Tuesday, September 21, 2010

Federalism, States Rights, and Liberty

Thinking on a comments exchange with one of my readers (Eric), I have been pondering the whole idea of federalism and states rights as it relates to liberty. Although I have some sympathy for the idea that the closer one gets to the local, the more effective and efficient politics can be and the more control individuals can exercise over their own affairs, I am wondering how States Rights advocates draw the line between the Constitutional provisions for the breakdown of authority between federal and state governments and the notion of liberty as a guiding principle. Let me try to explain what I mean in greater detail ...

It seems to me that we have the principle of liberty which should transcend any kind of division of authority, whether that authority is the federal government, the state government, or even the local municipal government. And yet we have a constitutional division of authority and power that only speaks of state governments versus federal governments without really any regard to the principle of liberty. In other words, irrespective of the universal principle of liberty which would seem to transcend any exercise of power by any governmental authority, whatever power that the Constitution does not explicitly afford to the federal government in terms of dictating the conditions under which citizens can live, markets can function, and state force can be applied, is afforded to the governments of the individual states. This presumes that either the federal government or the state governments have the power under the Constitution to rule over its citizens, even if this ruling is to constrict liberty, as long as the power to do so fits within the proper division of powers afforded in the Constitution.

Thus, where the federal government doesn't have the right to dictate policy, the states do. Many states rights conservatives often argue that the Constitution, where it limits the federal government, does no such thing to state governments in their reserved powers. Take, for instance, gay marriage. I often hear from states rights conservatives the idea that if state governments decide to discriminate against gay people when it comes to affording the rights and privileges of marriage, they have the authority to do so. Perhaps an even better example is abortion. The argument goes that Roe v. Wade should be overturned as an un-Constitutional exercise of authority by the federal government and that the issue of whether to permit or outlaw abortion should be kicked back to the states, where state governments get to make the final binding decision on the matter. And that's where the argument tends to stop. Many states rights conservatives are willing to accept the power of state governments to enact and enforce legislation that would constrain freedom as a matter of deference to state power afforded under the federal Constitution. Hence, individual liberty or freedom can be duly constrained in one state while it can be advanced in another state. So the notion of the principle of freedom and liberty becomes relativized according the whim of state governments as opposed to being recognized as a universal concept. Theoretically, one can have liberty to smoke marijuana in California, but not even have the freedom to drink alcohol in South Carolina, much less smoke marijuana. It seems clear to me in this sense that California would be a state that is advancing liberty relative to South Carolina, and yet states rights conservatives are often willing to accept the right of South Carolina to constrain liberty in this way. This relativism that sacrifices the principle of liberty on the altar of states rights creates a slipperly slope whereby more pernicious constraints on liberty can be justified -- racial discrimination, gender discrimination, etc. This is why many liberals see the states rights argument often as code for the ability to justify the constriction of liberty. Through this, my friend Eric can argue (and correct me if I'm misunderstanding your position, Eric) that a candidate for governor in New York who would seek to use the power of the state through eminent domain to forcefully prevent the construction of a mosque near to ground zero may be a rotten autocrat for holding this position, but that this is a matter for the state and its residents to decide, so that if this candidate were to be elected governor and were to exercise this power, well then that's New York's business and who are we in the rest of the U.S. to meddle in New York's affairs, even if this exercise of power constricts freedom?

I'm not sure I've expressed myself so clearly here, but I think what I'm trying to say in a nutshell is that there is an inherent tension between the states rights argument as commonly presented by many conservatives and the notion of support for a universal principle of individual liberty. This is why we get candidates like Christine O'Donnell talk about defending the sacrosanct notion of individual liberty, and yet still hold that some authority forcing a dress code or a dance code on people is still tolerable and legitimate under the Constitution and the reserved powers it grants to local authority.


eric said...


Great post, and I appreciate you giving so much thought to my argument. I'm not so sure my view on this subject is in line with traditional conservatives, who are more likely to argue that Federalism is good because it is the most fair and efficient way to enact the social contract that bonds us together in society, since it essentially allows the people who live closest together and are effected most by eachother's actios to decide which liberties are to be limited under said contract. I respect that argument and agree with it to a large degree, but that's not what really endears me to federalism. Here's what does: diversity of liberty.

