• About
  • Contact
  • Staff
  • Home
  • Essays
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

November 28, 2017|Accountability, cooperative federailsm, Enumerated Powers, Heather Gerken, national federalism

How National Federalism Leads to a Bigger, More Activist State

by John O. McGinnis|

In a previous post, I explained how constitutional federalism uses two levels of governments to protect liberty and restrain the state. In contrast, the new school of national federalism uses two levels of government to create a more activist and burdensome state than one level does.

First, scholars advocating national federalism do not see much, if any, role for judicial enforcement of the Constitution’s textual limitations on the federal government. That failure alone allows the federal government to be much more intrusive than permitted by the design of the Framers.  Moreover, failing to enforce the enumerated powers also can kill useful policy competition among the states, because a single federal policy then replaces many state policies. Sometimes such competition deadening federal statutes are passed at the behest of state officials who, not unlike private actors, would prefer not to compete if they can create a cartel and an easier life. Constitutional federalism, in contrast, protects a beneficent distribution of powers that the Constitution’s agents cannot undermine to the public’s detriment.

Second, so-called cooperative federalism—the form of federalism that national federalists most admire—is a recipe for bigger government.

Read More

November 10, 2017|Accountability, competition among the states, Federalism, fiscal policy, state and local tax deductions, state cartels

How Eliminating the Deduction for State and Local Taxes Promotes Federalism

by John O. McGinnis|

The total elimination of the deductibility of state and local taxes in the Senate Republican tax plan will cost me money, as I live in the high tax state of Illinois. Nevertheless, I strongly favor this proposal. It is rare that a change in tax law can reinforce the basic structure of our Constitution, but this one does.

Our Constitution is premised on government accountability and our federalism on competition among the states. Deductibility of state and local taxes undermines both.  Because the deduction tempers the full force of the tax burden that states and localities impose, the accountability of state and local legislators for tax and spending becomes more attenuated. And this lack of responsibility is not ideologically neutral: state officials tax and spend more taxpayers’ money than they would if they could not slough off some of the costs on people who cannot vote them out of office.

Second, federalism is supposed to encourage competition among the states for efficient provision of public goods. But this deduction reduces the keenness of the competition.

Read More

April 17, 2016|Accountability, Elections, Income Taxes, Refunds, Withholding

Make Elections More Taxing

by John O. McGinnis|

This year April 18 is the end of the ordinary window for paying income taxes to federal and state governments. Paying income taxes may be a necessary part of civic life, but that payment should be timed and structured to promote government accountability. Unfortunately, but not surprisingly, our politicians have made it difficult for citizens to be conscious of how much they are paying for government services at the time when it would most count—election day.

First, the ordinary window for tax payments—from January 1 to April 15—makes the act of paying taxes a distant memory by the time the first Tuesday in November rolls around.  It does not take a behavioral economist to recognize that paying taxes closer to the election would make voters focus on whether they are getting value for money from government.  Thus, the ordinary payment window should be changed to the month before the November election.

Second, as a result of withholding, most voters get a refund from the government when they file their taxes.  This process also makes them less conscious of the tax burden, since most do not actually write a check to the government, but instead get a check from the government. Thus, withholding should be modified to make citizens feel the effect of taxes.

Read More

July 25, 2015|Accountability, Hart v. State, Markets, North Carolina Supreme Court, parental choice, school vouchers

School Vouchers are a Victory for Liberty

by John O. McGinnis|

The last hundred years have witnessed a great struggle between state control and more libertarian forms of social ordering. Now that socialism—the hard-edged way of state control—has been largely discredited, a softer edged way—government control over primary and secondary education—is perhaps the most important fault line in this battle.

Thus, it is very welcome news that in Hart v. State the North Carolina Supreme Court last week upheld a school voucher program. The plan would provide $4,200 to parents with income at 133 percent or below the poverty line to send their children to a private school of their choice. The case turned on the state rather than the federal constitution, because happily the Supreme Court has already upheld school vouchers against an Establishment Clause challenge.

I am not an expert in North Carolina constitutional law, but one argument in particular interested me. The dissenters in the case contended that the voucher program did not serve only public purposes, because the private schools did not have to comply with government standards to assure that students “would participate and compete in society” by receiving a sound education. The legislation did require that schools receiving vouchers require attendance, meet certain health and safety standards, and provide periodic standardized testing.  But these requirements were not enough for the dissent.

What was remarkable in my view was that the dissenters dismissed the capacity of  parental choice to promote education accountability and indeed excellence.

Read More

July 29, 2012|

The Spartan Prerequisites to Rehabilitating Criminal Justice in America

by Stephen F. Smith|

In response to: Transforming the Regimentation of Criminal Justice With Volitional Citizenship

Professor Jonathon Jacobs usefully invites us to think about the “Stuntzian” politics of crime, and the true nature of democracy, in light of other features of contemporary American politics writ large.  If our politics is broken when it comes to crime and punishment – as Professor William J. Stuntz argues in his recent book, The Collapse of American Criminal Justice – what is the state of our politics (and hence our democracy) on other vital issues? There is much common ground between Stuntz and Jacobs.  Both suggest that America – supposedly the most democratic system in history – is actually surprisingly…

Read More

More Responses

No Man Set Apart: The Police Officer as Extended Citizen

by Erin Sheley

When surveying the critical response to the late William J. Stuntz’s final scholarly work, The Collapse of American Criminal Justice, one notices that two characterizations recur most frequently. The first relates to Stuntz’s  transcendence of the traditional political divisions that so frequently dominate discussion of crime and criminal justice. The second is his great emphasis…

Read More

July 15, 2012|Accountability, Deborah H. Merritt. Justice O'Connor, Democracy and Distrust, Full Faith and Credit Clause, John Hart Ely, Joseph Story, Justice Blackmun, Luther v. Borden, Madison, Marbury v, Monarchy, New York v. United States, Pacific States Telephone & Telegraph Co. v. Oregon, Roe v. Wade, Shay's Rebellion, Sovereignty, The Guaranty Clause, The Warren Court, Titles of Nobility

Democracy, Distrust, and the Republican Form of Government

by Tom Christina|

This post consists of two parts:  (1) thoughts prompted by re-reading John Hart Ely’s Democracy and Distrust; and (2) something resembling a meditation on the Guaranty Clause.  As the reader will see, I am not able to articulate the connection between the two topics in anything but the most general terms.  I hope others may be able to do so. 

Read More

Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

Read More

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

Read More

Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

Read More

James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

Read More

Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

Read More

Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

Read More

Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

Read More

America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

Read More

About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2021 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here.
By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Privacy & Cookies Policy
Necessary Always Enabled

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close