The “realists” are an arrogant lot who reject the nation’s founding principles. They teach that the Constitution should not be interpreted as the Framers intended—limiting the authority of the federal government through “negative rights,” that is, the right not to be abused and coerced by the government; instead, they urge that the Constitution be interpreted as compelling the government to enforce “positive rights,” that is, “economic and social justice” or “the Second Bill of Rights.” The “realists” plot to transform the civil society through the judiciary—without the consent of the people and without regard to the Constitution. And they are well positioned to do so. There is no denying that the judiciary has assumed the role of final arbiter of the Constitution and that the other branches have acquiesced. As such, the judiciary encourages this kind of pernicious delinquency.
The judiciary today behaves in the manner of an ongoing constitutional convention, unilaterally amending the Constitution almost at will. A majority of Supreme Court justices have, on occasion, even justified the use of foreign law in interpreting the Constitution.23 The application of customs, traditions, and values that attach to foreign cultures and laws provides no legitimate insight into America’s Constitution and diminishes the contemporary role of the state and federal representative branches in writing America’s laws and amending (or not) the Constitution. The arbitrary application of foreign law—which provides an activist justice with an infinite smorgasbord of legal options—is a rejection of the predicate for America’s governmental system. And it lasts only as long as the next opinion.
In 1850, French philosopher Frédéric Bastiat, writing about the law, summed it up well:
[W]hen [the law] has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.24
5
ON FEDERALISM
IN THE SUMMER OF
1787, when delegates from twelve states met in Philadelphia to rewrite the Articles of Confederation,1 there were many passionate, detailed debates over the power and scope of the new federal government and the importance of preserving and protecting existing state authority. The Framers knew they needed to replace the Articles, for they did not establish a workable governing system in which the federal and state governments could coexist, each with their own discrete functions and independent—yet in other ways, interdependent—authority. The Framers determined that only in limited areas—including national defense, immigration, issuing currency, raising revenue to operate the national government, foreign relations, resolving conflicts between states, and certain other specific, enumerated circumstances—could the federal government have primary if not exclusive power. In all other respects, the states retained their authority. The Tenth Amendment generally underscores the division of authority between the federal and state governments:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.2
But what was the purpose of this new “federal” system? Along with limiting federal power and separating that power among three competing branches, the federal system would help ensure that the Revolution’s principles, as set forth in the Declaration of Independence, and the civil society itself would be safeguarded.
States are governmental entities that reflect the personalities, characteristics, histories, and priorities of the individuals who choose to inhabit them. They have diverse geographies, climates, resources, and populations. No two states are alike. The same can be said of the cities, towns, and hamlets within the states, which number in the tens of thousands and dot the nation’s landscape.
States are more likely to better reflect the interests of their citizens than the federal government. Localities are even more likely to better reflect these interests because the decision makers come from the communities they govern—they are directly affected by their own decisions. Moreover, the interaction between the people and their representatives at the state and local levels is easier and more direct. When the federal government acts beyond its constitutional limits, it assaults the purest form of representative government by supplanting representative decision making at the state and local levels. The federal government cannot possibly comprehend the diversity of interests that are affected by its decision making. It cannot adequately weigh the costs and benefits of its decisions on communities. Besides, that is not its purpose. It seeks to dictate rather than represent.
Federalism has other profound benefits. As Associate justice Louis D. Brandeis wrote, “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.”3
For the Framers, “experimentation,” like change, was a matter of prudence. As previously described, change should be informed by the experience, knowledge, and traditions of society, tailored for a specific purpose, and accomplished through a constitutional construct that ensures thoughtful deliberation by the community. Change unconstrained by prudence produces unpredictable consequences, threatening ordered liberty with chaos and ultimately despotism, and placing at risk the very principles the Conservative holds dear.4 Therefore, while Brandeis was right to acknowledge the import of states in experimenting with public policy, his use of the word novel suggests open-ended or unconstrained experimentation.
Whatever kind of experimentation states and local communities may engage in, it is correct to say that they serve as useful examples for adoption, modification, or rejection by other states and localities. In the 1980s, Oregon’s welfare reform experiment was so successful that it became a model not only for other states, but also for the federal government.5 Milwaukee’s experiment with school vouchers sparked similar efforts across the country.6 Experimentation properly understood is a dynamic characteristic of federalism, which exists among, between, and within the various states. That is not to say that all experimentation produces desirable results. When Maryland passed a computer-services tax, its burgeoning technology sector threatened to relocate to neighboring Virginia, which had no such tax.7 Maryland repealed the tax.8 But other states learned from Maryland’s experience.
