With the biggest federalism case in decades about to be argued before the Supreme Court, the political left and right are clearly divided. Conservatives are hopeful that at least five justices will find the Patient Protection and Affordable Care Act unconstitutional. If that happens, liberals will condemn whichever justices constitute the majority as judicial activists of the worst sort. Is there any hope of ever overcoming this sharp political division on the nature of American federalism?
Writing in the Los Angeles Times, American Enterprise Institute scholar Jonah Goldberg argues that “a left-right federalist compromise would make America a happier, freer, more prosperous and interesting country.” Worthy outcomes, to be sure, so what would a “left-right federalist compromise” look like?
The idea seems to be that the now intractably partisan interests that rule Washington, D.C., might agree to more federalism (meaning less power in Washington and more power in state and local governments) if both sides believed that federalism would advance their interests. In other words, partisanship could lead to positive political results now generally thought to require bipartisanship.
Goldberg notes that Republican presidential candidates Rick Perry and Ron Paul have both advocated for less power in Washington and more power in the states (though Paul would also wish to limit state powers). For them, the objective is to give states more freedom to govern (or not) as they choose, thus freeing red states to be red and blue states to be blue, regardless of which party holds power in Washington.
This view has not prevailed heretofore because, since the New Deal, the left has seen centralizing power in Washington as the best way to pursue its agenda, while many on the right, once they gain control in Washington, are seduced by power to abandon their federalist allegiances. But now comes a leftist argument for empowering state and local governments and weakening Washington’s influence.
In a new article in Democracy Journal titled “A New Progressive Federalism,” liberal Yale law professor Heather Gerken argues that because minorities have little influence on the national stage but are often majorities at the local level, empowering local and state governments would empower minorities. This is essentially the same argument that Perry and Paul have made: that federalism gives people more control over their lives.
Giving people more control over their lives is surely a good thing, but it does not necessarily follow that greater state and local autonomy will assure greater individual freedom. As Goldberg vividly reminds us, “In a pure democracy … 51% of the people can vote to pee in the cornflakes of 49% of the people.” That is as true, though perhaps less likely, of local as it is of the national government. What matters to liberty is the extent of government power, regardless of who is exercising it.
Thus, we should be wary of embracing a concept of federalism that promises to replace the threat of national tyranny with the threat of local tyranny. The federalism contemplated by the framers of the Constitution divides power vertically, just as the separation of powers divides power horizontally, to the end that liberty is protected from the abuse that flows, inevitably, from the concentration of power. The point is to limit government power at all levels, not merely to substitute local control of our lives for national control of our lives.
Goldberg defines federalism as “the process whereby you push most political questions to the lowest democratic level possible.” Few students of American federalism will be familiar with that definition — it sounds more like the principle of subsidiarity often claimed to guide governance in the European Union (though one would not know it from the relentless centralizing of power in Brussels). But it is a useful reminder that the case for democracy is not that 51% of the people should be able to pee in the cornflakes of the other 49%. Rather the case for democracy is that, despite the risks of majority tyranny, it is the form of government that grants every citizen a vote on public constraints on individual liberty. If 51% vote to pee in the cornflakes of others, they do so knowing that a different majority may vote to pee in their Rice Krispies.
Federal systems have taken many forms for different reasons and with various purposes, but the point of American federalism is to protect liberty. Pushing most political questions to the lowest democratic level possible, as Goldberg puts it, does not stop with the county or city or school district. The lowest possible level is the individual and that is why a significant majority of Americans believe that Obamacare is unconstitutional. It is not that people would prefer to have their state or local government, as opposed to the federal government, mandate their purchase of health insurance. Rather they don’t think any government should be able to do so.
So, two cheers for a left-right coalition to promote shifting power from the national government to state and local governments. But reserve the third cheer for those who do so in the name of liberty, and be wary of those whose purpose is to empower new tyrannical majorities.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.