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To Restrain Populism, Revive Federalism

Classical political theory was concerned to blend both popular and aristocratic (or elitist) elements in a regime. A balance of these forces created a more stable political order. Too much populism risked chaos, gross mistakes, and wild policy swings.  Too much elitism risked insularity and lacked mechanisms for self-correction. And regimes that were either too populist or aristocratic generated a destructive backlash from the group that was excluded.

Classical political theory thus often built different estates right into the government, with a chamber of government that was the preserve of aristocrats and another that was reserved for the plebes.  The United States lacked a hereditary aristocracy and thus its structure of government does not come with mechanisms clearly demarcated as popular or elite. But there is no doubt the Framers designed the federal government to have more elite elements than the state governments of the time.  The Electoral College was structured to filter the popular will to elect individuals of substantial preexisting reputation.  The Senate also was indirectly elected and its long terms made it more likely that the wealthy would serve. The judiciary was the redoubt of the learned profession of lawyers, representing the cognitive form of elite that was rising in importance in the Framers’ day and has become dominant in our own.

States, in contrast, could be reservoirs of populism. In the critical period between the Articles and the Constitution, they had in fact often reflected populist policies. The Constitution was designed to counteract their worst excesses through giving the more elite federal government power over such matters as interstate commerce and the federal judiciary some control over such matters as the abrogation of contracts. But our system of dual sovereignty assured that populism still had a role to play in the many areas where no institution of the federal government was given power.

The power of states, however, has declined in our government and with it the popular element. Most obviously, the Court has been directly responsible for the diminution by interpreting the Fourteenth Amendment to override the popular moral choice of state citizens without warrant in the text of the Constitution, most notably on matters like abortion. But it also has been indirectly responsible by increasing the role for federal preemption of state legislation beyond express preemption and clear conflicts with federal law as contemplated by the Supremacy Clause.  Of course, many populist initiatives of state governments are ill-judged. But our structure of federalism allows those in other states to learn from those failures and those in the states with the bad policies to exit. It is thus far better to isolate bad populist impulses in particular states than risk a national backlash.

As it has weakened federalism, the Court has simultaneously made the federal government even more elitist by acquiescing in the rise of the administrative state, permitting very substantial delegation of both substantive and interpretive authority to a federal bureaucracy that also reflects the cognitive elite.

With the rise of populist figures as ideologically diverse as President Donald Trump and Senator Bernie Sanders, we may well be now witnessing the backlash against the elite element of government that comes from the excessive reduction of the Constitution’s popular element.  If so, the remedy for populism is not to stamp it out, but to restore the elements of our original Constitution that gave it greater play. We need a constitution that will bend to populist winds so that it will not break.

Reader Discussion

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on May 22, 2018 at 10:28:36 am

Professor McGinnis is being polite. The accurate term is “usurpation.” “Most obviously, the Court has been directly responsible for the diminution by interpreting the Fourteenth Amendment to override the popular moral choice of state citizens without warrant in the text of the Constitution, most notably on matters like abortion. “

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Mark Pulliam
on May 22, 2018 at 13:07:03 pm

Let us not forget that the States have been all too willing participants in their own demise succumbing to the promise of *Federal dollars" seemingly forgetting that those Federal dollars (at least not those conjured out of the ethereal printing press) come from their own citizens.

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Guttenburgs Press and Brewery
on May 22, 2018 at 13:23:03 pm

What parts of federalism would the author like to see come back? Jim Crow laws? Outlawing birth control? Inquiring minds would like to know. After all, if women are going to be forced to have children they don't want, should there not be some responsibility for the results?

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excessivelyperky
on May 22, 2018 at 13:25:03 pm

Heavens, that began with the Funding Act of 1790 when Hamilton redeemed his pre-ratification promises to the speculators [sound Federalists, all] who had been buying up state debt for pennies on the dollar and had the Federal government assume the debt and paid the speculators off at par and in gold and silver.

To my ear, it sounds like Prof. McGinnis is straining at a gnat, the ALJs, while swallowing a camel, the myth of a disinterested an neutral federal judiciary. C.f,; Matthew 23:23-25.

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EK
on May 22, 2018 at 20:08:11 pm

Is the 10th Amendment still in the Constitution, or has it been repealed? I realize that, as noted by the previous commenter, states rights have been used to justify some bad things, but I would submit that when you look at things over the long haul, we are under greater tyranny now than that we fought against to achieve our independence. The political class, whether the Senate or “The People’s House” are corrupt beyond belief, ringing up great personal fortunes while they govern us, and exempting themselves from the rules they impose on us. This includes both parties - the only thing they agree on is that they don’t want anyone else horning in on their game. The federal administrative Deep State is just as tyrannical, only unelected. Trump’s election and Sanders’ ascendancy (corruptly shut down by the Clinton-rigged primaries), are reactions against this. I’ll take my chances with devolving powers back to the states (as if it will ever actually happen).