Mobility is perhaps the most important aspect of federalism. If the individual concludes he is hopelessly bound by what he considers to be a harmful decision by state or local authorities, he may, in the end, choose to live elsewhere—where the economic, cultural, or social conditions are more to his liking. Indeed, throughout American history, individuals of all races, ages, and income levels have moved from one state to another, either because they are escaping adverse conditions, or simply because they are seeking greener pastures. For example, today large industrial states, which burden their citizens and businesses with high taxes and excessive regulations, are depopulating themselves. Individuals are taking their assets and moving to other parts of the country. Some are moving to states like Florida or Nevada because they have no income tax, or they are relocating their businesses to Alabama because it is a right-to-work state. People move to different states for infinite reasons. Federalism promotes decentralized government, which empowers the individual to choose whether to stay in one place and try to influence the state and local decision making or to take up residence in another state or locality. There is no escaping the reach of the federal government, however, unless one gives up on the country altogether and leaves for other shores.
; Federalism also defuses conflict and even promotes harmony. A strong proponent of the death penalty can live in Texas, which has the most active execution chamber, and not care much that New Jersey just abolished the punishment. Individuals with widely divergent beliefs are able to coexist in the same country because of the diversity and tolerance federalism promotes.
However, one of the most dramatic events undermining state constitutional authority came with the ratification of the Seventeenth Amendment on April 8, 1913.9 The Seventeenth Amendment changed the method by which senators were chosen, from being selected by the state legislatures—ensuring that the state governments would have a direct and meaningful voice in the operation of the federal government—to direct popular election by the citizens of each state. A rising tide of progressivism and populism resulted in enough states ratifying the amendment that they largely disenfranchised themselves from the federal lawmaking process.
Even with the elimination of their direct representation in the Senate, the states independently possessed considerable authority under the Constitution. Consequently, for the Statist, federalism, like free markets and private property, remained a major obstacle to amassing power. Therefore, he would have to subvert the Constitution to achieve his ends—which he did.
The Constitution’s interstate commerce clause had as its purpose the promotion of commerce and trade among the states.10 However, in 1942 the Supreme Court ruled in Wickard v. Filburn that a farmer growing wheat on his own land and for his own use was still subject to federal production limits, even though none of his wheat ever left the state.11 The Court “reasoned” that by withholding his wheat from commerce, the farmer was affecting interstate commerce, even though there was no commerce, let alone interstate commerce. This meant that private economic activity conducted for the sole purpose of self-consumption and occurring wholly within a state’s borders would now be subject to federal regulatory authority under the Agricultural Adjustment Act.12 Wickard swept away 150 years of constitutional jurisprudence, decentralized governmental authority, and private property rights protection. And with it the judiciary seized a role for itself—the manipulation of law to promote a Statist agenda—that continues to this day. Indeed, through a succession of laws and rulings, all three branches—the judicial, the legislative, and the executive—now routinely exercise power well beyond their specific, enumerated authority under the Constitution.
In many respects, the once-powerful states, thirteen of which ratified the Constitution in the first place, have themselves become administrative appendages of the federal government. It is not enough that the federal government exercises authority reserved to the states, but it also blackmails the states to implement its policies by threatening to deny them “their fair share” of federal tax dollars should they object. In fact, so complete is the federal government’s authority over the states that it heavily regulates and even monitors them to ensure their compliance with federal dictates. Does anyone believe that the states would have originally ratified the Constitution had they known this would be their fate?
The Statist has also constructed a Fourth Branch of government—an enormous administrative state—which exists to oversee and implement his policies. It is a massive yet amorphous bureaucracy that consists of a workforce of nearly 2 million civilian employees.13 It administers a budget of over $3 trillion a year.14 It churns out a mind-numbing number of rules that regulate energy, the environment, business, labor, employment, transportation, housing, agriculture, food, drugs, education, etc. Even the slightest human activity apparently requires its intervention: clothing labels on women’s dresses,15 cosmetics ingredients, and labeling.16 It even reaches into the bathroom, mandating shower head flow rates and allowable gallons per flush for toilets.17 It sets flammability standards for beds.18 There are nearly one thousand federal departments, agencies, and divisions that make laws and enforce them.19
The official compilation of rules issued by the federal government, the Federal Register, contained 74,937 pages of regulations in 2006. Tolstoy’s War and Peace, only 1,400 pages in length, seems as light and airy as a romance novel by comparison. The rules in the Federal Register are written in a dense and confusing style, often confounding the lawyers, accountants, businessmen, and others required to digest them. The estimated cost of simply complying with these regulations was $1.14 trillion.20 The National Taxpayers Union estimated that in 2006, U.S. businesses and individuals spent 6.65 billion hours struggling to comply with the complexities of the tax code, at a cost of $156.5 billion in lost productivity for businesses alone.21
All branches of the federal government, elected and unelected, have consumed more and more of the governing authority of states and localities, leaving them less room to exercise their discretion. In doing so, the federal government is imposing its will directly on communities and citizens in contravention of the Constitution. Consequently, there has been a fundamental breakdown of the federal system.
