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The Founders and Competition Between the States

At the Originalism Blog, Mike Ramsey discusses the justifications for federalism and how they connect with the protection of individual liberty.  He writes about how the enactors of the Constitution mainly supported limited federal powers on the ground that the states would be closer to the people and would more reflect their local values.  By contrast, he notes that most defenses of federalism today focus on competition between the states and how that places a check on the states from behaving improperly.

I agree with Mike about this, but I should also note that at least some of the people at the time of the framing appreciated something like the competition between the states rationale.  In my article, Reconciling Textualism and Federalism, 93 Nw. U. L. Rev. 819 (1999), I write that “at least some of the Founders believed that competition between local governments would deter them from behaving oppressively.”  I then cite to an Antifederalist, A Maryland Farmer, who wrote: “In small independent States contiguous to each other, the people run away and leave despotism, to reek its vengeance on itself; and thus it is that moderation becomes with them, the law of self-preservation.”  See 5 THE COMPLETE ANTI-FEDERALIST, supra note 69, at 5.1.53. 93:819 (1999).   A Maryland Farmer is normally thought to have been the nonsigning member of the Philadelphia Convention, John Francis Mercer.

Thus, at least some people at the time of the Framing understood the benefits of competition between the states.  In those days, however, relocation from one state to another was relatively rare (although some important framers had done it, such as both Gouverneur Morris and Benjamin Franklin) and therefore it might have seemed like a less important argument.

It is interesting to reflect on how changes in technology interact with constitutional arguments.  That there is more communication and trade between people of different states today is often thought to suggest that more national authority is justified now than at the time of the Framing.  And, depending on the version that one adopts of this argument, that may be true.  But the change in technology also suggests that competition between the states is now a stronger argument for federalism than it used to be.

Reader Discussion

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on April 04, 2012 at 09:37:37 am

Maryland Farmer is among the most interesting, to my mind, of the Antifederalist writers. The quote which you provide is but a small part of the gloss on a text not often considered a central part of the Founding: Gibbon's Decline and Fall of the Roman Empire, the first volume of which appeared in 1776. The portion cited by Maryland Farmer is instructive to read in its entirety:

"The division of Europe into a number of independent states, connected, however, with each other, by the general resemblance of religion, language, and manners, is productive of the most beneficial consequences to the liberty of mankind. A modern tyrant, who should find no resistance either in his own breast or in his people, would soon experience a gentle restraint from the example of his equals, the dread of present censure, the advice of his allies, and the apprehension of his enemies. The object of his displeasure, escaping from the narrow limits of his dominions, would easily obtain, in a happier climate, a secure refuge, a new fortune adequate to his merit, the freedom of complaint, and perhaps the means of revenge. But the empire of the Romans filled the world, and, when that empire fell into the hands of a single person, the world became a safe and dreary prison for his enemies. The slave of Imperial despotism, whether he was condemned to drag his gilded chain in Rome and the senate, or to wear out a life of exile on the barren rock of Seriphus, or the frozen banks of the Danube, expected his fate in silent despair. To resist was fatal, and it was impossible to fly. On every side he was encompassed with a vast extent of sea and land, which he could never hope to traverse without being discovered, seized, and restored to his irritated master. Beyond the frontiers, his anxious view could discover nothing, except the ocean, inhospitable deserts, hostile tribes of barbarians, of fierce manners and unknown language, or dependent kings, who would gladly purchase the emperor’s protection by the sacrifice of an obnoxious fugitive. 'Wherever you are,' said Cicero to the exiled Marcellus, 'remember that you are equally within the power of the conqueror.'" (Gibbon, Decline and Fall, vol. 1, Chapter III, last paragraph)

It is interesting to consider that the Articles of Confederation very explicitly recognized the value of exit and entry when noting in its privileges and immunities provision of Article IV that "the people of each state shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively..."

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Hans Eicholz
on April 05, 2012 at 01:24:58 am

A few years ago, in a flourish of silliness, an activist asserted that the percentage of gay representatives in the U.S. Congress should reflect that of the general population. There was also a popular notion that blacks in Congress were represented by other blacks, regardless of whether they shared a congressional district. Historically representative government has been allocated along geographic lines, and this makes sense, both politically and economically. It makes sense that people whose livelihoods come from the oil fields around Plano, Texas will have more interests in common with each other than they will with the fishermen from Worcester. The daily concerns of a delta farmer are likely to differ significantly from those of a Silicon Valley entrepreneur. there is after all a reason why states like Kansas are persistently conservative and Connecticut is otherwise; why Colorado Springs is crimson red and Boulder is cobalt blue.

People belong to far too many groups and categories to permit democracy to work on anything other than regional interests. The gay hispanic in Utah is represented by the religious, button down white guy, just as much as his peers in San Francisco are. One of the implicit assumptions of federalism is that discrete geographical entities have particular interests, and for the most part this is valid. When this is lost, because of Twitter or Skype or what have you, and when people start believing they have more in common with ideological allies in another time zone than with their local neighbors, there isn't much left for federalists to work with.

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z9z99
on April 05, 2012 at 01:28:03 am

The sentence "The gay hispanic in Utah is represented by the religious, button down white guy, just as much as his peers in San Francisco are." Should read

The gay hispanic in Utah is represented by the religious, button down white guy, just as much as his peers in San Francisco are by Nancy Pelosi.

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z9z99
on April 05, 2012 at 10:09:04 am

If we had our just and proper representation of between 6,000 to 12,000 we would be better represented as every Originalist must agree to. The Anti-Federalists stressed the point, their concerns did get the draft Constitution changed, but for naught now. No magic number based on theory or desires to exclude are valid, however, which is why increases are required, otherwise, decrease representation to further the oligarchy we have.

Representation for people is my concern, and their ability to be heard and their concerns taken for the purpose of representation. A basis on types of people will not be feasible, for who and what is endless.

Representation is why we have government, it's not to allow free-markets and free-trade. It's not to allow capitalism to have a free ride unfettered. Free is for people, not economics.

Free people and free economics equal anarchy. The road taken, which we had enjoyed for a good number of decades, has recently accelerated. We have already reached the state described by the author of 'The Tribune No. Xvii'.* These same evils are upon us now.

People who value greed and selfishness, are the same evil people we have to fight and overturn, then heavily control. The economic evils promoted today are destroying the country, and poisoning the minds of our people. Capitalism and our governments must have greater controls placed on them to insure our survival.

Deny these words - continue destroying my country. But, evil will be fought nonetheless.

These ethics / morals / and such, which drive our current capitalism, are derived not from sound thoughts, but of disturbed and troubled minds. Current economic principles are destructive in both effect and in accumulation. Current economic theory has destabilized the economy. With a furthering of these unsound theories and practices we have government, the source of implementation - assisting in the destabilization, creating yet more corrosive law.

Capitalism is destructive now. We must end its current format now. We must create a new economic theory. Clinging to the destructive theory of capitalism is foolish.

* Charles S. Hyneman, American Political Writing
During the Founding Era: 1760-1805, vol. 1 [1983]
http://oll.libertyfund.org/title/2066

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Eric Hodgdon
on May 04, 2012 at 00:17:18 am

A lawyer once told me "don't exepct to find justice in any American courtroom. The best you can hope for is to find the law." Like Duke Law 72, revenge works fine for me, too.

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Sanjeet

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