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Richard Werther
on May 22, 2018 at 21:23:10 pm

Um, it sounds like somebody has been bamboozled by James Beard's economic interpretation of the Constitution, which has been thoroughly debunked by Robert E. Brown and Forrest McDonald.

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John Schmeeckle
on May 22, 2018 at 21:35:05 pm

Regarding federalism and originalism, it is useful to consult Vattel's "The Law of Nations," that leading 18th-century treatise on international law that provided the recipe for declaring independence and was "constantly in the hands of our Congress now sitting" according to Benjamin Franklin. I think it's fair to say that the authority of Vattel was universally accepted among the Founders, so his statement on federalism should be given great weight as we think through what the Founders intended as the Constitution came into being.

Vattel devotes two paragraphs to federalism in Book 1, Section 10 of "The Law of Nations," as follows:

"§ 10. Of states forming a federal republic.

"Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.

"Such were formerly the cities of Greece; such are at present the Seven United Provinces of the Netherlands, and such the members of the Helvetic body."

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John Schmeeckle
on May 22, 2018 at 23:13:40 pm

Jim Crow laws never were a legitimate expression of federalism. Even under a vigorous federalism, states are required to conform to the dictates of the Equal Protection clause of the 14th Amendment. Jim Crow were allowed to persist in the pre-1965 south not because the federalism contemplated by the Constitution permitted those laws, but because the judicial branch abdicated its responsibility and permitted Plessy v. Ferguson to persist. Blaming Jim Crow on federalism gives an unjustified pass to the same Supreme Court which gave us Wickard v. Filburn, turning the Commerce Clause into an unlimited power to regulate anything remotely economic, the same progressive court that allowed the extra-Constitutional administrative state to spread like kudzu.

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Daniel Artz
on May 23, 2018 at 11:12:24 am

https://www.journals.uchicago.edu/doi/abs/10.1086/673133?journalCode=apt

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CJ Wolfe
on May 23, 2018 at 12:36:30 pm

Given that the English language has the most expansive lexicon of all tongues, the widely accepted habits, particularly of writers, to use the same word and its derivatives to convey very different distinct, intents and connotations.

Such is the fate of popular, popul-ISM and popul-IST.

Similar is the fate of democracy and democratic.

Yet both derive from very similar subjects, populus or populi, the general public ; and, demos, the "segmented public.

So, to carry on the tradition, applied to the "American Experience," populism has generally been the description(s) given to observations of preferences and dissatisfactions being expressed in some manner by sufficiently broad sectors of the populace.

Those sectors may be regional, even quite local, when they relate to the impact of constraints or deficiencies of social instrumentalities upon personal conditions and conduct. Chief among those instrumentalities are modes of governance.

Under dispersed governances, the dissatisfactions (and their expressions will be dispersed and differentiated.

In a case such as the ever-increasing centralization of activities with such impacts emanating from The Federal Administrative State, dissatisfactions observed (by the time they are observed) will be more wide-spread, less choate (perhaps), and more readily available for economic and political exploitation by some; and attempts at remedial or ameliorating services by others - populists all.

One "price" of any supposed efficiency or effectiveness of centralization is the concentration of dissatisfaction with the impacts of "policies."

Look back over the history of "popular" or "populist" movements in the American Experience and observe they have been based on dissatisfactions. Those, in turn, have generated subsequent instrumentalities; The origins of an extra Constitutional Department of Agriculture; bimetallism, the Federal Reserve, etc., etc.

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R Richard Schweitzer
on May 23, 2018 at 12:49:33 pm

No, the Jim Crow laws were a natural outgrowth of federalism, because a limited federal government has to pick and choose its priorities, and in such a system, some amendments are more important than others. Just recently, the SCOTUS chose to emphasize a 1928 law regarding labor's rights, rather than the 1935 Wagner Act that superseded it. Best court money could buy!

Somehow I'm sure, though, that many of the commenters here were delighted by that ruling. After all, working people are uppity and how dare they ask for safe working conditions and decent pay!

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excessivelyperky
on May 23, 2018 at 12:50:39 pm

Yeah, it's so much easier to rig a primary than a caucus. Oh, wait, it's not.

And those silly women, gays and minorities should just keep quiet, too.

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excessivelyperky
on May 23, 2018 at 12:51:49 pm

Perhaps there has been dissatisfaction because the states weren't doing their job? Naah….

