Tag: FederalIsm

Rehabilitating States’ Rights


BN Less PerfectI wanted to give you all a quick preview of my new book, coming out tomorrow. It’s called “A Less Perfect Union: The Case for States’ Rights.”

I know, I know: “states’ rights” is one of those taboo phrases in today’s politics. If you ask Americans about states’ rights, the reaction you get is typically negative — slavery, Jim Crow, and segregation. And yet, Americans happily embrace notions that are intimately related to states’ rights, such as federalism, community-based politics, responsive politics, home rule, local control, and “think globally, act locally.” In poll after poll, Americans trust their state and local governments far more than they trust Washington.

Why the disconnect? Over the past few decades, especially since the civil rights movement, states’ rights has been portrayed as a smokescreen for racist repression. It is a convenient way to demonize “small government” conservatives and tar them with the brush of segregation.

The Court’s Assault on Democracy and States’ Rights


One of the ironies of the Supreme Court’s decision in Obergefell v. Hodges is that it is being touted as a victory for civil rights. Surely it’s an unusual civil rights victory that disenfranchises the people of all 50 states on a critical issue. After a mere decade of political debate on the topic of same-sex marriage, the voters have been told that our opinions are no longer needed. Justice Kennedy will tell us what we think.

The violence to democracy is bad enough, but it is greatly compounded by the damage to American federalism.  The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity” or “autonomy” or any of the other vacuous phrases contained in Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

The Reverse Chesterton Fence


640px-WesttownFor a movement that prides itself on nuance, the Left is remarkably — if unsurprisingly — uninterested in questions of cost, externality, and unintended consequences. Once they’ve identified something as a good, the only remaining issue is marshaling the will to see it through; the details will sort themselves out.

The Right, however, generally accepts that life is complicated. Ideas have consequences, we’re apt to say, often with the strong subtext that they’re probably not all those we intended. As such, we’re more likely to resist the urge to fuss with (seemingly) imperfect things, lest we discover afterwards that they were far more beneficial than we understood or appreciated.

But this can cut the other way too. In the current issue of National Review, our own — how I love saying that — Kevin Williamson brings up an interesting example of this sort of reverseChesterton fence in his report on the effects of Colorado’s marijuana legalization:

Two More Questions for Epstein and Yoo


cover170x170Last week, I had the honor of having a post of mine discussed by professors Epstein and Yoo on an episode of Ricochet’s Law Talk podcast. The subject was the appropriateness of the federal government taking the lead on the Tsarnaev (Boston bombing) case despite the crime being committed in Massachusetts by two of its legal residents. Beginning at around 44:45, Yoo described the reasons in favor of it as follows (Epstein largely agreed):

[T]his is a terrorism crime. And the reason it’s a terrorism crime is because it’s politically motivated by people who are attacking us — and it just happens to be that the location is in Boston — because they disagree with our foreign policy and national security policies. And so, if this was just a guy who decided to blow-up a bomb in Boston at the Boston Marathon because he was crazy, or he hated somebody that was in the marathon, or wanted to get attention for himself, or any other variety of reasons that had nothing to do with terrorism, then he might be right…

He continues:

Tsarnaev and Subsidiarity


tdy_tur_boston_130711If you take a look at the charges Dzhokhar Tsarnaev was convicted of in federal court earlier this week, you’ll notice something odd: each and every one of them occurred within the Commonwealth of Massachusetts and each is thoroughly punishable under its laws. This begs a question that been bugging me for nearly two years: why on earth is this a federal case?

The obvious answer is that the Obama Administration saw a risk-free way to look tough on terrorism, while Massachusetts’s elected leaders were happy to pass the trouble onto the feds. Basically, a federal trial was politically advantageous to everyone involved and legally permissible. Done deal.

This is both absurd and offensive. The purpose of a federal government—such as ours was conceived to be—is to do only those things that the states are either incapable or ill-equipped to do on their own. Hence, its enumerated powers were limited to such matters as interstate commerce, national defense, etc. Not a single one of the charges against Tsarnaev directly refers to anything beyond the purview (or borders) of Massachusetts, unless one wishes to count the fact that his brother traveled abroad during his radicalization and that the duo purchased their fireworks in New Hampshire (private fireworks are, unbelievably, illegal here). Here’s how nuts the whole thing is: not only are the bombings being prosecuted as federal offenses, but so is the murder of Officer Collier, whom they shot, and the carjacking they perpetrated later that evening with the same gun. So is the use of additional bombs in their shootout with Watertown police.

Member Post


Note from the author: This post is a rewriting of my former post, 90 Varieties of Libertarianism: Which One Are You?  I am reasonably confident that the distinctions, definitions, and names given here are somewhat better than in the original; they are more precise, in what I think is a useful way. For further explanation, see the […]

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90 Varieties of Libertarian: Which One Are You?


Extreme state libertarianismDid you ever notice…

  • that it’s possible to prefer libertarianism for federal policy, and be a Marxist for your state?
  • that many on the Left do it the other way around? (I.e., the more they think nothing at all should come between little Julia and her father/husband/God/the federal government, the more they support Libertarianism for the state governments!)

Outlined below are four distinctions between various types of libertarianism, making for a total of 90 available libertarian positions.

What kind of libertarian are you? Mix and match from the different categories to find the name, and please object to these names and definitions and distinctions. Also, quibble over words since a good definition is a good thing; getting the definitions right is a good activity.

