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How Two Governments Protect Liberty Better than One

The happy paradox of constitutional federalism is that two sets of government can protect liberty better than one.  This promotion of liberty depends on a federalism of different governmental spheres laid down in the Constitution itself. The Constitution enumerates and thereby limits the powers of the federal government– basically to provide national defense, protection of interstate commerce, and a few other public goods that state and local governments cannot provide.

The states are thus left with very substantial powers. But they are forced to compete with one another in market for governance that is intensified by a few federal constitutional guarantees–those of the free flow of goods, people, and speech across state lines. As the limitation of power protects against tyranny of the federal government so does the ability of citizens to exit protect against state tyranny.

Moreover, by decentralizing most legislative responsibilities constitutional federalism addresses a fact that we must never forget: federal legislation is an exercise in central planning by temporary majorities. National legislators have difficulty determining what is in the public interest in different places across a continental republic. And that problem cannot be solved by the national government  simply copying a state plan and putting it into effect. The diversity that constitutional federalists prize is emphatically not a way station to centralization, but the destination in an ever changing world.

Note too that constitutional federalism promotes accountability at the state  level by depending on the possibility of exit and thus works with the grain of human nature.   As Ilya Somin has discussed at length, voting is not much of a constraint on government, because people do have not have much self-interest in following politics: their individual vote is less likely to make a difference to policy than being hit by lightning on the way to polls.  But people can benefit personally by exiting a state with a bad economic or social climate to a state with good one. That gives them greater leverage.  The substance of federalism is perhaps the constitutional structures that best reflects the constrained vision of the Framers by leveraging the realities of human nature to protect liberty.

And following constitutional federalism today also reflects a realistic and constrained vision of politics, simply because it follows the constitution as written. Substituting some other kind of federalism as advocated by the new school of “national federalism” is an updating of the Constitution and constitutional updating is the essence of the unconstrained vision, because it puts trust in a small group of unrepresentative judges to do the changing.

An important part of the enforcing the Constitution as written is not permitting the federal judiciary to create new rights to restrain ability of the states to make their own trade offs between license and liberty. Abortion may be a moral problem, but the legal problem of Roe v. Wade is its assumption of a federal judiciary unconstrained by the Constitution  and thus a perpetual engine of national consolidation.  Any theory that permits the federal judiciary to create new rights against the states cannot be a theory that respects constitutional federalism.

Reader Discussion

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on November 21, 2017 at 08:35:51 am

Bingo. "Any theory that permits the federal judiciary to create new rights against the states cannot be a theory that respects constitutional federalism."

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Mark Pulliam
on November 21, 2017 at 10:21:02 am

The old problem of imperium in imperio. Madison, when he was infatuated with Hamilton, thought it an impossibility and the Virginia Plan he advocated included allowing the federal government a negative or veto over state actions. The compromise was the supremacy clause.

Here's a link to an Indiana Law Review article on this point by Alison L. LaCroix: https://mckinneylaw.iu.edu/ilr/pdf/vol45p41.pdf

This problem was successfully addressed by the early settlers of the Massachusetts Bay Colony. Between 1631-36, the settlers established the principal that they could taxed only by the majority vote of their deputies elected to the Great and General Court. They also established a separation of powers between the government of the colony represented by the governor and his assistants - collectively called "the magistrates" - and the town governments speaking through their respective open town meetings. All purely local matters and all matters where the amount in issue was 20 shillings or less were under the exclusive jurisdiction of the town governments. Settlers also vested the towns with control of the unorganized militia and prevented the Magistrates from deploying the towns' organized militia companies outside the boundaries of the colony. Disputes between the magistrates and the towns were settled by majority vote of the deputies in the General Court.

Suffrage to vote in the towns was extended to all lawful male residents and the common practice was to issue binding instructions to their deputies on how they should vote on matters of interest to the town in the General Court. However, suffrage to vote in colony wide elections, and eligibility to serve as a magistrate or deputy, was limited to "freemen" who had to be members of the established Independent (Congregational) churches where, after 1650, the majority of members were women.

