Want More Unity And Freedom? Try Returning To Constitutional Federalism Gary M. Galles
The current electoral cycle has featured a political culture in which candidates and their partisans claim to be advancing unity, but the primary form of the unity advanced is agreement among some that they want what does not belong to them or to dictate what others can do, and that they want government to “make it happen.” Unfortunately, that is not the kind of widespread unity that benefits “we the people.”
That is what recent events, from the attempted assassination of Donald Trump to Joe Biden’s argument for why he was staying in, then getting out, or the race, to Harris’s promises to unify people by giving them even more federal “something for nothing” have only turbocharged.
But as long as the dominant political culture remains unchanged, and even more so if it intensifies, all those self-depictions of being unifiers will remain empty promises. If we really wanted more unity in the sense used outside current politics — general agreement, rather than some who agree to harm others for their purposes — we would be well advised to revisit the federalism designed in our Constitution, because of the limits that places on the latter usage.
At America’s creation, a decentralization of power — a federal system, rather than a national system, (more accurately termed “The States, United solely for specified joint purposes,” than “The United States”) — played a key role in protecting Americans’ liberties from infringement. That also allowed more unity at the federal level by eliminating many fights over who could exercise federal power to over-ride the choices of citizens and their governments that were closer to home.
However, in America today, for every problem, real or imagined (in both cases, called a crisis), a national “solution” is proposed, regardless of how individual, local, or varied the issues are.
Whether it involves housing, education, energy, transportation, finance, labor, health care, insurance, the environment, or virtually anything else, Americans are currently overwhelmed with ever more federal “father knows best” policies and programs centralized in Washington, at both the macro and micro scale. The federal government manipulates what happens with its ability to massively redistribute income among individuals and state and local governments (as with trust highly progressive taxation and trust fund money that can be withheld if federal wishes are not treated as commands) and regulations that big-foot state and local policies.
America’s founders did not envision anything like the federal government we face today. It was seen as not even having a say in a vast range of decisions citizens face, much less as the domineering senior partner for almost every decision made by everyone.
Their words make this clear. As Alexander Hamilton, perhaps the most “big government” founder, wrote in Federalist 17: “All those things, in short, which are 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, if established, 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 creeping (when not galloping) nationalization of every decision is blatantly inconsistent with individual rights and our founders’ federalism, designed to tightly constrain the national government to few, enumerated powers. That is why it is useful to revisit one of the most insightful books ever written about how the centralization of government power eviscerates our liberties — our ability to govern ourselves — and in the process, undermines our potential for real unity over what advances our “General Welfare,” as the Constitution put it: Felix Morley’s “Freedom and Federalism,” which Liberty Fund called “a pioneering achievement.” And a 1960 review sounds eerily as if it was written today: “The past century has witnessed the erosion of American federalism (and consequently, freedom) through the unchecked usurpations of power by the national government.”
With decades of further “progress” eroding federalism (which Morley called “the distinctively American contribution to political art”) since he wrote, revisiting his insights about “the impact on individual liberty as centralized government takes more and more authority into its hands,” is even more important now.
Federalism … serves admirably to foster freedom without the sacrifice of order.
One of the important images behind national attempts to “solve” issues is that centralized administration will provide order. Unfortunately that order comes with the price tag of uniformity. And since Americans disagree, often sharply, about what they want government to do, such nationally imposed uniformity means some political majority is empowered to impose its will against the will of all others. The general welfare becomes whatever the dominant political faction wants. In contrast, federalism allows “law and order” to be provided locally, without empowering widespread political domination in the place of freedom.
The dispersion of power simultaneously assists social, and hampers political, democracy.
Many falsely equate “majority rules” government with society. However, the expansion of the state is not the expansion of social (voluntary) power, but a contraction of it. As Albert Jay Nock more accurately analyzed it:
Every assumption of State power…leaves society with so much less power … 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.
In political democracy, your individual vote has no influence on the outcome unless it is aligned with majority wishes, always placing minority rights at the risk of being sacrificed. Under a robust federalism, however, individuals can use voting with their feet to select jurisdictions that offer a preferred mix of burdens and benefits, allowing those with similar preferences to voluntarily share those bundles and limits the burdens majorities can impose on those who disagree. Voluntary market arrangements also offer a superior form of democracy. Those arrangements do not require the permission of the majority, yet markets represent a democracy in which every dollar vote counts and each person’s dollar votes determines their results, without providing the ability to violate others’ rights in the process.
The founding fathers devised a balanced political structure … to protect minorities against the majority, right down to that minority of one, the individual … justified by the belief that men as individuals, and in their voluntary social combinations, are … worthy of freedom.
