(Author’s Note: With school starting I’ve hit a bit of a lull in my blogs recently, and during the school year I’d like to transition to more of an as-it-happens-reaction format. Before we get there, I’d just like to tie up some loose ends in regards to my analysis of the US constitution’s strengths and weaknesses. These blogs are less fun to write, because they’re much less opinionated and much more fact-oriented; I’ve already proposed how I think the constitution should read, and now I’m merely analyzing how it does read. Nevertheless, I think this is important for establishing the constitutionality of policy going forward, so just tune me out if you’re tired of the topic. I’ll revisit three issues I discussed in the abstract, applying them to the American constitution specifically. Those issues are Federalism, the directness of Democracy, and the concentration of power. As you can tell from the title, this post will deal with federalism.)
When I advocated for Federalism this summer, I cited five main advantages that it provided:
- It enhances political efficacy by giving each individual a larger say in how he is governed.
- It maximizes the number of voters who get their way.
- It allows the law to be custom tailored to fit local nuances and practical realities.
- It enables regional governments to serve as laboratories of democracy.
- It separates the government’s power without reducing it on sum, enabling it to perform necessary functions without concentrating too much power in one place.
To make a long story short, the framers pretty much agreed with me on these points. There was some disagreement on which powers were federal and which were state, and those (like Hamilton) who felt federal power should be virtually unlimited felt the federal government should always trump. But within their specified scope, the autonomy and individuality of the state governments was never seriously questioned during the convention. And in the final result, the constitution clarified the distinction between state and federal power rather bluntly in the 10th amendment:
“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.”
Like much of the constitution, this is trampled on today, but in theory that’s the way it’s supposed to work. Additionally, each of those states retain the ability to erect subsidiary governments at the local and town level, which all of them did and all of them do today. The people were left free to choose not only who would run the country, but also who would run their town council, or (eventually) their schools. These latter decisions were deemed much more important in people's daily lives, because they were supposed to have more power over local affairs than the federal government did. Federalism is an integral part of the US constitution, which is a very good start.
However, I do wish there were substantially greater limits on state power than there are. I just finished a friggin’ dissertation on why enumerated powers are a superior protective device for liberty than open-ended powers are. Unfortunately, the state governments were not designed with enumerated powers, and as such, they can be dangerous to liberty even when they operate in legal ways. The constitution granted state government expansive powers limited only by explicit constitutional constraints (particularly those in the Bill of Rights). The Supreme Court has taken it upon itself to determine which of these rights are “incorporated,” for the state governments, and which limits apply only to the Federal.
As a libertarian, I’m obviously for full incorporation, because additional restrictions on the state governments are fine by me. Ideally, I’d go even further; I’d have the state powers be enumerated too. I don’t like the “do whatever you want, so long as it’s not banned” approach for state governments any more than I like it for national governments, since I don’t want states to oppress people either. However, I also recognize this system was politically unavoidable at the time of ratification, and for the time being, it still is. People still enjoy the ability to pass virtually any law they want at the local level. Sometimes these laws are oppressive and morally imperialistic and backwards and highly illegitimate, but supposing they don’t violate the limits placed on those powers (bill of rights, due process clause in the 14th amendment, habeas corpus, etc.), I have to admit they are at least constitutional.