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The conservative case for a decentralized federal republic
By W. James Antle III
ESR senior writer Bruce Walker has called for an honest intellectual debate among conservatives on the concept of federalism. To that end, he eloquently made the case for essentially ending federalism and further centralizing government in order to achieve legal simplicity through a uniform national code.
Walker's premise is that we live in a world where technology has rendered the importance of geographical proximity to government obsolete. Thus, the main result of our federal system of government, which includes local, state and national governments, is to create overlapping and sometimes contradictory laws implemented by multiple layers of bureaucracy. Far better to clear out these extra layers and assign all governing powers to a clearly identified, accountable central government, provided, as Walker stipulates, that "the process worked to simplify the law."
The Founding Fathers would take a different view. In designing the American Republic, they took great care to see that powers were not consolidated in any single governing entity. Instead, power was to be divided among the separate branches of government (separation of powers) and between the federal and state governments (federalism). To insure that the federal government, which the Framers of the Constitution were strengthening compared to the loose association that existed under the Articles of Confederation, was limited it was only to have certain enumerated powers.
If the federal government is to properly assume the powers of the states (and the local governments), it will need to have more power than is delegated by the Constitution. If we grant that the federal government has powers well in excess of its enumerated powers, by what principle is it limited? This turns the very idea of our republic's system of limited government on its head, something that may please many Americans but should not be pleasing to conservatives.
Walker notes that to some extent this federalization which the Founders would be more likely to describe as usurpation has already taken place and state and local governments have become "facades." This is all too true, but in my view this is something to be reversed by enforcing the Constitution rather than conceded to by having the states fully subsumed by the national government. States are still very active participants in American public affairs; even though the federal government has grown dramatically since the New Deal, Americans still primarily deal with their state and local governments in areas ranging from law enforcement to education and fire protection to garbage pickup. Although their role has been unconstitutionally diminished, states are still a unit of government of real significance. In most states, localities are as well.
The perceived sloppiness that ensues is the price of avoiding the consolidation of power and allowing for a multiplicity of governing and policy approaches that reflect the diversity that still exists in this geographically vast nation of 280 million people. Time and technology have not eliminated this diversity, or regional distinctiveness within the United States. A quick example can be found by looking at the red and blue electoral map published by USA Today following the 2000 presidential election. It signifies more than who voted for George W. Bush or Al Gore. Even beyond this, is there any doubt that New England differs from the Deep South or the Great Plains states?
Federalism often acts as what is known as the "laboratory of democracy." States experiment with a wide range of social and fiscal policies and their results often inform the policies of other states and the federal government. It is easier for people to move between states than to leave the country, an additional check on state governments that is not as effective against the federal government. This also causes states to compete for businesses and workers by fine-tuning their laws and public policies to make themselves more hospitable. This competition may introduce complexity at times, but it also benefits Americans.
Low taxes in New Hampshire have helped conservatives promote lower taxes in Massachusetts. (Thanks New Hampshire sorry about those Massachusetts transplants who have moved into your state to vote for bigger government!) Relatively low taxes in places like Arizona have pushed Bill Richardson, the incoming Democratic governor of New Mexico, to propose income-tax rate reductions that his fellow Democrats in the legislature failed to pass when his Republican predecessor first proposed them. States were on the front lines of welfare reform during the 1980s and '90s, with states like Wisconsin and Michigan (under visionary Govs. Tommy Thompson and John Engler, respectively) pioneers in this area. We benefit when states experiment with a wide range of policies among themselves and we have a basis for comparing their relative success or failure.
Instead of further centralizing government, why not devolve more powers to the states? Clearly, our big-government approach to the war on drugs has failed why not allow states to experiment with different policies in this area, from cracking down to outright legalization? Why not allow states to continue to experiment with vouchers and charter schools? Or privatizing their state medical programs and other services? Or working to further reduce violent crime? By sacrificing variety in a misguided pursuit of simplicity, we would lose all these opportunities for the sake of one-size-fits-all conformity.
While I agree that Congress should use its power to determine the appropriate jurisdiction of federal courts to restrain judicial activism, what's wrong with the various circuit courts? Having these rulings apply to particular circuits rather than the entire nation gives other states and the Congress time to formulate an effective reaction to inane court rulings. Moreover, there is no guarantee that by stripping away the states in favor of unmitigated, fully nationalized federal authority that judicial activism would not worsen. Nor is there any guarantee that the executive or legislative branches would conform to the specifics of Walker's proposal and behave in a less officious manner. True, there are mechanisms that complicate the enactment of federal laws, but these have not prevented either the expansion of federal power that Walker implicitly concedes have occurred or the regulatory binge that he hopes his proposal will be able to reverse.
More likely, added power would lead to added abuse with checks on federal authority lost and fewer means of escape for citizens. Even assuming that the increased centralization of power would take place with all the harmonization and government-limiting details Walker proposes, replacing our federal republic with a European-style unitary state would create enormous opportunities for an increase in the overall size, cost and coercive power of government. When the Anti-Federalists warned of similar opportunities during the debate over the ratification of the Constitution, such as misinterpretation of the general welfare clause or abuse of judicial power, some of these warnings proved accurate despite Federalist assurances to the contrary.
The largest problem with this proposal is that, barring a constitutional amendment state legislatures would be reluctant to disenfranchise themselves by ratifying, it is unconstitutional. While the Founding Fathers wanted free trade among the several states, this was not intended to give Congress the power to "end all intermediate regulation." The interstate commerce clause is not an all-encompassing provision that transcends the powers enumerated by the Constitution or bypasses the limits imposed by the Bill of Rights. It was not interpreted as being sufficient to end the controversy over slavery in the 19th century, despite its impact over commerce between the states and the Union itself, or the controversy over the prohibition of alcoholic beverages in the 20th century. It was liberals who appropriated the interstate commerce clause as one of the clauses they cite to justify their imaginary "living Constitution" that disregards the Framers' intent.
Walker's carefully crafted proposal is interesting and well intentioned. However, experience tells us that a bigger central government is unlikely to be conducive to conservative goals. We should heed the wisdom of our Founding Fathers, who formed a decentralized federal republic in order to maximize the potential for preserving liberty. Conservatives should also respect proper spheres of authority outside of government, such as the family and civil society. As Henry Cabot Lode once said, "Multiple jurisdictions and free associations are hedges against both tyranny and anarchy, against both cultural hegemony and civil disintegration."
Both our Canadian and American readers know too well that federalism does not guarantee liberty. Only eternal vigilance, as the Founding Fathers knew, can do that. But decentralism and intermediary institutions make our freedoms more secure. In the 21st century, decentralism offers the additional advantage of allowing government, in its proper place, to be more nimble and responsive. The conservative position should be to preserve the institutions that have made our republic successful.
W. James Antle III is a senior editor for Enter Stage Right.
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