Federalism Resurgent

The United States was formed as a federation of preexisting states, and the intent of the Constitution was clearly to retain much power for those states.  After the Civil War, however, the federal government increased rapidly in size and influence, and after The Great Depression the trend intensified further.

Recently, however, there has been a resurgence in certain quarters attempting to promote states rights, a tactic we support.  A shift in power from the federal to state government in the US would be a structural change promoting competition between governments – it would Let Fifty States Bloom And Fifty Schools Of Thought Contend, one might say :).

One example is the Free State Project, which aims to concentrate libertarians in the state of New Hampshire.  A 2004 interview with founder Jason Sorens makes clear the connection:

Jason Sorens: Another factor that caused this idea to occur to me was my own research on autonomous movements around the world. The fact that the regional or state level is becoming more important worldwide seemed to indicate that the same trend may happen in the U.S. — that the state level may be the level at which important political action takes place in the future..In the U.S. we’ve seen increasing centralization over time, but if other countries are any indication, the decentralization trend should come to our shores as well.

TA: With our federal government as far-reaching in scope as it is, how is it possible to make significant changes at the state level?

Sorens: Simply at the state and local level, many reforms can be accomplished — everything from privatization of education, to deregulation of utilities, to ending abuses of eminent domain and asset forfeiture. 

But even further than that, we can begin to rein in federal power by using the state to challenge the federal government’s authority in many areas, from pursuing tenth amendment lawsuits, to passing state laws that render federal laws somewhat ineffective, to the more extreme possibilities of outright nullification or some kind of unilateral declaration of sovereignty.

TA: Do you think the Project has the potential to change things indirectly at the national level as well?

Sorens: I think so, for a couple of reasons. Most obviously we would have some federal representation and we may hold the balance of power on some issues.  Also, when other states see that our reforms are drawing individuals and businesses, they may be forced to pursue those same policies in order to keep their tax base intact.  And finally, I think there will certainly be a demonstration effect — that libertarian policies will create desirable outcomes, and citizens in other states will demand those same policies for their own governments. 

Living freedom sooner, promoting competition, and converting people by example – that’s our kind of activism!

And more recently in a movement somewhat related to Ron Paul’s back-to-the-Constitution movement, we have seen states proposing (and in a few cases passing) sovereignty resolutions, reaffirming their rights as states under the Constitution.

While these resolutions are only of symbolic value (and had no effect when similar resolutions were passed in the 90’s), they do indicate a cultural trend.  And Randy Barnett, a constitutional law professor, has pointed out in the Wall Street Journal that the states could call for a Constitutional Convention to add a Federalism Amendment to the Constitution:

In response to an unprecedented expansion of federal power, citizens have held hundreds of “tea party” rallies around the country, and various states are considering “sovereignty resolutions” invoking the Constitution’s Ninth and Tenth Amendments. For example, Michigan’s proposal urges “the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.”

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

The fists of Washington DC have a tight grip on the reins of power, so we are somewhat skeptical about whether they can be pried loose.  But at least this strategy (unlike trying to take over the federal government) is built on a firm basis of increasing competition between governments.