Wednesday, April 13, 2011
Achieving Balance in American Federalism: On the Crusade of Texas’ Rick Perry
Posted by Find Insurance Online at 11:34 PMAs the governor, or head of state, of Texas, Rick Perry has been on a crusade to reinvigorate American federalism. Referring to the efforts of officials in the U.S. Government to secure the Mexican border, Perry said, “It is part of that frustrating paradox where Washington neglects their responsibility for areas clearly within their purview, while interfering in other areas in which they’re neither welcome nor authorized.” The chief executive was pointing to a little-noticed point concerning the expansion of the domains in which the federal government is active.
In going into a domain hitherto covered by the state governments, the federal government officials, including legislatures, the president, and even the justices assume that no downside is involved in terms of the federal government being able to cover its traditional realm. For example, in going into education policy, as in enforcing standardized testing, U.S. Government officials assume that the foray has no impact on the ability of the federal government to secure the Mexican border. Hence, Arizona’s effort was resisted. The assumption is erroneous. To the extent the U.S. Government’s actions on the border are insufficient, attention on education has an opportunity cost in terms of foregone attention on how to better secure the border. In short, the “attention pool” is finite even in an expansive federal government, so expanding into domains traditionally (and constitutionally) reserved for the state governments can exacerbate or compromise federal efforts in the traditional areas of the U.S. Government.
Accordingly, Governor Perry has sought to renew, or reinvent, American federalism, “taking an extraordinarily robust view of states’ sovereignty and an extraordinarily restrictive view of the ‘enumerated powers’ listed in Article 1, Section 8 of the [U.S.] Constitution.” (1) Such a renewal would shift the balance of governmental power in American federalism such that the respective domains of power would reflect the dual sovereignty core of federalism. That is, the power of the state governments and the general government would be in balance. As a result, each of the government systems (i.e., of the states and the union) could operate as a check on the other. As Rick Perry observes, federalism is “a critical part of the well-balanced American constitutional order.” (2) Such balance may be inherently elusive in any federal system given the nature of power to move in one direction or the other.
On one side of balance in favor of state governments, the tendency of power in a federal system could be toward dissolution, while once a federal system has crossed a threshold of greater union power, the tendency could be toward eventual consolidation. For example, whereas the E.U. is not in balance because the state governments have more power than does the E.U. apart from the state governments, the U.S. is not in balance because the U.S. Government has nearly consolidated power at the expense of the state governments. Both unions would do well to shift power domains between their two respective governmental systems in the direction of balance.
Federalism is particularly well suited to an “extended republic,” or modern-day empire, such as the U.S. or E.U. Considering that Ireland was a kingdom member of the British empire and a member state of the E.U., while Pennsylvania too was a member of the British empire, the E.U. and U.S. are thus commensurate, as are Ireland (and Britain, the host kingdom of the British empire and a state of the E.U.) and Pennsylvania. In fact, Britain (less Scotland) was a province (before it was split in thirds for political reason) in the Roman empire. Hence by broader implication, the E.U., U.S., British empire and Roman empire are all on the empire level, and their states/kingdoms/provinces (respectively) are on the same level. These two levels are qualitatively and quantitatively different.
Whereas an early-modern kingdom-scale polity can be diverse or homogenous internally, an empire is inherently diverse because its units are or could be reckoned as equivalent to the early-modern kingdom (i.e., the modern countries in Europe and the isomorphic American states based on the British colonies along the east coast of North America). Indeed, the prospect of the United Colonies was referred to on both sides of the Atlantic as “a potential empire” until 1776 when that empire was being realized as an alliance. In other words, the colonies were designed as replicas of the host kingdoms in the sense of the ancient Greek (rather than Roman) colonies. Both Ireland and Pennsylvania were members of the British empire (the kingdom of Britain being itself the host member). While federalism could be applied to Britain, Ireland or Pennsylvania (particularly where there is diversity within them), the system of government is particularly suited to compound polities at the empire-scale, given the inherent diversity at that level (or scale).
Federalism works well at the empire level because the inherent diversity can be accommodated rather than stifled. I suspect that the U.S. being on the empire level is not lost on Governor Perry. Furthermore, he makes explicit the point that the accommodation requisite for a federal balance is not easy, for it takes great tolerance. I submit that such tolerance in turn takes some awareness of the U.S. being on the empire-level (and scale). Referring to the tolerance needed, Governor Perry declares, “I’ll fight to the death for California’s right to decide for themselves how they want to live.” (3) He quickly notes that some of the implications are repugnant to him. For example, he recoils from the prospect of legal gay marriage and marijuana in a semi-sovereign republic of California. Of course, tolerance would be needed across the ideological spectrum.
It could just as well be said that liberal democrats in Massachusetts might recoil in utter disbelief in hearing that Kansas has outlawed abortion after the twentieth week (which occurred in April, 2011). Were more governmental sovereignty shifted to the states from the U.S. Supreme Court, state governments could outlaw abortion outright. Americans would have to confront the question of what they should insist on across the union, for what an American would be entitled to across the union would be narrowed as state governments take on more domains of policy.
It would be interesting to ask Governor Perry whether a fetus’ right to life is something that should be guaranteed to every fetus throughout the union, and if so, whether we would be right back at consolidation under the rubric of everyone’s “we all should stand for X,” where X can mark not only the spot, but the entire carpet. In other words, a balanced federalism means that the citizens of a union tolerate differences that they care about; one must be willing to say, “I don’t agree with that, but if the people of Texas want it, they should have the right to determine their own way of life.” This means taking seriously the empire-scale of the U.S. being constituted by republics.
Indeed, the U.S. Senate’s members are republics, not citizens. That is, that body is, strictly speaking, an international organization wherein the member states have equal suffrage. The U.S. House represents citizens irrespective of their republics and thus is of the species of national government. In this respect, empire-level governance reflects that of its member states even though the two levels are qualitatively different as polities and in terms of scale.
In short, the head of the government of Texas, Rich Perry, is aware of the need for tolerance in restoring the balance to American federalism (has there ever been such a balance?). Lest he is too successful, balance does not mean that the state governments hold most of the power. Hence, the issue is not “state rights.” Rather, the thesis bearing on American federalism hinges on balance as against either dissolution or consolidation. If a shift back to balance does occur, the challenge of design will be on how to safeguard the achievement from going too far in either direction. Theoretically, a design of checks and balances pitting ambition against ambition can conceivably sustain the equilibrium of balance. Perry’s crusade is thus not sufficient, even if it is a good start. As daunting as going into the head-wind of extant concentrated power is, the abstract work needed on design is perhaps even more of a challenge.
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Footnotes:
1. Kevin D. Williamson, “Rick Perry’s Tenth Commandment’s Washington Shall Not Micromanage,” National Review, April 4, 2011, pp. 28-31, p. 28.
2. Ibid., p. 29.
3. Ibid.
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