For Bree: Part Three

Now for our final installment...

The Tenth Amendment seems pretty clear, on it's face:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But then there's this tricky little part...back in the beginning, Article I, Section VII:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

It makes sense that the federal government would be in charge of regulating commerce between the states, since giving that authority to the states themselves would be a never ending source of conflict and empowering certain states to regulate interstate commerce would necessarily give them an unfair advantage.  So, the "Commerce Clause" makes perfect, rational sense.

In 1787, what constituted commerce was pretty clear.  There also wasn't a large volume of commerce to regulate, and even when there were some goods manufactured exclusively in one state or several that were not manufactured in others, transportation was not that great, so it was fairly easy to get a handle on interstate commerce.

Enter progress...westward expansion, railroads, then cars and trucks, then airplanes...electricity, telegraph, telephones, Internet...holy crap!  What is commerce now, and how do we regulate it when we can't even define it?  Or track all of it? 

The Supreme Court jumped into the fray early on, in 1942, in Wickard v. Filburn, declaring that Congress did have the power to regulate commerce transacted wholly intrastate, or specifically in this case activity that did not even amount to commerce at all, if it had an effect on interstate commerce.  See, the federal government imposed limits on the amount of wheat any one farm could grow based on acreage in an attempt to drive up wheat prices during the Great Depression (and presumably help wheat farmers?).  Mr. Filburn was growing more than his allotted amount, but was NOT selling it.  He was just using it on his own farm, and for his own personal consumption.  But the fact that he was not buying the extra wheat he needed in the marketplace had an effect on that marketplace, and the wheat market was legally regulated by the federal government.

This one case forever changed the scope of federal power, because it allowed the government to regulate all sorts of activity that it could not before, so long as they could prove a link to interstate commerce.  It was sixty years until the Supreme Court backed off this interpretation and began re limits on what exactly can be called a link to interstate commerce, but the damage has already been done.

We see this debate vividly today, with regards to the health care legislation popularly called "Obamacare."  The Administration claims Congress has the authority to mandate individuals purchase health insurance under the Commerce Clause, because failure to do so affects interstate commerce since uninsured individuals still utilize health care services and often do not pay.  Opponents argue, however, that this is beyond the purview of the Commerce Clause, because the failure to purchase health insurance is decidedly non-economic in nature, even if it has effects on commerce as a whole.  Although Congress has been granted power to regulate non-economic activity that affects interstate commerce this presents a new and novel question (and one the Supreme Court is likely to take up) since the law essentially forces everyone to engage in commerce, rather than simply regulating a non-economic activity.  They posit, and rightly in my opinion, that it would be no different than Congress requiring everyone to purchase one carton of Florida Orange Juice per week, since the failure to buy Florida OJ negatively affects the economy of Florida and interstate commerce.  This is not the only constitutionally questionable provision of the law, but it is the strongest and most unique constitutional question that must be answered.

So...after basically composing a novel, I hope I explained the basis of Federalism, the foundation of my opinions about Federalism, and why I prefer more states' rights to more federal power.  You don't have to agree with me, and I strongly urge you to research the topic more on your own.  My only goal was to help you navigate out of the weeds of the issue a bit, because I know how I felt when I first encountered the subject in college.  I thought I'd never be able to understand it completely, then it turned out to be my favorite constitutional law subject.  Everyone's attracted at first to the sexy amendments...First, Second, Fourth...but over time the Tenth really grew on me, even though it's had a long and complicated case history.  It really is the most heavily disputed and most controversial of all the amendments.  I never expected to get so caught up in it, but then I ended up writing both of my theses on some variation of it.  It is critically important to the functioning of our government, and the security of our union, and I wish more people understood it and all its implications.

For Bree: Part Two

Now, let's get down to business...Madison also said:

"Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations; but, on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes."

"Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. "

At the time the Constitution was written we had already tried out a very Anti-Federalist government with the Articles of Confederation, and it was a massive failure.  Everyone agreed that we needed more centralized power in the federal government, but the states were not eager to give up power, either.  The challenge was finding a good balance between the two, and to create a document that could be ratified.  It was from these debates The Federalist Papers were born.

We all know how the story ends, so I'll skip ahead a bit.  The major reason that some things were Federalized and others not in 1787 is entirely practical.  It all boiled down to ratification.  We'd fought a hard war and won, and already tried a lax form of government.  The Founders spent a hot summer in a closed up room in their wool suits, pantyhose and wigs, and frankly didn't want to do it again.  They also didn't want the nation to crumble in infancy, so they had to come up with something everyone would agree on.  Other than the military, there is really no good reason why some powers were granted to the federal government and some to the states.  Some things make more sense under the control of the federal government, but in the end there was no "right" or "wrong" answer there, and they didn't have some magic formula for what would work in the long-term, they just knew what would or would not be ratified by the states.