My reasoning might run kind of long here, but bear with me.

To me (and again I don't claim this is representative of conservatives everywhere), many of the issues that seek to restrict freedom in order to expand freedom are based on arguments that are ultimately arbitrary, or at least unsolvable with our limited knowledge of existence. Abortion, for example, weighs the right of an innocent life to exist unmolested against the right of a woman to claim exclusive access to her own body. Taken seperately, I think you can logically argue that both rights are fundamental and immutable. As such, the decision to interfere with one right at the expense of the other is ultimately an arbitrary one (which isn't to say there aren't excellent arguments for one side, but that there are almost always equally compelling arguments for the other). To some degree, I see the same issues tied up in arguments about drug laws, civil rights issues, and even gun laws (though, moreso than the others, gun questions have often been decided in advance by the 2nd Amendment).

Now, my personal position on these issues, when such an arbitrary condundrum comes up, is to default on the side of individual liberty, because anything else requires compounding the ethics of the issue by introducing a threat of force (i.e., the government) in order to get my way.
So my argument isn't always that I know I'm right on an issue, but that I know I'm not so sure of the correctness of my viewpoint that I'd be willing to point a gun at you and demand your compliance. This ties in w/ the libertarian non-agression axiom, and is an excellent guide for making political decisions, but what it doesn't help with is in trying to work with others who have come down on the other side of an arbitrary ethical equation than yourself.

eric said...


That's where federalism comes in.

Federalism offers the best solution to the problem of how to overcome these differences of opinion while most closely following the non-agression principle, because federalism ultimately allows the most people the most freedom to sort out these issues. Now certainly there will be cases where "agressive" solutions win out... in Massechusetts they'll make it mandatory to buy health insurance if you live in the state, or in Arkansas they'll prevent you from buying alcohol in many counties. But ultimately that is preferable to a one-size-fits-all solution to an arbitrary question. And at the end of the day you end up with a sort of 'garden' of varieties of freedom across the nation that, to me, make for a more beautiful, diverse, and useful cultural landscape than we'd ever achieve with top-down federal rulings on every issue.

For instance, I live in an area with no municipal zoning regulations or building codes.
So I might have to drive by an ugly mobile home with 12 cars piled up in the yard when I go to work in the morning, but when I want to build a shop for my business so I can work from home more often, or add a screened in patio to the back yard, or build my daughter a tree house, I don't have to ask anybody's permission to do it, nor am I forced to build those things according to communal aesthetic tastes I may not like. I wouldn't trade those freedoms for nicer houses and greener lawns around me, but neither would I demand the people who want those things give them up.

Likewise, I live in a county where it is illegal for me to buy a shot of booze or a mixed drink in a restraunt or a bar (wine and 3.2 beer are allowed), but I also have the liberty to stack up a 30 foot tall pile of brush in my back yard and light it on fire with coolers full of beer and a ton of friends around. And I don't even need a permit. There are areas nearby I could move where those two freedoms would be reversed, but I wouldn't trade them, and I shouldn't have to. And in the meantime, if I want to get our asinine 'liquor by the drink' laws changed, I can be more effective working for a local solution than I'd ever be if it were a federal or a state law (and in fact this law is up for review on a ballot question in our county this November).

That brings up another advantage of Federalism; It ultimately encourages exactly the kind of civic engagement you promote, and the more laws that pour down on us from Washington, the less such civic engagement is needed or even useful. In fact, I'd argue that federal programs like Social Security and Medicare contribute in a huge way to the decline of civic engagement because people look at local problems and see a federal government stepping in saying, "Just give us your money and we'll take care of this for you." And the same is true for state laws that remove the burden of local problems from municipalities. Perhaps it is true that more people individually benefit from federal or state involvement, but you can't escape the consequence of it being an incentive for civic disengagement.

