I have written before about federalism, arguing that a federalist approach is preferable to a top down imposition of either conservative or libertarian principles. I also wrote two essays on my view of government, the first espousing some general principles, and the second arguing, among other things, that my view of the ideal government inevitably points to a federalist solution. However, I have not, to my recollection, really put together the whole argument in one place. So, in this essay I hope to set forth precisely what a federalist state entails, including a (hopefully) brief history of the consolidation of power by the federal government, what principles argue in favor of such a government, and finally what benefits we could expect from such a state. Much of this will of necessity be material I covered in other writings, but I think putting it together in one place may make it easier to see how the various topics connect to one another. Also, with some luck, I will touch upon some new subjects which I have not previously addressed.

Let us begin with the most basic topic. What is a federalist government. Ironically, "federalism" has, in modern times, come to denote a more decentralized state. In the past, from late colonial times through the civil war, "federal" always represented the more centralized government, while "confederation" was taken to mean a more loose association. Then again, perhaps that is not so ironic. As our current federal government is more thoroughly centralized than anything Hamilton or Lincoln could have imagined, perhaps our view of federalism would still be considered quite centralized by the founders.

Our modern nation, though it pays lip service to the powers of the states, has become, in many respects, a centralized monolithic nation-state. Our states still retain more power than the provinces or other administrative districts in foreign nations, but they have lost much of their autonomy. The 16th amendment created nationalized taxation, the 17th amendment eliminated state appointment of senators, the creation of the Federal Reserve removed most financial regulation from the state's sphere, and the expansion of the FBI's powers in 1934 created nationalized law enforcement. Of course, these were only the final steps. So perhaps I should approach this in a more orderly fashion.

The government of the United States was pretty much a confederation/federalist system from the founding through the Civil War. The amount of power granted to the federal government shifted, but, in general, was limited to foreign relations, overall command of state militias in times of war, the suppression of rebellion, settling interstate civil suits and suits against the states, levying duties and tariffs, and, at times, the creation of  a national bank (though not a national bank in anything close to the modern sense). The only real break with this federalist tradition was the imposition of "slave" or "free" status on newly admitted states in the years preceding the Civil War. Other than that, the federal government largely left states to their own devices. Though moderns tend to view "states' rights" as code words for "pro-slavery" or "racist", at the time there were many who thoroughly supported states' rights, and it had nothing to do with slavery in the minds of many. In fact, even the parties opposed to the stats' rights Democrats, be they Federalists or Whigs or Republicans, also largely respected states' rights, they simply allowed the federal government a bit more power. No one was arguing for a centralized government of the form we have today, or even of the form we had in 1917.

After the Civil War the phrase "states' rights" went out of vogue, but the philosophy still had a strong appeal. There were some changes, moving us toward a slightly more controlling federal government. We had the income tax which had been created during the Civil War and persisted into the Grant administration. We also had the federally issued "greenbacks", paper currency nominally backed with gold, and given the status of legal tender by the government, which were also retired at last by Grant. However, the largest intrusion into state sovereignty was the 14th amendment, which provided for constitutional protections to apply to state as well as federal actions. But that was pretty much it. Though Lincoln had supported extending the power of the central government, and despite the loss of the party of state's rights, there was little expansion of power immediately following the Civil War. Yes, between 1865 and 1890 the federal government did begin to intrude into questions of banking, largely at the prompting of Salmon P. Chase, but excluding that, the era between the war and the progressive and populist movements  near the turn of the century, was remarkably free of expanding federal power.

It was only with the progressive, populist and reform movements swept both parties that the federal government began to truly intrude on the authority of the states. Initially, this was accomplished through the expedient of the interstate commerce clause, which helps to explain why most early federal regulations related to the production and sale of goods. From the pure food and drug act to the antitrust laws, the federal government slowly expanded the authority granted in the interstate commerce clause until they reached the point where they could stretch it to fit such non-commercial topics as those covered by the Mann Act (transporting across state lines for lewd purposes). Nor did the government limit itself to commerce clause assaults. Through the 16th amendment the government managed to successfully divorce funding from the states, and using the 17th amendment they removed the states' representatives from the legislature, making senators effectively allies of the federal rather than state governments.