As public choice scholar 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 it, they “were concerned not to make America safe for democracy, but to make democracy safe for America.”
It was to emphasize the importance of these individual immunities that the Bill of Rights was immediately added to the original Constitution and that the power reserved to the states were intended to include, in Madison’s words, ‘all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.’
The nature of the Bill of Rights illustrates the importance of limiting the ability of the national government, however democratic, to infringe on the rights of minorities. It did not involve “positive” rights to receive things without an obligation to earn them, because for government to create new positive rights, extracting the resources to pay for them necessarily takes away others’ inalienable rights (called theft except when the government does it).
The Bill of Rights focused on defending “negative” rights – prohibitions laid out against others, especially the government, to prevent unwanted intrusions, in what Justice Hugo Black described as the “Thou Shalt Nots.” Even its central positive right – to a jury trial – is largely there to defend individuals’ negative rights against being railroaded by the far greater power of the government. And the Ninth and Tenth Amendments leave no doubt that all rights not expressly delegated to Washington were to be retained by the people or the states.
A strongly centralized government is always likely to deprive men of the freedom which … should be their birthright.
Thomas Jefferson may have put this best when he said that “The right of self-government does not comprehend the government of others” and that “the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.” That would not be “that liberty…for the preservation of which our government has been charged.”
A federal system is by its very nature out of key with the domination of any ‘general will’ expressed in terms of national majorities or centralized interpretation … diffusion of power is the essence.
A central problem with democratic determination of where government resources will go is that government has no resources of its own, but only those taken from citizens. Therefore, a majority’s largesse to its favorites is limited by how much harm the government can impose on its involuntary “donors.” And federalism sharply limits that abuse. A jurisdiction can’t “milk” you for more than the cost citizens would bear by leaving to go elsewhere. This option to leave unattractive situations for ones better suited to them is a central protection, now nearly eviscerated, of citizens against government abuse.
Federalism gives citizens an exit option that sharply limits government’s ability to mistreat them. Since the cost of leaving a locality or a state is generally far lower than the cost of leaving the United States, the national government can treat its citizens far worse without inducing them to leave than can a lower level government. Maintaining policy-making in lower level governments thus diffuses the power of government to rip off Peter, limiting their ability to take what is Peter’s and give it to Paul.
Centralization of power … tends to destroy that local self-government which is what most Americans have in mind when they acclaim democracy.
In Alexis de Tocqueville ’s Democracy in America, it was participation at the local level that he was struck by, not democracy at a national level. As Henry Steele Commager noted, “Tocqueville regarded centralization as the most dangerous of all the threats to liberty.” And his rejection of concentrating power at the national level in America as an effective mechanism to “solve” social issues is strikingly at variance with what we bear under our government today. As de Tocqueville put it:
The partisans of centralization … maintain that the government can administer the affairs of each locality better than the citizens can do it for themselves … But I deny that it is so when the people are as enlightened, as awake to their interest, and as accustomed to reflect on them as the Americans are … in this case the collective strength of the citizens will always conduce more to the public welfare than the authority of the government.
The federal Constitution … disavowed beforehand the habitual use of compulsion in enforcing the decisions of the majority.
Power in American life has been increasingly taken from individuals and local self-government, to be increasingly centralized in the federal government. Federalizing everything, including plainly private and local choices, has not benefited nor unified America, as clearly indicated by the increasing intensity of the battles to control what is to be imposed on everyone. We need to resurrect the federalism of the Constitution again, leaving people to make their own decisions outside of those very few areas where their choices must necessarily be in common.
Felix Morley saw this clearly:
The value of federalism, in preventing the prostitution of freedom, becomes more clear … the founding fathers put restraints on government so that the governed might be free.
If America is to re-establish federalism, the liberties it protects and the far greater potential for unity it preserves, Felix Morley’s Freedom and Federalism is a great place to begin. As its cover summarized:
A government of free men is like a strong-standing arch. The solid stones of which it is built is called freedom. Neither the building blocks of individual liberty nor the arch of freedom will stand secure without the keystone of federalism. It is federalism that holds up the arch. It is federalism that makes possible the preservation of both liberty and freedom.
That is why lovers of liberty and freedom — self-ownership and solely voluntary arrangements, over as wide a canvas as possible — need to rediscover the force of federalism in resisting the ever-growing reach of centralized political determination, which is tyranny, even when it is tyranny of the majority.
If democracy is at variance with federalism, and if federalism is conducive to freedom, it would follow that, far from maintaining freedom, democracy is inimical to it.
Gary M. Galles is a professor of economics at Pepperdine University.
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