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.
The happy paradox of constitutional federalism is that two sets of government can protect liberty better than one. This promotion of liberty depends on a federalism of different governmental spheres laid down in the Constitution itself. The Constitution enumerates and thereby limits the powers of the federal government– basically to provide national defense, protection of interstate commerce, and a few other public goods that state and local governments cannot provide.
The states are thus left with very substantial powers. But they are forced to compete with one another in market for governance that is intensified by a few federal constitutional guarantees–those of the free flow of goods, people, and speech across state lines. As the limitation of power protects against tyranny of the federal government so does the ability of citizens to exit protect against state tyranny.
Moreover, by decentralizing most legislative responsibilities constitutional federalism addresses a fact that we must never forget: federal legislation is an exercise in central planning by temporary majorities.
Here are two related thoughts about the Fugitive Slave Clause.
State Action: It is often said that the Constitution only imposes obligations on government officials. While that may be generally true, it is not clear that it is entirely true. One famous example is the 13th Amendment, which simply prohibits slavery, rather than prohibiting the federal government or the states from imposing slavery. (“Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.”)
It is often argued that the 13th thus prohibits private persons from participating in slave relations. While this is certainly a plausible interpretation of the Amendment, I genuinely don’t know if it is correct.
The other day, however, I came upon a couple of other clauses that may not have government action requirements. The Fugitive Slave Clause provides that “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
Immigration of the right kind is a great benefit to a nation run under principles of liberty. If the immigrants obey our laws and work productively, they will add to the nation’s wealth. If they assimilate to the nation’s creed of liberty under law, they strengthen its power throughout the world, because their former compatriots take heed of their success and that example may encourage more liberty in their home nations. And not only do the citizens of the welcoming nation benefit, so also do immigrants. The value of their human capital rises as soon as they set foot in a nation of free markets and the rule of law.
The way to encourage citizens to embrace immigration from abroad is to have a constitution that limits welfare programs and precludes ethnic discrimination. Without such commitments, citizens may rationally worry that poor and even work-shy immigrants may come and eventually vote themselves higher levels of benefits, even at the expense of long-time citizens and their descendants. Without guarantees against discrimination, citizens may also worry that ethnic groups who still feel solidarity based on previous ties, will try to organize government benefits on the basis of ethnicity, impeding assimilation.
And now I can reveal that once there was a nation that had a constitution with the pre-commitments needed to facilitate a sound immigration policy. It was the United States after it had ratified the 14th Amendment.
He may be modeling his re-election efforts after those of Harry Truman in 1948, but entering the last year of his term, President Barack Obama is taking considerable efforts to also wrap himself and his presidency in the mantle of Theodore Roosevelt. The comparison is not without merit. His January 2012 recess appointment of Richard Cordray as the head of the new Consumer Protection Bureau, in fact, has its best precedents in the actions and constitutional theories of Roosevelt and the wider progressive era challenge to the Founding vision of America.