Regardless of why it shook down the way it did, it is what we are left with.  And, ultimately, you wanted to know why having it set up this way is better than a stronger federal government.  Now that I've said all that I've said, I'll try and answer that question.

1. As previously mentioned, our government was designed to move slowly and deliberately.  Part of that plan was dividing the federal government into the three, co-equal branches that have completely separate powers, but which rely on one another to get things done.  That also prevents a concentration of power in one branch, which is supposed to ensure freedom.  Madison also famously said, "Ambition must be made to counteract ambition."  Ta da!  There you have checks and balances! 

But dividing power between the three branches of government wasn't seen as a strong enough check on government power.  That's why they gave certain areas specifically to the states.  If we further divide power between the federal, state and local governments you have just that many more checks and balances in the system.  Each level of government will guard their areas of power with a vengeance.  The dilution of government power is the best, and only surefire, way to limit tyranny.  It's kind of like the difference between peeing in the bathtub and peeing in the ocean.  Yeah, you are the only one peeing in the tub, but there's much less water so in the end you are basically sitting in your own pee.  Lots of things pee in the ocean, but there's so much more water, plus it's moving, that it's not really a big deal...even if everyone on the beach that day pees in the ocean, too.

2.  Some things are just better handled at the local level, because (like in the milk and cookies example) no one knows what they need most than the individual.  Sure, the federal government is capable of filling potholes but isn't that much easier to address at the city level?  Just like you'd prefer to shop at a locally-owned mom and pop store over WalMart, you prefer some services to be performed at the local level.  What does Mr. Joe Road Department Bureaucrat in DC care about the street in front of your house?  He never has to see it, or drive on it.  But Ms. Jane City Government does have to look at it and drive on it, and even if she doesn't she has to live on your town and wants it to be nice and livable.  She doesn't want people to move away because the roads are shitty, or not move their business's new headquarters there because of road conditions.  Local people have a stake in local issues and problems, and so they are better equipped knowledge-wise, and are invested on a personal level in solving them.

Further, not every city is the same and not every state is the same.  We worry about flooding, but that's not a major concern in Phoenix, AZ.  A one-size-fits-all policy just won't work on so many issues, and since everything is the government's business nowadays, the best solution is going to come from the people who live there among the problem and will have to live with the results.  Trying to centralize all of these decisions in the federal government will only work to limit choices (back to the milk and cookies example), and ultimately limit freedom.  And as Madison warned, it is not the violent revolution we must fear...it is the gradual encroachment on our liberties we must always be on the lookout for.  And just like with eating milk and cookies, one bite here and one sip there and suddenly you are all out of milk and cookies.  How did that happen?  I just had a whole box of Oreos and a gallon of milk a few seconds ago!?!

3.  Because states are smaller, and generally more homogeneous in population than the nation as a whole, they can serve as important testing grounds for other states or for potential federal policy.  Justice Brandeis called states "the laboratories of democracy" meaning that states should be free to try new and innovative policies and see if they work.  If they do work, then great, we've learned something that can be applied elsewhere to everyone's benefit.  Yet, if they fail, we've still learned something but without the risk of damaging too many lives, or the economy as a whole, or the nation as a whole.

If we limit states' ability to try things out we deprive ourselves of a valuable resource that is impossible to replicate in any other way.  Not only that, but we deprive ourselves of an important tool for keeping the union harmoniously intact.  The fact that states are generally homogeneous (demographically, economically, ideologically) allows each state to create the environment and society that its residents prefer and people are free to move between the states as they choose to find the locations that best fit their needs and beliefs.  Just as people in the "Bible Belt" prefer a more traditional, conservative, faith-based community that would anger most residents of California, people in the auto manufacturing centers like Detroit don't take kindly to California's strict environmental regulations. 

As Madison stated, and to which I agreed, factions are natural and not preventable.  Forcing everyone to live by the same standards and morals will only produce discontent.  This was the case with the Civil War and slavery, and again with Jim Crow laws and the Civil Rights Movement which we all agree now were the "right" or "correct" or "just" things to do, but the case isn't usually so black and white, cut and dry as with those examples.  People in the Bible Belt like Sunday Blue Laws and having the liquor stores closed on Sunday.  Is that wrong or right, or simply a matter of preference that doesn't really affect much?  And don't I have the freedom to try and change those laws, or to move somewhere else that doesn't have them if they are a major source of unhappiness to me?  As long as it's constitutional and doesn't infringe on anyone else's constitutional rights then it should be allowed.