Having spent decades fighting and losing legal challenges to federal encroachment, states have for the most part accepted the role the Statist has assigned to them. Many governors have become politically expedient on the subject, arguing schizophrenically for federal intervention while defending state preeminence. Even worse, a type of crony federalism now exists whereby states lobby the federal government for advantage or relief. It works like this: States convince the federal government to fund projects within their own borders by taxing the citizens of other states. In the name of stimulating the economy, states, counties, cities, and towns have compiled long lists of pork projects they want paid for by the federal taxpayer. They are also asking the federal government to bail them out from their own deficits. For the Statist, the voluntary surrender of state and local authority to the federal government is to be encouraged. Moreover, states with more onerous regulatory standards often urge the federal government to impose those standards on other states to “level the playing field.” (Individuals, unions, and businesses also seek federal intervention to supplant state decisions that they do not like.)
The Statist’s most successful rhetorical attack on federalism involves slavery and civil rights. He asks, “How can the Conservative defend federalism when state governments were responsible for enslaving and oppressing African-Americans?”
It is a misreading of history to singularly condemn federalism for slavery. While there is no debating or excusing that southern states sanctioned slavery, at times they did so with the help of the federal government. Moreover, there is also no questioning that other states, mostly in the North, instituted policies and laws not only prohibiting slavery within their own borders, but defying efforts by the southern states and the federal government to enforce slavery in the South.
For example, prior to the Civil War, and at the behest of the southern states, in 1793 and 1850 the federal Fugitive Slave laws were enacted to force recalcitrant northern states to return escaped slaves to their southern owners. Many northern states resisted by passing personal liberty laws, which created legal obstacles to the deportation of slaves back to the South. In the 1842 Prigg v. Pennsylvania case,22 the federal Supreme Court ruled these laws unconstitutional, arguing that they sought to preempt federal law, although it added that the northern states were not required to affirmatively assist the southern states that sought the return of escaped slaves. In 1857, the Court ruled in Dred Scott v. Sandford23 that no slaves or descendants of slaves could be U.S. citizens, and that Congress’s Missouri Compromise of 1820, which prohibited slavery in much of the new territories, was unconstitutional, for it denied slave owners their personal property rights. As a result, the Court not only denied the slave the ability to escape one state’s tyranny for another state’s freedom—a direct assault on a critical aspect of federalism, mobility—but it actually expanded slavery throughout the country, which helped precipitate the Civil War. Furthermore, not until 1862 did the federal government abolish slavery in the District of Columbia, which was wholly control
led by federal authorities. Therefore, the Statist can be asked, “How can you defend an all-powerful federal government, given its role in promoting slavery?”24
Slavery was a contentious issue not only between the states, but also within the states—including in towns and counties in southern states. It was contentious not only between the federal government and the states, but within the federal government—as between Congress and the president, and between the elected branches and the Supreme Court.
The oppression of African-Americans was never compatible with the civil society, although some northern state delegates recognized this fact and sought to abolish slavery at the Constitutional Convention. The southern states would not unite behind such a constitution. It is all the more remarkable, therefore, that certain compromises were reached with the southern state delegates respecting slavery. The constitution they adopted empowered Congress to prohibit the importation of slaves to the United States in twenty years’ time,25 which it did. It reduced the influence southern states would have in the House of Representatives by counting slaves as three-fifths persons for the purpose of apportioning seats.26 Unfortunately, the southern states did succeed in inserting language requiring the return of slaves who escaped to other states.27 However, the Constitution did not, as some contend, compel the practice of slavery.
But it must be emphasized that had not the Constitution been adopted, and had the southern states either formed their own nation or simply existed on their own, the institution of slavery would most certainly have survived longer than it did. There would have been no southern state secession because there would have been no union of northern and southern states in the first place. The Constitution’s ratification by the southern states would ultimately mark the beginning of the end of slavery—coming to fruition with their defeat in the Civil War and the subsequent adoption by Congress and the states of the Thirteenth (formally abolishing slavery), Fourteenth (prohibiting the abridgment of citizens’ rights), and Fifteenth (prohibiting race as a bar to voting) Amendments to the Constitution.