Secession? No, try federalism

November 20, 2012

In the wake of the presidential election earlier this month, a lot of people expressed their disappointment with the results by submitting petitions for secession at the White House web site. Petitions were received from all 50 states, and there were several counter-petitions from progressives urging the government to let them go.

To be honest, and even though I signed South Carolina’s to support my friend Gay Patriot, I looked at these as just blowing off steam after a disappointing election loss, just as liberals fantasized about secession in 2004. I didn’t and don’t take them seriously.

My mistake, in at least one respect. As Prof. Glenn Reynolds points out in an op-ed in USA Today, petitions such as these and more serious secession movements in Scotland, Catalonia, and elsewhere arise from anger at a central government from which they feel alienated for various reasons. While the petitions themselves may not be serious, the resentment and irritation caused by being forced to obey one-size-fits-all laws you hate is very real. And, if left to fester, it can lead to more serious problems.

What’s the answer, if secession isn’t it? Reynolds looks back to the handiwork of a very smart group of men who came up with a solution suited to a large, diverse republic, and suggests we give federalism a try:

So what’s a solution? Let the central government do the things that only central governments can do — national defense, regulation of trade to keep the provinces from engaging in economic warfare with one another, protection of basic civil rights — and then let the provinces go their own way in most other issues. Don’t like the way things are run where you are? Move to a province that’s more to your taste. Meanwhile, approaches that work in individual provinces can, after some experimentation, be adopted by the central government, thus lowering the risk of adopting untested policies at the national level. You get the benefits of secession without seceding.

Sound good? It should. It’s called federalism (1), and it’s the approach chosen by the United States when it adopted the Constitution in 1789. As James Madison wrote in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Surely Reynolds wrote this with a wink and a smile, for federalism is the way were are supposed to operate, and our problems have grown as the federal government has usurped more and more of the states’ proper role, turning gradually from a government of limited powers to Leviathan. Consider it another way: the more the federal government tries to do everything, the less it can do anything well.  The national economy and health care systems are too large and too diverse, and there’s too much information coming in, for them to be directed top-down by a few hundred (or even a few thousand) pols and bureaucrats in D.C. The needs of people differ in various parts of the country, and the resources needed to even try to manage everything nationally wind up being diverted from those things only the federal government can do well, such as national security.

The solution, as Reynolds writes, is to recognize those spheres of competence and respect them, something that’s happened less and less since the progressive era. This isn’t to say that the enumerated powers of Article 1, Section 8 are the end all and be all; the Founders themselves recognized that the Constitution would sometimes need amending (2) –including granting the federal government more power– and put in place procedures for doing just that. It’s through ignoring those limits and procedures that we’ve reached a point whereat so many think, with some justification, that the United States Government is becoming a threat to their liberty and prosperity.

Change won’t be easy, and the genie of the progressive administrative state probably can’t ever be wholly put back in the bottle. But for the health of our body politic we have to keep trying.

Footnotes:
(1) Also “states’ rights,” but that term was forever tainted thanks to defenders of slavery and Jim Crow hiding behind it, back in the day.
(2) And I do think several are needed to deal with the progressive-statist tendency to grab more and more power. Professor Randy Barnett’s Bill of Federalism is a great starting point for discussion. Oddly enough, in the wake of their defeat in 2004, progressives themselves were arguing for federalism. Bipartisanship!

(Crossposted at Sister Toldjah)


Restraining Leviathan II: spending limits

December 22, 2010

A few weeks ago I wrote about the proposed Repeal Amendment, a change to the Constitution that would allow the states to repeal any federal law or regulation on approval of two-thirds of the state legislatures. The idea would be to allow another avenue of pushback against bad legislation, such as ObamaCare, and regulations that threaten our individual liberties, such as the recently announced assumption of regulatory power over the Internet by the FCC.

In an article at The Weekly Standard, Jeffrey H. Anderson uses the example of ObamaCare to argue that the Repeal Amendment isn’t enough, for several reasons: first is the difficulty of getting enough legislatures to agree on repeal. Even after the sweeping Republican victories in state elections last November, enough state legislatures remain in Democratic hands to block repeal, even if just in theory. To be honest, I consider this a feature, not a bug, since the pwoer to overturn federal law should require an overwhelming consensus. And, I suspect, that consensus exists in this case.

The other problem he mentions is more serious: that, to prevent a repeal, Congress and the administration could, in essence, bribe state legislatures with federal money in return for voting the right way. We saw examples of this during the debates over the health care law, as Senators Nelson and Landrieu, were (and let’s be blunt here) bought off with the Cornhusker Kickback and the Louisiana Purchase. If it can be done to a US senator, it can happen with a state senator.

Anderson’s proposed solution is a amendment that caps spending at the federal level. He explains it thusly:

While we do have a federalism problem (as in too little of it), what we mostly have is a spending problem — and, thus, what we really need is a spending amendment. Such an amendment should limit spending based on 2008 figures and then prevent Congress from increasing real (inflation-adjusted) spending by more than 2 percentage points annually. Exceptions should be made for defense spending or if three-quarters of the state legislatures grant an exception requested by two-thirds of both houses of Congress. Over time, such a Limited Government Amendment would dramatically reduce federal spending as a percentage of our gross domestic product.

In the process, it would also greatly reduce the federal government’s ability to buy off the states. Thus, a spending amendment would not only do a great deal to check federal spending, it would also increase the effectiveness of a repeal/federalism amendment. In combination, these two amendments would profoundly limit federal spending and control, while helping to reestablish the federalist system that’s so essential to securing our rights.

It’s an interesting idea; Dan Mitchell of the Cato Institute has argued that simply limiting spending growth to two-percent would balance the budget by 2020. (Presumably surpluses beyond that could be used to pay down our debt.) And one could reasonably argue that a constitutional amendment is required, given Congress’ natural propensity to spend more of our money (or borrow it) regardless of need.

Perhaps it’s odd, but I’m more wary of this proposed amendment than I am of the Repeal Amendment, since I’m wary of tying the government’s hands in a time of emergency. While military spending would be exempted, what about a natural disaster that devastates a whole region? Time would be of the essence for any response, yet the two-thirds/three-fourths provision for an exception to the limit strikes me as too cumbersome.

Still, there’s no doubting the federal government has grown too powerful and needs to be restrained and pared back. Anderson’s proposal is at least worthy of serious debate.

(Crossposted at Sister Toldjah)


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