In New England, the independence of the towns under this "Old Charter" scheme continued after 1692 when royal governors and judges were imposed. When Parliament passed the Massachusetts Government Act 1774, which shut down the town meetings, the citizens revolted and shut down the royal courts and ejected crown officials. Thus began the American Revolution.

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EK
on November 21, 2017 at 13:02:49 pm

Much is made, here and elsewhere, of the alleged benefits of "exit."
Yet, one may ask: Is it really of any import, in many instances, to *exit.*
While it may be something which is possible, even economically advantageous, for a large corporation, it may not be within the reach of the average citizen.
Moreover, given the extent and nature of "Cooperative Federalism" (see Michael Greve) "to what are you escaping?" - other than the same nationally imposed rules covering all manner of heretofore local behavior, obligations, liberties? The apparent difference now is that the State(s) under the influence of the Federales now puts its' imprimatur on the Rules. ( As an example) In short, no matter where you live, if water may be found at a depth of 2 feet on your land at any time during the year, you my friend, are the proud owner of a wetland!!! enjoy the wildlife! as i do! Ha!

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gabe
on November 21, 2017 at 13:17:10 pm

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XlV, § 1.

Judges didn't create these rights; we did. The stated purpose of the 14Am was to overturn Barron, empowering both the state and federal governments to protect the rights we retained. And if the State fails in this charge, it can be held liable.

We know. You hate Roe. But there is no coherent originalist theory that does not preserve it.

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Trevor Chase
on November 21, 2017 at 13:39:35 pm

McG: "Abortion may be a moral problem, but the legal problem of Roe v. Wade is its assumption of a federal judiciary unconstrained by the Constitution and thus a perpetual engine of national consolidation."

Nonsense. Unless a right is ceded to the government, it is retained by the individual. What the 14Am does is limit the States' power to deprive us of those rights. Roe only becomes a problem if you can show that the right to reproductive freedom was ceded and thereby, overcome Barnett's presumption of liberty. [Hint: You can't.]

As for personhood, that term was fixed in 1791/1868. You can't make a fetus a "person" without violating your vaunted principles.

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Trevor Chase
on November 21, 2017 at 13:52:01 pm

McG: "An important part of the enforcing the Constitution as written is not permitting the federal judiciary to create new rights"

That remark is senseless, coming from an originalist. Governments don't create rights, rather by definition. All a court can do is protect the individual from the tyranny of the majority ... and if the States won't do it, it becomes the duty of the Feds. And COTUS 2.2 (1868) was written to do precisely that.

Recognizing a right is not creating one.

Abortion is a moral problem ... that l am not presumptuous enough to solve for others. But the law is clear, and leaves a search for that solution to those who are directly affected by it.

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Trevor Chase
on November 21, 2017 at 15:14:15 pm

Yeah BUT;

Even Barnett admits that the State(s) may *regulate* rights; by that he means "to make regular", to impose some order and / or to assure that the rights of others are not abridged.

Let us assume that you are correct, i.e., "personhood" and further that there is no valid constitutional prohibition on abortion.
Can not the State, however, "make regular" how it is to be exercised?
Can not the State insist that such procedures be performed by a licensed medical doctor; that it be conducted in a suitable medical facility (a hospital, for example); can it not insist that the woman seeking abortion wait 24 hours (heck, 90 minutes for that matter); can it not insist that she also be made aware of alternatives; can it not insist that no such procedure be performed on any unborn child, say after, 16 weeks (recent (2 yrs old) case of a child born at 16 weeks having survived), etc.?

Yet, courts have consistently denied this "police power" to the several States?

And to make matters worse, California is now mandating that organizations dedicated to preserving the life of the unborn MUST now provide information to all their clients on abortion.

Question: which of these is an unlawful exercise of police power?

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gabe
on November 21, 2017 at 15:39:08 pm

"All a court can do is protect the individual from the tyranny of the majority ..."

Not so fast says Coach Corso!

Barnett, quoting the Founders and numerous Jurists, etc. allows that the purpose is to protect the individual from the tyranny of the majority and a factious minority.

comes now a time when we see that a Jurist has determined that the Us Army MUST pay for the medical procedures involved in *transitioning* a soldier from male to female. Where did the right to have someone pay for your elective surgery come from?