After that things began to progress rapidly. By the time FDR started to expand the scope of the federal government, states' rights were a dead issue. His expansion of the FBI into a truly national police force, his shifting of control over the military from the states to the federal government, and his radical expansion of federal control over all things economic elicited little complaint. And, of course, following FDR, there simply were very few areas which were considered uniquely state interests. And those that remained state provinces were still open to strong federal influence, if not directly through legislation or regulatory oversight, then there remained the option of using federal funding. Power could be bought either directly, as in the funding provided by the Department of Education, or indirectly, such as the threat to withhold highway monies unless drinking ages were raised or mandatory seat belt laws were passed. And while a few states did attempt to hold out against such bullying, it says a lot that most of America saw them as anachronisms and the federal government's push for uniformity as the sensible position.

But none of that answers the question I first raised. What precisely is my vision of a federalist government? Do I simply want to turn back the clock? If so, to what era? If not, then how does my vision differ from what came before?

In most respects what I hope to see is quite similar to the state of affairs in 1800 or close to that time. I wouldn't want to pick a much earlier date, as I agree that the Supreme Court's role in reviewing federal cases for constitutionality should be accepted. There are some changes, but not many, mostly in the realm of removing the loopholes that eventually ate away at our federalist state.

As I wrote elsewhere, I view the state's role as being solely to prevent force, theft and fraud, as well as to settle disputes involving citizens in a peaceful manner. Though my view of federalism would prevent forcing this view upon the states, I would hope the federal government would abide by these principles. As local law enforcement is a state matter, and interstate crime should properly be handled by compacts between states, there is very little role for the federal government in criminal law. There may be some small number of police officers entrusted with patrolling federal buildings, consulates, military bases and other purely federal locales. However, as I do not believe in extensive federal land holding, such as national parks, there would be very few such places, and consequently few officers*.

The primary functions of the federal government would be threefold. First, handling negotiations with foreign states. As I do not believe that strict isolationism is a requirement for a free state, this would clearly be one of the most important functions. A second function would be the handling of national military affairs. I have not yet given enough thought to the size of the federal military relative to the state militias, so I can't provide any hard guide lines there, but I will say that the federal government, beside providing some military units of its own, would also serve the function of a high command, to coordinate strategies between the various state units. Finally, the federal government would provide civil courts to settle disputes between residents of different states, resolve suits in which the federal government is a party, and to resolve suits against the states. Beyond those powers, all governmental functions would be handled either by the states or by individual private citizens.

And what would those state government's look like?

I am sure some are expecting me to say that each state would have imposed upon it the libertarian principles I suggested above, limiting authority to protection form force, fraud and theft. Far from it. I would like to see the states left with unlimited power. Perhaps we would want to retain some minimal 14th amendment protections, restricting the ability of the states to arbitrarily deprive one of life, liberty or property, but, in reality, so long as the states cannot prevent free movement of citizens, there is no need to impose any checks upon the states, except the requirement that each state have a representative government. With nothing more than protection fo the right to movement and an elected government, we will begin to quickly see the benefits of federalism.

And what would those benefits be?

As I described before in several places, the first benefit would be the choice it would provide to citizens. Right now, with laws and regulations either promulgated form the federal government, or else forced upon the states through federal mandate, bribery or arm twisting, in many areas of the law there is but one version nationwide. Taxation, most business regulation, drug laws, and so on are all pretty uniform across the nation. Some are true federal statutes, some are state laws formed at the request of the federal government. In either case, citizens have no choice. If you don't like paying income taxes you cannot escape them while still remaining a citizen.

Under the federal system you likely could. While it is still possible all 50 states could pass the same law, it is far more likely that some variations will exist. In the best case scenario, there will be 50 completely different approaches from which to choose. Take taxes as an example. If you believe strongly in the FairTax, you can move to a state which has the FairTax. If you prefer flat taxes, look for a flat tax state. And so on.

