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The conservative case for a single federal code

By Bruce Walker
web posted December 23, 2002

In early December, I pointed out that even after leftism is recognized as dead, there are many serious policy issues upon which conservatives (those of us who reject the irrationality of the left) can engage in serious debate. Perhaps one of the most intriguing areas in which conservatives could have an honest intellectual debate with other conservatives is federalism.

Those of us on the right have traditionally viewed central government as bad and local government as good. There is a case, however, that what is most needed is not the decentralization of government, but the federalization of almost all government - provided the process worked to simplify the law.

Why would this make sense? The distances of time and space which made local governments essential have effectively vanished. Technology allows quick and comprehensive communication between peoples and businesses halfway around the globe. There are no practical problems with decisions being made by a central government.

The impact of global communication technology also has tended to remove regional cultural differences in the United States. State and local governments as a means of preserving traditions of a community has declined as people of all beliefs and ideologies are more able to communicate with like-minded individuals a thousand miles away than discordant opinions next door.

These two factors only remove the need for robust local governments; they do not make the case for centralized - or in the case of the United States, federalized government. There are several good reasons for supporting a highly federalized government.

First, state and local governments have become facades. Federal funding, federal regulations, federal judicial interpretations and other federal levers actually control government policy at all levels of American government. Acknowledging this prevents those uninterested in accountability in government from shifting responsibility for failed policies onto state or local policymakers.

Second, the modulation of federal policy by state and local governments through statutes, regulations, tax policies and so forth increase the complexity of compliance dramatically. Those who would act in American society today must look not only at federal rules, statutes, court decisions and interpretations but also all the volumes of state and local regulatory controls.

Moreover, as business and social activity naturally reaches across jurisdictional lines, very few activities any longer are confined to the borders of a particular state. Consequently, individuals intending to comply with both the spirit and letter of laws may find himself grappling with federal laws and regulations and the laws and regulations of two or more state governments.

What is the conservative case for essentially federalizing government? Preempt state and local laws and policies, and develop a single federal code to govern every area of regulation. This code implies congressional legislation, which can only be done by Congress. Such a code should not only remove policy making to the federal level, but also make all federal policies statutory. End, in one single federal law, the Byzantine process of administrative rule making, judicial decision making and the like. Legislative power, from which all other federal powers derive, is solely invested in Congress.

One of the many varieties of confusion in what the law requires is the inconsistent decisions of federal circuit courts in interpreting federal laws and the Constitution. It is almost as if the federal judicial system has superimposed another multi-state regional government made up of the various federal circuit courts. Congressional statutes are truly national in scope and can supercede federal court decisions by removing jurisdiction from federal courts to hear cases or issues.

This process of developing a single legislative measure by Congress which includes virtually everything that government regulates in America, would compel the ending of conflicts regarding what laws or policies mean. The interstate commerce clause is in the Constitution for a reason. Our Founding Fathers wanted to prevent states from creating a confusing mess of requirements for trade and industry, and to do this they granted Congress preeminent power. This power is also the power to end all intermediate regulation.

Federalization should be intended also to achieve a complete concordance of all existing laws. This would be particularly beneficial if all laws that govern us were not only stated in plain and simple text, but included for each section a commentary explaining the intention of the statutory provision. The Uniform Commercial Code is an excellent example of how this can work well.

What should be the final product? How about a book of a few hundred pages (commentary included) that includes virtually all statutory and regulatory provisions that can affect a citizen or business in the United States? How about a federal code which people of normal reading comprehension could understand, and which was definitive?

This process of enacting a single, vast federal statute should be to shorten and to clarify law as much as possible. All of the "law" America or any part of it actually needs could be compiled into one volume of a few hundred pages. It is the constant flux, the judicial uncertainty, and the endless variety of levels of laws and regulations that vexes us most about government.

The benefits would actually extend far beyond just these great benefits. It is very hard to actually enact federal laws, which is what any amendment to this federal code would be. Filibusters, vetoes, committee death, conference committee disagreements are among several ways to end any attempt to change federal law. This would mean that any change in law could be easily frustrated (giving us certainty that law today would be law next year) and would be conspicuous (meaning that slipping the slippery details of advantage would be hard) and would have to fit into the code (preventing conflicting statutory requirements).

People would also know who was actually accountable for the laws of the land. When state legislatures, city councils, state courts, federal circuit courts are all participants in the process, along with Congress, the President and the Supreme Court, then no one is really accountable. Buck passing is so common in our lives today that the notion of actual accountability by elected officials may seem frightening. That simply shows how far we have descended.

This accountability would also make political party platforms relevant. Consider what it would mean if a party convention espoused a specific change in legislative language, with the exact wording in the section of the federal code, along with the text of the commentary included. A party that won a general election with such a limited, but precise platform would indeed have a "mandate" for change.

This might even evolve into holding political conventions every two years, instead of every four years, and making the threshing out of real policies a serious part of the work of that convention. Candidates for Congress could be asked to sign pledges supporting the platform and to make commitments to vote for the language.

Such specificity would also make the machinations of committees, subcommittees and conference committees rather silly business. The text of the platform would be much more like a national referendum. The House of Representatives and the Senate could even adopt rules which required votes up or down within a few months of a new Congress on platform measures.

The reform could go even further. Our Supreme Court has declined to give "advisory opinions" on questions that have not yet come before it as a legal case. This is not constitutionally required or even essential to our English jurisprudential system. State courts, for example, often gave advisory opinions on laws and acts. A process of review by the Supreme Court on any lingering issues and the issuance of an advisory opinion could be provided for.

Most of us have come to view the federal government as the biggest bogeyman in our American political system. But it may be that clean, clear and strong federalization is the answer, not the cause, of our problems - if federalism simplifies, limits, and rationalizes what government expects of us. Not something that most of us conservatives would ever have thought helpful, but as we move into a post-leftist world, it may be just what the doctor ordered.

Bruce Walker is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.

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