Showing posts with label the US Constitution. Show all posts
Showing posts with label the US Constitution. Show all posts

Wednesday, April 13, 2011

Achieving Balance in American Federalism: On the Crusade of Texas’ Rick Perry

0 comments Posted by Find Insurance Online at 11:34 PM

As 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.

Click to add a question or comment on Rick Perry on federalism.

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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Friday, March 11, 2011

The General Welfare Clause: Is the Power of Congress Constitutionally Unlimited?

0 comments Posted by Find Insurance Online at 6:12 AM

Art. 1, Sec. 8. of the US Constitution: Congress “shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

Does this clause mean that the US Government can legislate in any way that benefits the Union? According to Thomas Woods, the general welfare clause “was a restriction on the power of the federal government: it had to exercise the powers delegated to it with an eye to the welfare of the country as a whole, not to the particular advantage of one state or section.”[i] That is to say, the Congress could provide for the general welfare of the United States only within its delimited powers listed in the US Constitution.

According to Thomas Jefferson, to interpret “general welfare” as granting the federal government an independent power to “do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.”[ii] In other words, why did the constitutional convention delegates bother to list the powers if the Congress could do anything it wanted? James Madison in the 1830s: “(I)t exceeds the possibility of belief” that those who believed in limited government “should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.”[iii] In Federalist #41:, Madison writes, “For what purpose could the enumeration of patriculars be inserted, if these and all others were meant to be included in the preceding general power?” He also observed that “(i)f Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, … everything … would be thrown under the power of Congress.”[iv] Therefore, in 1800, he concluded that “(i)n its fair and consistent meaning, [the general welfare clause] cannot enlarge the enumerated powers vested in Congress.”[v] We could generalize to say that any reference–directly or by implication–in the US Constitution to the powers of the Congress must be taken to refer to its enumerated powers or the document must be rendered as nonsensical. The problem thus arises when an enumerated power is stretched beyond its meaning even in a contemporary context. That is to say, we need not be limited to original intent (i.e., of the convention delegates) to find that the US Constitution limits the power of Congress.


Click to add a question or comment (and to view them) on the interaction of the general welfare clause and the enumerated powers on federalism in American constitutional law.

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[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 25.

[ii] Thomas Jefferson, “Opinion Against the Constitutionality of a National Bank,” in The American Republic: Primary Sources, ed. Bruce Frohmen (Indianapolis: Liberty Fund, 2002), 501.

[iii] Raoul Berger, Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987), 105.

[iv] Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Alfred A. Knopf, 1950), 129.

[v] James Madison, Virginia Report of 1800, exerpted in Document 5.

 

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Thursday, February 3, 2011

The Tea Party: Possibly Anti-War and Pro-State Spending

0 comments Posted by Find Insurance Online at 10:20 AM

Rand Paul claimed when he was the republican nominee for the US Senate from Kentucky that there is not enough money just in welfare to cut the federal government’s deficit. Approximately 40% of the budget is military. So the candidate said, “Part of the reason we are bankrupt as a country is that we are fighting so many foreign wars and have so many military bases around the world.” The Tea Party is animated by opposition to the exorbitant levels of federal spending and indebtedness. Applying their frugality to foreign policy, the party could make a clean break from the neo-cons. If one believes that bureaucrats are incompetent in running the healthcare system in the US, one is apt to be dubious of plans to have bureaucrats create democracies abroad. Also, we can’t viably fight the neocons’ wars with the supply-siders’ tax rates—and a bankrupt country cannot defend itself.

According to Randolph Bourne, in War is the Health of the State, “As a general rule, the longer a war lasts, the more centrally planned and government-controlled the entire economy becomes.” Robert Higgs wrote in Crisis and Leviathan that among the effects of WWI were “massive government collusion with organized special-interest groups; the de facto nationalization of the ocean shipping and railroad industries; the increased federal intrusion in labor markets, capital markets, communications, and agriculture.” Thomas DiLorenzo points to these quotes and adds that inflationary war finance “inevitably leads to calls for price controls, which inflict even greater damage on the private enterprise system by generating shortages of goods and services.” Such shortages in turn can serve as an excuse for even greater central-planning powers. The Tea Party could thus have good reason in going with its principles for opposing even a standing army. Rand Paul wants the federal budget to be 80% national defense. “So I believe that the defense of our country may be the primary enumerated power. Does that mean I believe in a blank check for the military? No.” This, in short, is the argument for why the Tea Party could come out against the war machine and protest along side the left—albeit for different reasons.

Rand Paul’s mention of defense as the primary enumerated power is interesting because it hints of another possible counter-intuitive conclusion. Although defense is not primary (as regulating interstate commerce—preventing war between the states is another crucial power delegated to the US Government), the notion that the federal, or general, government be limited to its enumerated powers and that this be reflected in its budget does not exclude the states engaging in social spending.  In fact, the notion of fifty laboratories befitting a federal empire (of states, or countries) implies that the state budgets take on social spending.  That is, the Tea Party being in favor of federalism could mean that social spending (and thus programs) are to be handled by the several states individually rather than by the general government. In being for this shift, the Tea Party is not necessarily opposing social spending (only that which is done by the US Government—the general government of the Union).  Rarely is this distinction made, which allows for the federalists in the Tea Party to accept even universal health-care in any state where the majority vote for it through their legislatures. We typically assume that if someone opposes a program in Washington that the person doesn’t want it at all; it could be that the person is oriented to re-establishing federalism rather than being opposed to the policy itself.

So the Tea Party could come out with a lower US Government budget, with a higher proportion being spent on defense (but less than today), and at the same time leave it up to the several states to decide for themselves what sort of domestic programs they way.  I contend that an ardent federalist in Texas would not necessarily oppose Massachusetts having a single-payer system of universal health care as long as the majority of the citizens of Mass wanted it.  The federalist would object to the program being applied by the US Government because it would apply in Texas and because it would exceed the enumerated powers delegated to the US Government by the states.

Sources: Thomas Di Lorenzo, “Inflating War: Central Banking and Militarism are Intimately Linked,” The American Conservative (August, 2010), 16-18.
W. James Antle, “Rand Plan: Will the Tea Parties Turn Anti-war?” The American Conservative (August, 2010), 8-9.

 

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