Finally, I'd love to live in a libertarian paradise, but if that's not possible I can be quite content living in a nation where libertarian enclaves co-exist next to uber-liberal urban centers and rural towns with Victorian social codes. And if I have to choose between people who promote federal solutions to problems over more localized solutions, I'll vote for the people who promote Federalism even if I disagree with their personal stance on the issues.
And that's why I'd be likely to vote for Shirly Angle for the Senate even though I wouldn't want her on my city council.

Huck said...

Eric - That is very eloquently stated. And very persuasive at one level. As I said in my own posting, I have sympathy for the idea of getting closer to the local. And you are right to note that this comes out of my very strong belief in the notion of the efficacy of civic engagement when it comes to people assuming ownership (demanding ownership, in fact) of "everyday politics." And my sympathy in this direction also comes out of my desire to encourage individuals to not abdicate responsibility to the so-called "professionals," to not become apathetic to civic life. So I'm with you on that front. I think that many liberals are. When I posted in reference to Matt Yglesias's comment about liberaltarianism, I was also trying to convey the idea that liberals are liberty-loving and defending folk, too -- just as much as conservatives (and maybe even moreso when it comes to social issues). I want to make some comments about what I think is problematic with your "beauty of the diversity of federalism," but before I do, I'd just like to reiterate that what prompted my posting was really motivated I guess by what I see as the radically contradictory rhetoric among conservatives when it comes to thinking of liberty versus federalism. A thoughtful, nuanced explanation of yours is not usually how this gets framed by conservatives. Usually, we hear a kind of bombastic, knee-jerk, irreflective embrace of what I might call the universal liberty principle (i.e. "Don't tread on me!") and yet also hear a kind of willingness to tolerate and accept the local authorities "treading on somebody." I generally don't hear liberals, as much as we embrace liberty on social issues and rationalize a more involved federal government on other issues, positing such stark and impassioned dichotomies as a matter of principles. (continued in next post ...)

Huck said...

As for your notion of "the beauty of diversity in federalism" argument, for all its appeal (and at one level it is quite appealing to me), I do think there are foundational and universal principles that are not arbitrary (and perhaps you would agree with this, even though in your comments above you gave examples of "arbitrary conundrums" but no examples of the non-arbitrary non-conundrums!) If you do agree with this, then the question becomes: what are these non-negotiable universal principles? For my presumption is that on these non-negotiable, non-arbitrary matters, the proper role of any authority in a free society is to guarantee, even if by force, access to and the realization of these freedoms. I know that seems contradictory at one level, but it appears to me inevitable to really preserve our commitment to freedom in a democratic society. For instance, state enforced racial segregation, even at the state level, is simply unacceptable in a free society. And we do share a country, so it is incumbent upon us to make sure that a state we don't live in, but which professes to be goverened by a shared Constitution which outlines a series of inalienable rights, adheres to these national values. So we Louisianians should not accept a compromise in Missouri on what we consider core, immutable, universal principles of freedom.

eric said...

Thx for the lenghty and well thought out reply. I have a lot to say but will have to shelve it for now as I am trying to get caught up on work in advance of a weekend-long music festival and float trip on the Illinois River that we are heading out to tomorrow. So here is the Cliff Notes version of my reply:

- I think the Bill or Rights does a pretty good job protecting the non-negotiables.

- Social cons who want to limit freedoms are problematic to me, but I find it less problematic for them to be limiting freedoms on a local level that effects a smaller group (i.e., those who would prevent the Ground Zero Mosque from being built, or who support the 'liquor by the drink' laws in my county), than what I often see from liberals who are quick to limit freedoms in ways that effect everyone (i.e., forcing everyone to buy private healthcare, or regulating carbon emmissions in such a way that would purposefully and artificially raise energy prices for everyone).

-I tend to agree with you that state-enforced racial segregation is worthy of a federal intervention, but would point out that much of the racial segregation that has occured in the past (and that continues today) is based on social biases, not state authority, and as such is a different issue for me. School districts may be racially segregated becasue the local population is racially segregated by social convention, and that's not an issue I think is right for the federal government to be involved in. Likewise, if a store owner doesn't want people of a certain race or sexual orientation or hair color on his/her private property (however much I may disagree with their reasoning), I don't think that is a matter for the federal government to be involved in anymore than it should be involved in their decisions about letting those same people into their home.