A Federalist Moment


(Click to embiggen)

By a factor of nearly three to one, Americans believe that state and local government is more successful at solving problems than Washington, D.C. In the just-released Heartland Monitor Poll sponsored by Allstate and National Journal, 64 percent of respondents said that more progress is being made by governments close to home compared to just 26 percent who chose the federal government.

What Justice Kennedy Got Wrong in the Obamacare Oral Arguments


In my new piece for Defining Ideas from the Hoover Institution, I’m taking readers through the Supreme Court’s oral arguments last week in the case of King v. Burwell, which will decide the fate of Obamacare subsidies in states that are serviced by a federal health insurance exchange. (I also covered this topic at length in Libertarian podcast with Troy Senik last week.) As I note there, perhaps the most inventive (and alarming) argument of the day came courtesy of Justice Anthony Kennedy:

In one sense the most novel argument of the day was an ill-thought-out suggestion by Justice Anthony Kennedy that the ACA might be unconstitutional if it were read to deny subsidies to health care policies purchased on the federal exchanges. Justice Kennedy never bothered to state whether his suggestion would require invalidation of the entire statute, or the creation of a massive subsidy that Congress itself had never authorized. There is, fortunately, no need to choose between these two unappetizing alternatives. Kennedy tossed off an argument that no one ever raised throughout the litigation: the denial of the federal subsidies would coerce individual states to set up exchanges in order to benefit their citizens.

Unlicensed Activity


Right now, In the state of New York, thousands of people are driving cars and trucks without prior vetting from Albany. Given the diversity of licensing standards around the country, it’s likely that some of these drivers have had less training than the Empire State requires of its own residents. Some of these drivers—sitting at the controls of massive hunks of self-propelling metal—may be dangerous. A few of them will take the lives of New Yorkers.

New York Senator Charles Schumer is presumably fine with this. As in the rest of the country, New York honors driving licenses from other states, though visiting drivers are required to abide by New York law. But substitute “handguns” for “cars”—despite the fact that the former kills about a third as many Americans as the latter—and Schumer changes his tune. Responding to Senator John Cornyn’s bill to institute a similar reciprocity system for concealed carry licenses as for driving licenses, Schumer invoked The Darkest Timeline:

Our National Goverment, Redux


shutterstock_17681746Here’s a pair of statistics to consider regarding federalism and subsidiary: about one-sixth of Federal spending is on (highly contingent) grants to the states, which constitute about one-third of the states’ revenue.

As James L. Buckley—former U.S. senator and older brother of William F.—details in his new e-book, this has two toxic influences. The most well known is that it creates inefficient wealth transfers. Officials in Washington craft policies that are either one-size-fits-all or based on second-hand or third-hand knowledge of local needs. These grants have so many strings attached that they’re nearly indistinguishable from federal laws administered by states, according to excruciating federal standards. Buckley recently gave a short lecture on the subject, courtesy of the Cato Institute.

Moreover, the separation of funding from spending ensures that federal officials get credit for spending on feel-good programs while state officials get to blame federal control when things go wrong. No one is responsible, while everyone benefits (except taxpayers).

Member Post


Over at PJMedia, I have a piece up today on how the FDA, the USDA, and Michelle Obama, not to mention ObamaCare, are ruining our and our kids’ health, while causing vast amounts of money to be wasted, based on junk nutrition science. It’s particularly worth getting up to speed on what a healthy diet […]

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The Truth About States’ Rights


As the 2016 presidential campaign gets underway, we can expect the usual savage critique of any conservative who dares to advocate states’ rights, as Rick Perry tried to do in the last cycle. The unspoken premise of such attacks is that “states’ rights” is a philosophy born in the antebellum South to defend slavery. Ergo, anyone who supports states’ rights today must be a closet racist.

A 2013 New York Times op-ed by Michael C. Dawson, for example, declared that “since the nation’s founding, ‘states’ rights’ has been a rallying cry for those who wished to systematically disenfranchise and exploit large segments of their population.”

Member Post


Jefferson, up on the Oregon border, is the first new state within the boundaries of the current state of California that I’ll describe in this series. It would be the most rural and smallest of the new states, with fewer than a million people currently residing in the counties that would comprise it. The population […]

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Whither Six Flags Over California?


Venture capitalist Tim Draper’s dream of six Californias, viewed as quixotic to many, seems to have come to an end with a judge’s ruling a few weeks ago that he didn’t buy enough signatures with his five-million-dollar investment. But has it?

As Walter Russell Mead notes, that it didn’t get enough legal signatures doesn’t mean that it’s not a good idea. California may not be too big to fail, but it is apparently too big to work.

Conflicted on Common Core


Recently, Troy Senik suggested that Common Core has the potential to be the sleeper issue in the 2016 Republican presidential primary race. Common Core, which effectively establishes uniform educational standards for English and math on a national level, is deeply unpopular among elements of the Right and it certainly has the potential to be a major factor in the selection of the next Republican presidential candidate.

Honestly, I haven’t paid a great deal of attention to the issue until now. I don’t have children, my own education was largely private, and is, in any case, completed. That said, Common Core is going to be a major issue facing our nation as a matter of both politics and policy. Consequently, I’ve been trying to determine my own position on the matter.