The Supreme Court’s doctrine of expansive federal power is much weaker than the original meaning of limited government.
Recent posts and comments on my humble federalism oeuvre—prominently, Richard Reinsch’s sensational post—invite careful thought and reflection. The gravamen, as I understand my critics, is that I’m too enamored with political economy (rationalism, and economics) and too dismissive of the civic, democratic virtues that make government work and last. At the end of the day, that may be right; I’d love to think and argue about it. But I’m in Indianapolis today and at Holy Cross tomorrow and on Thursday back in class again. A few hasty questions, then:
- Can you make republican government work for devils—in other words, create a machine that will go by itself? Heck no. Madison didn’t think so; I don’t think so; no one this side of Professor Kant does. But that doesn’t get you any closer to the federalism questions. As to which:
- Is there a reason to think that the demos will be better behaved, and more likely to exercise civic virtues, locally than at the national level? I can’t think of one, and much empirical evidence cuts against it. Even conceptually, the point seems doubtful. If the dominant civic spirit says, “mind your own damn business,” localism may be the way to go. Conversely, if the spirit of civic “engagement” and “participation” says, “help yourself to other people’s money,” a national scale might provide a barrier: it’s a lot easier to organize theft on a smaller scale. Might: You’re playing the odds here. But it’s an empirical question, not one of first principles; and the answer is contingent on the content of people’s character, not on the scale of government.
- Is it that local government instills civic virtue? My neighbors look perfectly congenial and sensible to me, and the social capital they invest is an enormous benefit. But they also “participate” in school and local “activities” that make me wish for a revolver. It’s very hard to tell where the balance lies. And I’m quite confident that local government institutions don’t instill or foster any of the good stuff. For the most part, they bring out the worst in people.
- Is there a reason to think that the people’s agents will be better behaved at one level or the other? James Madison—the Madison of the Convention and Federalist 10—thought that an “extended republic” would produce (more precisely, select for) better politicians. The recognition that this is obviously nuts struck Madison in the very first Congress. But it strikes me as equally implausible that the hacks in Albany or Richmond will be any more deliberative or responsible. Some legislatures will be better than Congress, and others will be worse.
More thoughts later.