The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
A Fistful of Federalism, Part II
In my previous post on this theme, I attempted to provide a friendly critique of Greve’s competitive federalism thesis by way of James Madison and his arguments in both Federalist 39 and the Virginia Resolutions of 1798. I wanted to show that Madison’s position challenges the notion that state governments are just revenue maximizing authorities. I also stated that maintaining free government requires more than self-interest; indeed, it requires qualities that are its opposite. Perhaps this last bit could be better stated. What we need are public virtues that compliment and make whole self interest.
But why should we have confidence that the state governments could ever perform in the capacity argued for by Madison? The question might be more basic: Why Liberty? To answer this question is to invoke another truth of American federalism and that would surely be its connection to the liberties of the human person as these find expression in the liberties of citizens, families, intermediate associations, and the liberties of local and state governments. The person is more elevated than government and pursues ends beyond the competence of the government. This is the essential truth of the Declaration of Independence in both its opening paragraphs and in its commitment to self-government. The error that the Declaration and the Constitution helps us avoid is the very modern political program of seeing only man and the state as the two objects that are of worth. Man and the state in practice has meant the state dissolves the individual by transforming him into an instrument for the state’s purposes. In short, the kind of Federalism we need is the kind that protects the social arrangements that most contribute to the capacity of a people for liberty, i.e., self-government, to continue to the course of our Founding.
Here we must temper our very American tendencies, somewhat. We are now prone to think that our liberties must be protected from the tyranny of the majority, which has increasingly meant what 5 lawyers in robes say is majority tyranny and individual liberty. But is tyranny of the majority the final concern for American federalism and the liberty it is to protect? I would argue that the deeper challenge to our liberties consists not only in tyranny of the majority but in the democratic individualism that Alexis de Tocqueville equated with the slow bleeding away of authority from intermediate associations and local and state departments of government to a central government. In short, under democratic individualism, America regresses to the modern norm of centralized government and atomized individuals.
Tocqueville’s deeper point here is not power for power’s sake exercised at levels that are closer to individual citizens, command is not the issue, but rather it is in the debating, the conferring, and decision-making on different courses of action in different layers of society that we actually can see ourselves in the society that we inhabit. We practice self government. So democracy without real federalism is wrong, not just because of debt and unaccountable government, but because it never connects with who we are as human persons who are defined by our relationships: familial, social, and civic that reveal us to one another. Self-governing citizens are citizens who freely determine themselves in any number of pursuits and projects. This freedom isn’t that of the isolated individual, but freedoms of communities to be self determining apart from the totalizing standards of national superintendence that operates under egalitarian ideology. We might call this, diversity, properly understood. So if you fail at this basic level of understanding the personal worth of federalism as an opportunity for the positive development of the human spirit and a check on the leveling tendencies of democracy, then it stands to reason that all manner of untoward consequences will follow. For these, you must read The Upside-Down Constitution.
Vincent Ostrom gave voice to this when he said
Those who continue to assume that the national government, because of its “federal form,” is competent to determine all matters that pertain to the governance of American society have fallen into two errors: that of neglecting the limited capabilities of those occupying positions of national authority; and that of considering citizens to be “more than kings and less than men,” so that they are presumed to be competent to select their national rulers, but incompetent to govern their own local affairs. The “federal form” of the national government is no substitute for a federal system of governance.
Ostrom’s point and Tocqueville’s point is that elections are pointless if you are governed by bureaucrats imposing standards and rules on auto-pilot regardless of your vote. As such, Voting is really a distraction or rather an abstraction from federalism when it is properly understood.
So we might finally say that cartel federalism is wrong for the reasons that Greve points to, but that it ultimately fails because it makes us instruments of nationalist design, co-opted partners who administer the handouts of incompetent national authority. We become less than we should be. Consequently, we lose the habits of American self government that make our freedoms count precisely because our free choices as citizens find their measure in a human-centered reality. But this might also point to a different understanding of how to recover an American federalism properly understood, one that doesn’t see our future as path-determined subjects by self-interested politicians who will finally run out of everyone else’s money, but a future forged by free men and women who dare to act with the courage, generosity, and love that a free government requires.