precisely zero Executive Orders during his tenure, making him the least autocratic chief executive of them all. But Harrison was the exception. What we have now is essentially rule by fiat, a slew of Executive Orders and other imperial rescripts with some democratic-republican bunting draped around the edges to make the kingly pretensions of our autocrats look nice and constitutional.

The progression (?) from republic to dictatorship is a twice-told tale, unfortunately. Rome springs immediately to mind. So does France. You can supply your own examples, I’m sure. But what is different about the American story, or should have been, is that America is supposed to be a federalist arrangement. We are supposed to have “little laboratories of democracy” called states, and those states are supposed to try out different ways of confronting the problems of our common political life. If and when one state hits on a good policy solution to a certain problem, then other states are supposed to copy that model, thus jazzing up efficiency across the board. That’s federalism, the political springiness to be able to adapt creatively to various challenges, and then to retool at various levels of government once bright ideas start to come online from the federalist R&D lines.

But if this is true, and if federalism is the flywheel of our republic, or democracy, then what are Executive Orders? How do we make sense of those? Aren’t those anti-federalist? Aren’t Executive Orders kind of statist? One guy, at a desk, signs a document, and more than three hundred million people fall in line? Or even more people, if the Executive Order has implications beyond the borders of the United States, which they often do. That doesn’t sound like federalism. It sounds like a federal employee grossly abusing his office.

Consider the so-called “vaccine mandate” which Mr. Biden is dictating to us born-free, red-blooded Americans. “Get this experimental serum jabbed into your arm, or OSHA will fine you fourteen thousand dollars a day,” Mr. Biden is reported to be contemplating threatening. Forget about the constitutionality of such a mandate, which is highly questionable. What happened to federalism? Why mandate from the top, when various states are working, even as we speak, on delivering an array of policy solutions to what is, after all, a pandemic, something which is affecting us all?

The governor of Florida, and the governors of many other states, are indicating that they will not comply with Mr. Biden’s diktat. That sounds a lot like real federalism to me. But then we are left with a quandary, because to be federalist it would seem that one must be anti-federalist, which under the current Hamiltonian-Madisonian dispensation doesn’t make a whole heck of a lot of sense.

The obvious answer seems to be that Hamilton and Madison got it wrong. Federalism is not federalist after all. That’s an irony, but not an unanticipated one. Before the Constitution was signed, there were many people in the United States who were Anti-Federalists.  They told Hamilton and Madison what they could do with their little Constitution. They saw, I think, what we are living today: if you take a whole bunch of mini-republics—call them “states” if you like—and put them together and put one man in charge of them all, then that one man is going to find a way to rejigger the republics so that more and more power will redound to the center, at the expense of the peripheries.

That is Hamiltonian, Madisonian federalism. That is, in other words, the federal government. It is a hulking, liberty-crushing beast precisely because the Founding Fathers gave us a political Voltron. They took a lot of parts and assembled them into a big machine. And that machine now rules us, just as one might have intuited, just as common sense would instruct. Give a man the means to power, and he will use those means to seize all power in his own two hands. That is human nature. The Federalists who pushed the Constitution on our forebears told us that they had solved that problem. This is precisely, however, what they did not do. We got played by Hamilton and Madison. We got punked by the people we were taught saved us from the clutches of King George III.

So here we are, with a vaccine mandate by a senile dotard (as King George III once was) whose main line of work is arranging massive payoffs for his not-quite-Picasso kid (something not even George III had the effrontery to try). It just wasn’t supposed to be this way. I’m pretty sure that what we have now is not what the Federalists intended, and especially not what they promised.

But it is not too late to admit that the Anti-Federalists were correct. We don’t have to worship at the Hamiltonian/Madisonian altar anymore. Apostasize from Federalism and be free! Because putative federalism is bunkum if it isn’t anti-federalism. Anti-federalism, indeed, is the highest form of federalism. “Take this union and shove it” is the ultimate safeguard of freedom. If you can’t walk away from a bad relationship, then the relationship is not just bad, it’s also abusive. If you can’t veto, with your turned back and walking boots, an arrangement that is just not working anymore, then you are little more than a slave. You are a slave, in fact. Because slaves have no vocabulary but, “Yes, sir.” And vis-à-vis the White House, neither now do we.

I wrote recently in these pages about the “constitution of no authority,” the insights of a great American named Lysander Spooner.  Spooner showed us that we don’t have to swallow the rhetorical hook, line, and sinker of constitutional claptrap. We don’t have to pretend that we owe it to the government to let it dictate terms to us. We are free men and women. We are better than that.

In that same spirit, I advocate now for anti-federalist federalism. Not because I’m against federalism, but because I am very much for it. I want there to be a scintillating mosaic of tiny republics, or monarchies, or anarcho-capitalist confederacies, or hippie communes, or agricultural cooperatives, or whatever. Even a “democracy” here and there so the rest of us can visit and have that nonsense shocked out of our systems from time to time. Let a hundred flowers bloom on the political veldt. Let federalism shine.

But let us have no more federalist federalism. That is the recipe for tyranny. That concentrates all the power into the center, precisely where power should never, ever be. Anti-federalism is real federalism. It is the right, born of human dignity, to walk away from “vaccine mandates” and all other manner of power-drunk devilry that the tyrannically inclined among us will always try to pull off.

Anti-federalism, my friends. For liberty. For a better America.

Let the governors of the states escort OSHA agents, and all other federal representatives, to the state line. State by state, until the federales are back in DC, properly scorned and ignored by the freeborn, as they ought to have been in 1789 and forever after.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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