Or in previous decades that a resident of a state has a *right* to welfare payments notwithstanding that residents willful and repeated failure to comply with reasonable regulations (drugs, alleged fraud, etc).

As a general matter, yes, rights do not come from government; perhaps, we should inform the Judicial of that simple fact and they may be less likely to attempt to do precisely that!

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gabe
on November 21, 2017 at 15:48:59 pm

"...that term was fixed in 1791/1868"

Where and how SPECIFICALLY was it fixed? In 1868, "person" was deployed to cover the "freedmen." One searches the debates on the 14th in vain to find any discussion of fetal rights or the lack thereof. More specifically Bingham, and others, asserted repeatedly that the purpose of the 14th, while limiting State police power, was NOT to eliminate police power.

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gabe
on November 21, 2017 at 16:02:51 pm

What can a State do? They can certainly impose regulations designed to ensure the health and safety of the woman undergoing the procedure. What they can't do is impose arbitrary strictures intended to impair the woman's right. That is what "making regular" means. Allow me to illustrate:

Say that we passed a federal law limiting the number of bullets you could buy, and that you had to travel to Barrow, Alaska to purchase them after a 72-hour wait. Would you approve of this law and if not, why not?

Now, why should it be any different wrt abortion?

ln many rural areas, you have to travel 500 miles to get an abortion. The women have to take a day or even two off of work, and they can't really afford it. So, you want to insist that they wait 24 hours, and take another day off of work? And for what reason?

"Because we HATES abortion!" That is why it fails legal muster.

California's law is far more defensible than RW laws designed to defraud and harass women. lf you are going to hold yourself out as a "crisis pregnancy center," you should not be allowed to lie to the people who come to you for help. How hard is THAT one, Gabe?

A fetus of 16 weeks' gestation cannot survive outside the uterus. l rather suspect that you got that tale wrong. https://thechive.com/2014/08/06/a-baby-born-16-weeks-premature-makes-a-miraculous-recovery-35-photos/ Twenty-four weeks is the outer limit, even today.

lf COTUS wasn't so clear, you could make an argument that Roe was a decision worthy of Solomon. But that is not the COTUS we have.

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Trevor Chase
on November 21, 2017 at 16:13:00 pm

lf you are a soldier, you have medical benefits. How hard is that one? The salient legal question is whether that particular procedure is covered, and l have no way of knowing what the arguments for and against it were. The matter has been adjudicated, and unless you can show me that the decision was indefensible, l'll accept it.

Welfare payments are designed to keep our least fortunate citizens alive. Even winos. Are those regulations you speak of "reasonable"? l honestly don't know, my friend. l can argue both sides of the case.

Judges DO go off the rails. E.g., http://www.nytimes.com/1991/05/23/nyregion/libraries-can-t-ban-the-homeless-us-court-in-newark-rules.html (The judge used to be a HuffPo contributor, and l took him to task about it.) But by definition, a judge cannot create a right. Either we create benefits legislatively, or we have rights inherently.

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Trevor Chase
on November 21, 2017 at 16:18:58 pm

lt would be exceedingly odd for a Negro fetus of 24 weeks' gestation to be a "person," but a 24-year-old Negro man to be "property."

"Person" was a term of legal art, defined under British law long before COTUS used it. lt had not changed in the interim. And you are exactly right: no one even began to think that a fetus was a person. Ergo, there is no case to be made that the Framers OR Bingham had intended to bestow that status on fetal life.

The only way to fix McG's "Roe problem" is to amend COTUS.

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Trevor Chase
on November 21, 2017 at 16:27:23 pm

Dawg:

Help me out here.

Where may I find old case law on personhood / fetal status, etc. I have tried but simply do not know where to look. Hopefully, I can afford it!

" Ergo, there is no case to be made that the Framers OR Bingham had intended to bestow that status on fetal life."

Nor, that they believed it to not be possessed of any rights? nor that the 14th would result in an unfettered right to abortion.

