November 13th, 2014

Try Federalism, Not Federal Domination

From the moment it became obvious Tuesday’s Republican wave would make shore, media mouths began talking up the problems its leaders would face in converting a widespread rejection of Obama’s policies into a positive agenda. Given that the abusive centralization of power was the core of what the electorate was saying no to, leaders would do well to focus on restoring Constitutional federalism.

At America’s founding, decentralization of power—a federal system, rather than a national system, (better described as “The States, United solely for specified joint purposes,” than “The United States”)—played a key role in protecting Americans’ liberties from infringement. However, in America today, for every problem, real or imagined, a “federal father knows best” program is imposed or proposed, regardless of how individual, local, or varied Americans’ preferences are.


America’s founders did not envision the federal government as being involved in virtually any decision made by anyone, much less as the domineering senior partner for almost every decision made by everyone. As Alexander Hamilton wrote in Federalist 17: “all those things…proper to be provided by local legislation, can never be desirable cares of a general jurisdiction.” James Madison wrote in Federalist 39 that “the new Constitution will…be a federal, and not a national constitution,” and in Federalist 45 that “The powers delegated by the proposed Constitution to the Federal Government are few and defined…exercised principally on external objects.”

The current nationalization of every decision is blatantly inconsistent with individual rights and our founders’ federalism, designed to constrain national government to few, enumerated powers. Since Americans sharply disagree about what they want government to do, national imposition really means some political majority is empowered to impose its will on others nationwide, no matter the harm those tyrannized over bear. In contrast, federalism allows the “law and order” necessary to freedom to be provided without empowering national political domination.

Under federalism, the potential of voting with your feet into other jurisdictions limits the burdens majorities can impose on those who disagree. Even more, leaving arrangements to be made voluntarily in markets represents a democracy in which every dollar vote counts, without providing the ability to violate others’ rights.

As Dwight Lee put it, “the chief concern of the framers of the Constitution was not that of insuring a fully democratic political structure. Instead they were concerned with limiting government power in order to minimize the abuse of majority rule.” Or as R.A. Humphreys summarized, our founders “were concerned not to make America safe for democracy, but to make democracy safe for America.” And as Albert Jay Nock recognized, the expansion of the state is not an expansion, but rather a contraction, of social (voluntary) power, in which, “The State has said to society, You are either not exercising enough power…or are exercising it in what I think is an incompetent way, so I shall confiscate your power, and exercise it to suit myself.”

The Bill of Rights demonstrated the importance of limiting the national government’s ability to infringe on electoral minorities. It did not involve “positive” rights to receive things without an obligation to earn them, because extracting the resources to pay for them necessarily violates others’ inalienable rights to themselves and their productive efforts (called theft, unless the government does it).

The Bill of Rights defended “negative” rights–prohibitions against unwanted intrusions by government. Even its central positive right–to a jury trial—exists to defend individuals’ negative rights against railroading by the superior power of government. And the Ninth and Tenth Amendments made clear that all rights not expressly delegated to Washington do not rest there.

Government has no resources but those taken from citizens. Therefore, majority largesse is limited by how much harm the government can impose on involuntary “donors.” Federalism sharply limits that abuse, preventing the milking of the citizens those governments “represent” by more than the cost of leaving a state or municipality, rather than the much higher cost of leaving the country. This exit option is a central protection against government abuse when it is not eviscerated.

Power in America has been increasingly taken from individuals and local self-government, forcibly centralized in Washington. Federalizing everything, including plainly private and local choices, has not benefitted nor unified America, as indicated by the increasing intensity of the battles to control what is to be imposed on everyone. For Republicans to live up to the “no” they campaigned for with a positive agenda, they need to resurrect the Constitution’s federalism, leaving people to make their own decisions beyond the very few areas where their choices must necessarily be in common. Only then can they begin undoing the ever-growing gravitational pull of centralized political determination, which is tyranny, even when it is tyranny of the most recent majority.