For a long time this division of power worked well, and not much was disputed in terms of what was federal and what was state but times change, things change and the world became much different than it was in 1787.  The remarkable thing about our Constitution is that it has held up to the test of time despite all of the changes in society.  It has been amended and interpreted to accommodate changes the Founders couldn't have anticipated in their wildest dreams, but what we must always be careful of is changing the interpretation of the document so much that the original spirit and intent is no longer present within our application of it.

That is the issue we face today, and it's alot trickier than people want to admit.  Obviously, the areas of federal power were clearly enumerated in the Constitution but some of the vagueness in the Bill of Rights has come back to bite it in the ass.  

For Bree: Part One

It's been exactly two months since I posted anything here, but it's not for a lack of wanting to.  Things have been busy and hectic, and I have a backlog of things to discuss.  What brings me back here tonight, however, was an inquiry by an old, dear friend regarding Federalism.  Since Federalism is one of my favorite subjects and I'm completely overeducated in the area of political theory, I like to make use of my secret talents whenever they are required.  Particularly if someone is looking to increase their knowledge base and taking an interest in politics.


So, for you Bree...an introductory case for Anti-Federalism...never mind that you could read The Federalist Papers and get a more succinct debate than I'm likely to engage in...


Before discussing any political issue, it is absolutely essential to determine what your core values are.  I call these your "foundational beliefs."  It is a common joke about philosophy that you can argue the nature of anything, for how do you know that your "truth" is my "truth," or the "absolute truth" and that is true to a degree.  Without getting so far into the minutiae of debate as to question "how do you know that the color white is white?" you still have to determine what YOU believe to be true because those opinions will color your interpretation of everything else.  A difference in foundational beliefs is what will cause two reasonable people to look at the same thing (or body of evidence) and declare that it is two separate and different things entirely.  Example: one person looks at the health care legislation and calls it an unconstitutional, socialist attempt by the government to ration care and limit freedom by controlling access to health care.  Another person looks at it as a perfectly constitutional exercise of government power, that benefits the masses and makes everyone better off.  Why?  Their foundational beliefs about the proper role of government and the nature of mankind are like colored glasses through which they view all of the information.  If you always believe that more government is bad, then any policy that creates more government is going to be bad.


That said, my foundational beliefs are as follows:

• More government always equals less freedom.  If freedom is my ability to make choices for myself, then where a law makes that choice for me (or limits the choices I can make) I have less freedom.
• People are inherently good in that most people don't want to harm others if there is a way to accomplish the same ends without doing so.
• However, if people cannot accomplish their desired ends without harming people, they will typically choose to harm others because they are driven by their instinct for self-preservation and self-interest.
• Not all instances where people pursue self-interest are "bad."  In fact, the pursuit of self-interest is what leads to a vibrant economy in that people will benefiting others while benefiting themselves (that is basically the "invisible hand" of Adam Smith).  Example: I have cookies, but no milk.  You have milk, but no cookies.  So, I trade some cookies for some of your milk, then we both have cookies and milk and are both better off.
• People will naturally form (what Madison called) factions.  I do not believe there to be any device of mankind that can prevent this.  We will always think of "us" and "them" even when we do not mean it in a negative way.  This is my family, that is yours.  I live over here, you live over there.  Of course, factions can develop negative connotations and outputs (see Hitler, al Qaeda), but they are not necessarily "bad" at face value.

So, you are left looking for situations where you can get what you want, with the least possible harm to others, and with the maximum gain to yourself--if others also gain, then great.  I'm best able to make those decisions when all options are open to me.  Using the milk and cookies example again, let's say that you value your milk at one cup of milk to one cookie because you really don't like milk that much and you have lots of it.  you'd rather have more cookies and less milk.  But I really like cookies, and don't have that many, so I'd prefer to give you one cookie for two cups of milk.  Either we'll work it out and both end up with some division of milk and cookies that's satisfactory to both of us, or we'll both go away with what we started with and be dissatisfied.  We can then seek out others who are willing to value our items like we do, and complete a trade.


Now let's say that there is an overabundance of milk and a shortage of cookies, and it's getting difficult for anyone to trade milk and cookies because the people with milk are still not willing to give up too much milk in exchange for a few cookies, because maybe holding out will help them get a better deal later.  Or maybe someone will show up with cake, and you'd be just as willing to trade milk for cake as for cookies.  Now the government is upset because no one is trading milk and cookies, so they aren't getting their tax revenue off the milk and cookie trade.  The set the prices for milk and cookies, and declare that one cookie equals three cups of milk.  Before they did that, though, I came to the conclusion that I was just going to need more cookies in order to get the amount of milk I wanted, so I got to baking more cookies.  And the cake people figured out there was a hole in the marketplace and started baking cake and trading for milk.