So, I am looking for something a bit more specific that endows one with the right to abortion and conversely "un-endows" an unborn child of that right. This comes from a desire to understand this from a purely legal perspective not from any religious predisposition (which is an entirely separate matter in this case). Capiche????

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gabe
on November 21, 2017 at 16:40:25 pm

"California’s law is far more defensible than RW laws designed to defraud and harass women. lf you are going to hold yourself out as a “crisis pregnancy center,” you should not be allowed to lie to the people who come to you for help. How hard is THAT one, Gabe? "

C'mon, Dawg! You are accepting the California Legislature and Planned Parenthood's equivalent of "fake news." The claim being that these centers are lying, distorting, etc.

Now, even if true "Is there any requirement that speech be *true* to be protected? _ I think not, as do you, I am sure.

But there is a prohibition against "compelled speech", correct? It is inconceivable to me that a Legislative body would seriously consider compelling someone to profess views that they find morally or religiously offensive. Forget where one stands on the whole Roe v Wade issue; consider only being forced to utter statements and provide possible options to something you find repugnant.

BTW: The story I read was actually 20 weeks, My mistake. A personal note: One of the many things I did was to manage operations for a medical imaging (ultrasound) manufacturer. Thus, my take on the status of an unborn child is informed by my actual observations of the responsiveness ( ability to experience pain / pleasure, a certain level of *consciousness* (for lack of a better term)) of the unborn child. It is quite amazing and I must admit, moving. But then again, I am a "softie" when it comes to children - not so for Dawgs, however. Ha!

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gabe
on November 21, 2017 at 16:45:41 pm

Yep, I think the lede on that Newark Court decision was something to the effect:
"One man's stench is another man's perfume".

"But by definition, a judge cannot create a right. Either we create benefits legislatively, or we have rights inherently."

Fair enough BUT can it not be argued that the *benefits* created by this particular judge (who one can argue has legislatively created the benefit) assumes the character / status of a right.
You are correct in delineating between a right and a benefit and many conflate the two. My concern is that the conflation is aided by the Judicial determination to grant or enhance the benefit - and it thus becomes viewed as a right.

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gabe
on November 21, 2017 at 21:20:24 pm

Coke referred to the state of the law in his day in his lnstitutes. (He was personally critical of the law, but it was the law.) lf you want to go further, good luck! The Year Books are not searchable, and you will be looking for evidence of a negative. As for personhood, start in Blackstone. Personhood developed with the advent of corporations, which is where the notion of an artificial entity arose.

Blame Rome. The CL rule is traceable to canon law and even Jewish law, which held that the soul entered the body during the first breath. No need to do what you need them to do.

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Trevor Chase
on November 21, 2017 at 22:23:45 pm

gabe: "C’mon, Dawg! You are accepting the California Legislature and Planned Parenthood’s equivalent of “fake news.” The claim being that these centers are lying, distorting, etc."

Knowing those people and their insane zealotry, l have no doubt that they were less credible than Baghdad Bob.

gabe: "Now, even if true “Is there any requirement that speech be *true* to be protected?"

The centers created a fiduciary relationship. You have a duty of candor.

gabe: "But there is a prohibition against “compelled speech”, correct?"

One which does not apply here. When you sell a car, you are compelled to disclose whether the odometer has ever been tampered with. Same basic principle.

gabe: "Thus, my take on the status of an unborn child is informed by my actual observations of the responsiveness ( ability to experience pain / pleasure, a certain level of *consciousness* (for lack of a better term)) of the unborn child."

But yours is still a layman's take.

As for 20 weeks, 24 is about as close as you can cut it. "A few years ago, a baby in Germany actually survived being born before the end of week 22, which is a new record." https://www.easybabylife.com/premature-survival-rates.html Now, we're pushing 22 weeks, although the extreme premies often have great difficulty and permanent deficits.

l don't find the state of affairs in CA repugnant, but the notion that a OB-GYN can lie to his/her patients is so far beyond the pale that it should even offend you.

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Trevor Chase
on November 21, 2017 at 22:51:13 pm

lt can be ... and l argued the point with the Judge. He acted without warrant in law.

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Trevor Chase

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.