But perhaps an issue isn't important enough for you to move. Well, there is still a benefit to the variety. For this system also allows us to compare various systems, to see if the FairTax is truly more beneficial than a flat tax, or if abortion laws do lead to other societal ills. We can see by the laws various states choose what the likely outcome of those laws might be. And should one prove clearly preferable, then it is likely other states will adopt that choice, leading to the best ideas, at least those that are clearly superior to others, spreading through most or all of the states.

And that spread also helps to make the changes more durable. Right now, for example, abortion laws are decided in the supreme court. That means one need only convince 5 justices to have the entire nation change overnight. But any victory can be reversed just as quickly. On the other hand, if we have 50 different shadings of policy, and one should start to spread due to obviously better outcomes, it si unlikely it will be reversed overnight. And even if some states should go back to old policies, it is still unlikely all the states shall revert to the other position overnight.

Finally, even in the worst case, the state,. or better the local government, is a better choice for the principle law maker, even if it exercises excessive power. Why? Because the more people a given legislator represents the less an individual voice matters. It takes hundreds of thousands to move the federal government. On the state level, depending on size, one tenth or one one hundredth as many people can have an impact. And on a local level, even fewer can make a difference. So even if the laws are bad and the government has too much power, the more local the place where that power is wielded, the more likely it is that the actions of the government will mirror the beliefs of the citizens it represents.

Besides the fact that it is more responsive, that it allows for experimentation, and will likely lead to the victory of the best ideas (which I believe would be the most libertarian solution), federalism has other benefits which we would feel immediately.

For example, if we repeal the 16th and 17th amendments, the risk of massive pork barrel spending becomes much less. When the states themselves fund the government directly, rather than allowing the government to tax citizens directly, there is little incentive for pork projects. After all, what state wants to send the federal government $100 to get back $75 in pork? Why not just keep all of it? And the senators, once again acting as the voice of state government, would be the voice of this fiscal responsibility. They would, as representatives of their states, fight to keep the money demanded from each state as small as possible, giving us the unusual spectacle fo politicians arguing against spending.

Of course some small states may think pork would pay them more than it would cost, that the burden would be carried by a few large states. However, I doubt this would be a winning position. First, the overhead in most pork projects would mean only a minority of states would end up profiting, so it would be very hard to raise a majority of supporters. Second, those state sin the middle, because of the uncertain costs of almost every federal project in history, would be unable to know with certainty whether they would suffer a loss or make a profit. So the likely would fall on the side of fiscal restraint. So in all likelihood the senate would have, at most, a small minority pushing for anything similar to pork barrel spending.

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When I started this I had hoped to write a comprehensive post on federalism, but as it has continued I realized a truly comprehensive post would take up more space and time than I have available. So, I think I will call this an introduction and cut it short. I will instead in the next few days write a few longish posts on individual aspects of federalism, as well as finishing my series of essays entitled "My Vision of Government".

To round out this essay for the moment, here is a list of my writing on federalism, which should help to flesh out some of these points.

A New Record
What we need
Why I Am Not A Libertarian
Standing By My Principles
A Simple Analogy
For Once A Concise Post
Prelude
The Virtue of Humility
A Brief Update
One Final Brief Note
Prelude
What I Want in a President
My Vision of Government
My Vision of Government Part II

As I said, the rest will be coming soon. Watch for more detailed examinations of each aspect of federalism.
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* The handling of Indian tribes is also currently disappointing and problematic. My suggestion would be to turn reservation land over to the local reservation government to distribute as they wish, and allow the citizens to form their own government. After that, all special recognition of tribes would cease. I would allow that any tribe which wants to could form their own nation, but there would be no special status for any individual within the US, Indian, Eskimo or other. From the formation of my federal system, the Indians in reservations would either become citizens of the state in which they reside or citizens of their own nation. No more would they inhabit that strange legal netherworld Indians now occupy.