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My Goals for Federalism
My post on Kelo generated controversy in two areas. One was whether the Bill of Rights is enforceable against the States even without "incorporation" via the 14th Amendment. I'll address that topic soon. For now I'm going to talk more about the other controversy — individual rights in a federal system.
I'm going to leave aside the Bill of Rights and speak purely theoretically about how I would like individual rights to function in a system of layered governments.
Firstly, I cannot assume utopia. Even though I'd like to have a government that understands individual rights as I do — maximizing individual freedom of action in the context of forbidding the initiation of physical force — I'm part of a tiny speck-like minority and am under no illusion that my political philosophy is attractive to most people. The system I really want is out of the question. So I'll do the next best thing: describe a system whose robustness in the face of controversy makes it reasonably likely to preserve and to enhance individual rights.
The genius of federalism (more generally, layered governments) is that it permits local variations within a larger framework. The local variations admit a sort of "political competition" whereby people can vote with their feet to live under the system of their choice, while the framework provides the broad rules, coordination, and an arbiter to settle controversies between the local systems.
I'm not fond of the term "political competition" because politics and economics are very different and it's dangerous to confuse them. But the "economic" angle is important to understand. In a market, customers have choices. They don't have to buy any particular product. They choose the one that best meets their needs. Producers must please their customers or they will lose them — the customer is king. In politics, on the other hand, the King is king and if you aren't happy with his edicts, too bad. You don't get a choice. I think it's important for people to be able to escape onerous governments, while at the same time realizing that different people will have different conclusions about what is onerous. If one size doesn't fit all, the solution is to have a variety of sizes.
Another significant benefit of federalism is that the local variations can be compared and evaluated. Thinking about prohibiting alcohol? How about a small-scale experiment instead of hitting the whole country all at once? It's easier to see when you've hit upon a bad (or good) idea when you can compare your results to those of a control group.
A higher layer has power over the layers beneath it, so it is essential to tightly control this higher layer. Checks and balances. Enumerated powers. Vigilance from the lower layers. Rebellion when the higher layer exceeds its authority. Higher layers must be created with great deliberation, and the threshold for changes should be similarly high.
Resist the temptation to protect individual rights at higher layers, to bind the hands of the lower layers. For every lover of freedom who wants to protect property, there is a person who wants to declare a right to health care funded by the expropriation of property. So-called "negative" rights, which I favor, are not guaranteed to be the only kind of rights. (Recall, utopia cannot be assumed.)
All rights should begin at the lowest level of the hierarchy. Only those rights that win overwhelming approval in the "political competition" should be brought up to the next level. To be very clear, they should be brought up, but only after they have proven their success.
It is not a coincidence that the Bill of Rights is similar to lists of rights in the constitutions of the various states. The Bill of Rights was forged from the successes of the rights protected by those states. The attractiveness of "incorporation" via the 14th Amendment (even as I argue it was unnecessary — but that's another post) is precisely that it gives a greater scope to rights already widely beloved.
This model of rights "bubbling up" to higher levels of government based upon their success on a smaller scale is the reason I would limit the power of higher levels of government to "create" rights. Up to its own discretion, it might create rights I like … or it might create rights I don't like. I do not want any small group of people, such as the Supreme Court Justices, to have the authority to create rights by the mechanism of legal gymnastics.
I think abortion is an excellent example — it's absurd to read a right to abortion into a right to privacy, which itself isn't even fully clear in the Bill of Rights. It's two levels removed from the text, and it's made a significant proportion of the population very upset. Indeed, when either outcome (establishing it as a right, or banning it) would make a significant proportion of the population very upset, that's a powerful clue that it might be too soon to apply a universal rule! I would prefer the controversy to be settled over time at a lower political layer. Let different states establish different rules regarding abortions. Able to vote with their feet, fewer people will be very upset than in the case of a universal rule. And after some period of time, comparisons will be possible — data may change minds. If and when something approaching a public consensus can be reached, only then should the higher layer of government get jurisdiction over the matter.
"I am in favor of state decisions for rights that are unclear in the Constitution, and federal decisions for rights that are."
Controversy is important. Controversy is good. Higher layers of government should not preempt controversy by handing down a ruling based on something only weakly in its constitution. Higher layers of government should be in the business of reacting to consensus, not attempting to create it. A powerful higher-layer government might act in ways that enhance freedom (protecting property) — or it might act in ways that limit freedom (establishing a right to health care). Sometimes the bad guys run the show, and it's important we don't give them enough rope to hang us with. I am safer at the hands of a public supermajority than at the hands of any small group of elites. (Because I don't, and will never, get to pick those elites.)