That’s the question NYU law professor Rick Hills asks over at PrawfsBlaws:
So why do American libertarians think that federalism is consistent with their commitment to individual liberty? Why not, instead, support a strong national government that can suppress subnational trade wars and protect a robust set of national liberties? What’s the payoff, in terms of individual liberty, from protecting subnational jurisdictions’ exclusive jurisdiction over certain topics?
In other words, if government is bad, why do we want a multiplicity of governments – federal, state, local – all presumably restricting individual liberty in some way?
Well, with all due respect to Prof. Hills – who also graciously commended Cato’s brief in Comstock, in which we argue that that Congress cannot enact a civil commitment statute for sexual predators because there is no such enumerated power and it cannot be inferred from the Necessary & Proper Clause – his analysis erroneously assumes that libertarians (he specifically mentions Cato, our senior fellow Randy Barnett, and our adjunct scholar Ilya Somin) are results-oriented in our approach to constitutional interpretation. And we shouldn’t pursue federalism, he says, because it’s against our interests.
Both of these premises are flawed. I won’t go into much detail because Randy and (the other) Ilya have already provided reactions at the Volokh Conspiracy here and here, with which I agree. First , we like federalism because that’s the system the Constitution set up and luckily, the Constitution is, for the most part, a libertarian document. Second, the Framers set up the Constitution that way because the different levels of government would exist not to multiply power-hungry bureaucrats’ opportunities for mischief but precisely to disallow dangerous aggregations of power. So from the get-go there was no possibility of federal tyranny and, after the Fourteenth Amendment empowered Congress and federal courts to protect individual rights against state infringement, there was to be no state tyranny either.
And so, much as we like the strict limitations on Congress’s power – the express enumerations of Article I, section 8, the Commerce Clause, etc. – we also like the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment. There is thus no conflict between federalism as a structural constitutional provision that promotes liberty and other, “anti-federalist” provisions that also promote liberty. In practice that means there is no conflict between arguing that Obamacare exceeds the federal government’s authority while asking the Supreme Court to strike down Chicago’s handgun ban. The original meaning of the relevant constitutional provisions support both arguments – and both arguments enhance liberty!
It really is a remarkable document, this Constitution. Too bad its proper understanding has been lost.
For related thoughts on this fascinating debate, Randy proposes a constitutional amendment that might get us back to the federalism we once knew while (the other) Ilya dispels another of Prof. Hills’s minor premises, that European libertarians diverge from Americans on the issue of federalism.