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excessivelyperky
on May 23, 2018 at 13:43:49 pm

If you can get that as your takeaway from what I said, you must be one hell of a lawyer. I said nothing of the sort and you know it. If you want something else to think about, I’ll give you this: you don’t win the presidency because it’s now “your turn”. You win it by being a better candidate than your opponent. Hillary was about the only person Trump could have beat, not because she’s a woman but because she was a miserable and utterly unlikeable candidate, with an elitist attitude that caused her to ignore half the country (her”deplorables”) in her campaign. But just yell sexism or racism and shut down all discussion. After all, you can’t argue with a sexist or racist, right?

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Richard Werther
on May 23, 2018 at 17:41:19 pm

" After all, working people are uppity and how dare they ask for safe working conditions and decent pay!"

Absolutely correct, Put the little buggers in chains and / or send them to the workhouses AND let us force all of them to have babies - LOTS of Babies. After all, they are nothing but smurfs anyway, there for our amusement.

How quaint a notion that Federalism is responsible for Jim Crow, a denial of womens right to slaughter an unborn child. No wonder this miscreant calls itself "excessivelyperky" - a quite apt descriptor of the modern MAL-educated type.

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gargamel rules smurfs
on May 23, 2018 at 17:45:24 pm

It is all this mal-educated creature can advance - simply another exercise in *regurgitative* political philosophy.

a little disgorgement here, a little there, pretty soon some nitwits believe they have a fine pie on display!

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gargamel rules smurfs
on May 23, 2018 at 17:48:27 pm

"Perhaps there has been dissatisfaction because the states weren’t doing their job? Naah…"

Now there is a decent measure of truth in that!

However, it must also be noted that now it would appear that the States are simply doing the job of the Federales - and that ain't being done all that well either!

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Guttenburgs Press and Brewery
on May 23, 2018 at 21:55:34 pm

“Just recently, the SCOTUS chose to emphasize a 1928 law regarding labor’s rights, rather than the 1935 Wagner Act that superseded it. Best court money could buy!”

That comment is almost as legally illiterate as RBG’s absolutely idiotic dissent. The hue and cry from the left over Epic Systems, Inc. is truly hilarious. When the left takes over the legal academy, nobody actually learns the law.

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Daniel Artz
on May 23, 2018 at 23:24:05 pm

Ooh, that really hurt! But considering the source, it feels great. Give a person a computer and a made-up name to hide behind and they get pretty brave.

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Richard Werther
on May 26, 2018 at 06:12:39 am

I detect in "excessivelyperky" a hint of excessively LawDog; could it be, under yet another alias?

Judging from, in the wake of the "Trumpster", how many Progressives seem to have suddenly rediscovered the genius of federalism, (at least in terms of how it may be exploited to undermine the President), it (federalism) may well be on the come-back, but at the hands of the most unlikely suspects...If they've opened the door, by all means, let us step (back) inside...

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Paul Binotto
on May 26, 2018 at 11:12:38 am

Ah ! Sir Paul;

You do touch upon a dilemma of the (Trump) "Resistance."

To "resablish" a strong enough(closer to "true') Federalism, for purposes of "undermining* a particular role in the Presidency, almost automatically alters many prime functions of the Federal Administrative State (at least leaving it to "serve" rather than "direct" State activities - which is very much a goal of those who have sought some means forthat result and are willing to accept a "Trump" administration for such results.

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R Richard Schweitzer
on May 26, 2018 at 13:05:57 pm

Many view Federalism, as either a proper end in itself, or as the means to an end: Liberty and Independence; in either instance, they will remain staunchly committed to Federalist principles and reject the tyranny of pure and centralized Democracy.

Alternatively, it would seem others have no particular commitment to Democratic, Republican, or Federalist principles, because to them, these are always only a means to an end, and that end, is usually some form of Socialism; whether it be Democratic Socialism or Republican Socialism, really matters very little.

At the moment, this second group is in "reactionary" mode; defensive, angry, and bitter to the point of neurosis . They are willing to cut off their noses to spite their faces, if it also means some of the cast-off blood will land in Trump's eye. Such undisciplined and rash behavior always occurs at the risk of mistakes in judgement and action; but the wise must know it won't last forever. And, neither will this opportunity.

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Paul Binotto
on May 27, 2018 at 12:14:19 pm

One might also add that the actions with respect to Federalism (U.S.), its preservation, its reduction (if not "elimination'"), its political "downgrades," the efforts to combat centralization that destroys it, need to be considered in terms of their impact on **individual liberty** , first and foremost - rather than "efficiencies," Constitutional "purity" or any other diversions.

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R Richard Schweitzer
on May 30, 2018 at 13:21:16 pm

Mr. Schweitzer,

I think, with this additional commentary, you have perfectly summed-up the rightful challenge and consideration that should be paramount as basis for every act of (self-) governing, that nothing more can or should be added.

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Paul Binotto

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.