I'm super excited because my cookies will now get me three cups of milk, and if the milk people don't like that, then tough.  I have lots of cookies, and I can get three cups of milk for each one.  Milk producers realize there's more to be had making cookies, in comparison to their milk, so they get out of the milk business altogether and start making cookies.  Now all of a sudden there's not enough milk, and way too many cookies and cakes.  The milk people are mad since they can't control the price of their milk and the cookie people are making a killing, even turning around and reselling excess milk for cake since they can buy it so "cheap" and there's a shortage on.


Rather than letting the owners of the goods determine how much they want/need of something and trading accordingly, the whole system has been thrown off balance because people not involved with the trades set the values and moved on.  Now, instead of repealing the cookie-milk price they try and regulate the price of cake to milk trades, and make it illegal for cookie bakers to trade in milk after they've purchased it, and it goes on and on and on...whereas, you and I probably would have settled on one cookie for a cup and a half of milk, since that's a happy medium that we both could have lived with, and would have been better off than had we not traded at all.


Kind of a stupid example, but hopefully it illustrates how making a law on something doesn't necessarily solve the problem and in every instance it will create a cascade of unintended consequences that need to be addressed, until you have a ridiculous amount of rules that completely limit an individual's ability to make the choices that will best benefit them, in that situation, at that moment in time.  No two people know what they need better than those two people, right then.

Now you are probably wondering why in my imaginary scenario, after the milk and cookie market collapsed under government regulation they didn't just deregulate the market and let us figure it out on our own again?  The answer to that is found in more modern political theory, although the Founders touched on it some.  It simply hadn't been fleshed out as a theory until after the industrial revolution, and it boils down to economics, as well.

You see, when we passed a law regulating the sale of milk and cookies we had to have a way to enforce that or the law was pointless.  Therefore, we created an agency to monitor the market and to dole out punishment when people violated the law.  A separate constituency was created that has a stake in the milk and cookie market even though they aren't directly involved in the manufacture or sale of the goods.  Those people don't want to lose their power, or their jobs more importantly, so they will protect their interests even when it's not in the best interests of the general public.  We were already collecting taxes on the initial sale of milk and cookies, but now we have these people to pay, and now we need more revenue.  They increase the fines associated with violating the law, which will increase the appeals and so forth.  Now you need more people to process all of that.  Suddenly the group of people dependent on regulating milk and cookies has grown.  You need special task forces to operate undercover stings, and that requires more money.  I know...let's make people register as licensed milk and cookie sellers and charge a fee for that!  Plus, that protects the consumer because they know they will be getting REAL milk and cookies, and not some contaminated crap from China!  Who's going to process the licenses?  More people, of course!  Now the little guy who was just producing a few gallons of milk a month can't afford to sell milk anymore so he goes out of business.  Only the big corporate milk producers are left, and they try to use their size to influence future policy and get some good breaks on the rules.  A whole other industry pops up with people who help defend (lawyers), or consult (accountants, etc...) people in the industry and help them navigate the increasingly complex rules and regulations.

It's hard to fault them, really.  It would be the same as any regular person walking into their boss's office and saying, "You know what?  I think the company would be better off without me, so why don't you go ahead and fire me?  My job isn't even all that important, so I'd just eliminate the position altogether.  In fact, go ahead and cut my whole department."  No one is going to do that.  The difference between government and a private business, however, is that a private business's growth is limited by the amount of money that can bring in from selling their goods and services.  The government just increases taxes, fees, penalties, etc... to keep funding their ever-growing enterprises. 

The Founders did understand that once government does something--be it passing a law, creating an agency, whatever--that it is highly unlikely that it will ever be repealed or cut.  That is always harder to do than to create it.  This is one of the main reasons they created our system to be cumbersome and slow.  Our Congress was not set up to act quickly because it was felt that no law is better than a bad law, and if it takes multiple steps and lots of time to pass a law, it will be better considered and more likely to have the proper support.

I also started this discussion by using an economic example, and that was intentional.  We declared our independence from Britain for lots of reasons, but primarily for economic ones.  It is also one of the foundational beliefs of our Founding Fathers that economic liberty is central to all others.  Without the ability to own property, and to create goods from raw materials and sell them, keeping the profits to care for ourselves and continue to make goods (or provide services) is the essential nature of liberty.  That which a man creates from his own labor and property is his.  I'm sure that you understand from your interest in Robin Hood, that "confiscating" the fruits of one's labors and/or property is a critical tool of tyrants and oppressive governments.  For most political philosophers who believe in democracy, liberty, etc...the number one function of government is to protect private property rights.  There is no other suitable body for doing so.

Madison said:

 "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."