The decay of the American republic ought to prompt a renewed zeal for the recovery of constitutional limits, not a grasp for the levers of judicial power.
I am strong advocate of liberty in society. Nevertheless, I don’t think of myself as a libertarian. First, many libertarians tend to engage in more reasoning from first principles and less reasoning from experience than I think wise. While in general individual freedom in a great social good, it is hard to define a priori the exact boundaries for freedom of a given society.
Moreover, while people do have rights, they also exist at a particular historical time and are to a degree constituted by social traditions. It is not, of course, that all these traditions are excellent and should be retained, but their too rapid elimination on the basis of abstract principles can disorient citizens as well as invite backlash against freedom.
As a result, I have been more attracted over time to “fusionism,” a combination of classical liberalism and traditional conservatism popularized in the modern era by Frank Meyer, which I see as giving a priority to liberty but offering respect for tradition. And tradition and liberty can be complementary as well as in dialectical tension. Under political structures conducive to liberty tradition offers some rough empirical guidance on the appropriate contours of freedom and constraints on imprudent changes during periods of political passion. And it provides a bulwark against destabilizing social change.
And nothing better expresses the essence of fusionism than sound federalism. Federalism ideally permits more local units of government substantial leeway to regulate and thus to define the contours of freedom. As Nelson Lund puts it, states can themselves choose to draw the line between liberty and license—a line that changes somewhat depending on the circumstances of the time. On the other hand, federalism permits citizens to exit from the states, if the line drawn turns out to be oppressive. And federalism also slows down social change, as some states will be in the vanguard and others lag. Sometimes, the vanguard will prove too adventurous and others will never follow: sober second thoughts are encouraged.
Here I am talking about ideal federalism, not necessarily the structure of federalism under the Constitution as originally created, even with amendments, or certainly not as remade under Supreme Court doctrine. The hard question for ideal federalism is what are the federal guarantees needed to make the system optimal. Certainly, these include the freedom of exit, which, of course, includes right of self-ownership. Free speech is also important so that citizens in one state can hear of conditions in others. States cannot be allowed to discriminate against citizens from other states, if exit is to be facilitated. Probably basic rights of due process need to be protected at the federal level as well. Otherwise arbitrary action by states make the effects of their laws less transparent and much more difficult for citizens to evaluate in their decisions of where and when to exit. And given the peculiar history of the United States, racial and ethnic discrimination should be prohibited.
Beyond that relatively modest list, federal restrictions on what states can are not obviously conducive to sound federalism. The right of exit allied to these other rights is sufficient to allow liberty to put tradition to the test.