Secession Week Blogging: Thursday – Federalism (Secession Lite)

Welcome to our fourth post for Secession Week, in celebration of Independence Day this weekend.  Today’s theme is federalism, which Wikipedia defines as:

The term federalism is … used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). Federalism is a system in which the power to govern is shared between national and central(state) governments, creating what is often called a federation. Proponents are often called federalists.

Confusingly, in Europe the word is sometimes used for those who support a strong federal government, like the EU, but we are using the earlier meaning of a federation of fairly independent political units, whose central government restricts itself to activities with interstate implications, like national defense.

Federalism is not a fringe issue – the battle over states rights reached the nations highest levels in recent Supreme Court cases like Raich vs. Gonzalez and Kelo vs. New London.  And as Real Clear Politics reports in Can Federalism Solve America’s Culture War?, popular blogger Andrew Sullivan recently defended federalism in The New Republic: “The whole point of federalism is that different states can have different public policies on matters of burning controversy–and that this is okay.”

The Stanford Encyclopedia of Philosophy points out that federalism vs. centralization has been an issue since the founding of the United States:

The Articles of Confederation of 1781 among the 13 American states fighting British rule had established a center too weak for law enforcement, defense and for securing interstate commerce. What has become known as the U.S. Constitutional Convention met May 25 — September 17 1787. It was explicitly restricted to revise the Articles, but ended up recommending more fundamental changes. The proposed constitution prompted widespread debate arguments addressing the benefits and risks of federalism versus confederal arrangements, leading eventually to the Constitution taking effect in 1789.

The “Anti-federalists” were fearful of undue centralization. They worried that the powers of central authorities were not sufficiently constrained e.g. by a bill of rights (John DeWitt 1787, Richard Henry Lee) — which was eventually ratified in 1791. They also feared that the center might gradually usurp the sub-units’ powers. Citing Montesquieu, another pseudonymous ‘Brutus’ doubted whether a republic of such geographical size with so many inhabitants with conflicting interests could avoid tyranny and would allow common deliberation and decision based on local knowledge (Brutus (Robert Yates?) 1787).

James Madison

In what has become known as The Federalist Papers, James Madison (1751-1836), Alexander Hamilton (1755-1804) and John Jay (1745-1829) argued vigorously for the suggested model of interlocking federal arrangements (Federalist 10, 45, 51, 62). Madison and Hamilton agreed with Hume that the risk of tyranny by passionate majorities was reduced in larger republics where sub-units of shared interest could and would check each other: “A rage for paper money, for an abolition of debts, for an equal division of property, or for any improper or wicked project, will be less likely to pervade the whole body of the Union than a particular member of it.” (Federalist 10).

As Mencius Moldbug (a veritable demon of primary sources) often shows us, writing from long ago reveals our false assumptions that things must always be and have always been like they are now.  To see “A rage for paper money” characterized as an “improper or wicked project” by the founders of our country helps put the Fed and fiat currency into historical context.  Speaking of Moldbug and historical context, his contribution for this event is up – Secession, liberty, and dictatorship:

Tribalism excluded, I see only one remaining reason to either talk about secession, or actually carry it out: the tantalizing project of creating a new sovereign structure from a clean-room design in the 21st century. When implemented on existing populated territory (rather than via dynamic geography), this can be described as a reboot.

If one favors the secession of California, it is not because one feels the Schwarzenegger administration has done such a great job that it should be promoted to full sovereign stature, like the PLO. It is because one feels that the way California is being governed is entirely wrong. It is completely and utterly misguided. The political institutions of California are not in any way susceptible to repair. Rather, they require complete replacement.

And for any such thing, they cannot remain joined at the hip to Washington, DC. If one favors a reboot of California, secession is obviously a prerequisite, simply because Federal law is such an important part of the process of state government. All of USG at once could reboot, of course, or all the states could reboot separately, or California could just decide on its own that it’s too cool for school. For the purpose of this essay, we’ll consider only California.

He then explores possible political systems which could be used to govern California – coming to some unusual conclusions and proposing an answer synthesizing various historical models.  If you’ve never read Mencius before, make sure you’re sitting down – reading his essays feels like I’ve dropped acid and put on the sunglasses from They Live!, and the world has been enlivened by the simultaneous stripping of deception and adding of extraneous color and the occasional hallucination.

We have several contributions for today’s theme here on A Thousand Nations.  Will Chamberlain contributes another original piece on Federalism, Secession, and Free Trade, as does Mike Gibson in Foundations of Federalism: Experimentation & Value Pluralism.  And I discuss some technical aspects of local competition and which tax/ownership schemes properly incent governments in Seasteading, Tiebout, and Federalism: Seasteading FTW.  (In an older post at the Seasteading Blog I discuss why federalism leads to less conflict than democracy.)

The main Constitutional support for federalism, which has been sadly weakened by the Supreme Court, is of course the Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Constitutional scholar Randy Barnett advocates creating a whole new Bill of Federalism amendment to the Constitution, as you can read in this WSJ article:

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.

Read his proposed amendment, or see responses by Stephan Kinsella at Mises, Ilya Somin at Volokh (who has some excellent comments), and Michael Boldin at the Tenth Amendment Center.

And finally, the Daily Paul questions whether we should support the looser Articles of Confederation over the Constitution.  At LRC, Walter Block and Stephan Kinsella see central intervention against federalism as a mixed bag, because it promotes violence, but is often done to support freedom.

We’ll be back tomorrow with a post on non-territorial secession through systems like polycentric law.