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Every American Should Celebrate These Federal Election Results November 9, 2016

Posted by federalist in Federalism, Government, Government Regulation, Judiciary.
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I haven’t made as much time for current events in recent years as I used to. My news on the campaign concluded with yesterday’s election was mostly limited to whatever people would mention during conversation.

I learned this morning that the used car salesman was elected President, and that vociferous supporters of his leading opponent, a politician who should have gone to jail long ago, are in mourning.

When our federal government was smaller, and when it hewed more closely to its Constitutionally proscribed role, the person who held the office of President didn’t matter as much. Good leadership and good ideas can bubble up from anywhere, and the guy behind the desk in the oval office doesn’t want to go down in history as a monster. Recent years have shown us that as government has grown the President has acquired the power to inflict extensive damage through often subtle administrative actions that are quite difficult to check. On that score, the losing candidate, with her long history and proven expertise in abusing such power, seemed to me far more dangerous than the blustery winner. Trump seems more inclined to work in broad strokes in the light of day than in dark rooms through a thousand cuts.

This election was, however, absolutely critical in one regard: The future composition of the U.S. Supreme Court (SCOTUS). SCOTUS is presently evenly split between (liberal) activists and (conservative) constructionists. If a liberal had won control of the presidency the current SCOTUS vacancy would have been filled by a liberal, and that least-accountable branch of the federal government would have resumed its activist practice of “legislating from the bench:” establishing laws by judicial fiat that are nearly impossible to reverse.

Instead, we have a conservative majority in the executive and legislative branches that will allow SCOTUS to be repopulated with judges who respect the role proscribed by the Constitution.1 America may not appreciate how close it came to a long reign of judicial tyranny. But for that everyone should today breathe a sigh of relief.


1Trump has said his nominee will come from the list compiled with the help of the Heritage Foundation, a conservative think tank, and the legal group, the Federalist Society.

Democracy is not the ideal November 12, 2012

Posted by federalist in Federalism, Government.
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I’ve addressed this before, but Randall Holcombe does it best today:

“Democracy is two wolves and a sheep voting on what to have for dinner.” That quotation … sums up the ethics of democracy. Democratic outcomes are used to justify a majority claiming the right to impose their will on the minority.

To prevent the unethical exploitation of the few by the many, the American Founders designed a government with strictly limited powers. Government was not designed to further the will of the majority, but to protect the rights of individuals. Democracy’s role was limited to choosing who held political power, and providing a non-violent method for replacing them.

Over the centuries since the nation’s founding, the fundamental principle underlying American government has evolved from “liberty” to “democracy.” At one time Americans thought the purpose of their government was to protect their rights. Now the common opinion is that government should carry out the will of the majority. If the many want to take from the few, the ethics of this view of government justifies it.

Let us remember that America is supposed to be the land of the free. Our government was constituted to secure our liberty, not to practice democracy.

Charter Cities — Better Than the Free State Project February 3, 2011

Posted by federalist in Federalism, Government, Markets.
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The United States of America was supposed to be a federation of independent states. If the Federal government hadn’t so overstepped its constitutional bounds we would presently have a great experiment in which fifty States were free to test different polities, and some measure of competition between them would over time lead to and preserve good government. Sadly, owing to Federal overreach the States have been left with less power and freedom to shape their polities, so the Great Experiment has become a Modest Experiment: States still compete for citizens and businesses through tax and regulatory policies1. But no matter where you go you’re subject to the same Federal government that controls nearly 20% of GDP and whose regulatory power dwarfs that left to the States.

The Free State Project was an effort begun a decade ago to focus the political power of a large number of libertarians on a single State (ultimately choosing New Hampshire) where they would, as citizens, work to incrementally free the State from unconstitutional Federal rule.

Recently, “Tenthers” (so named for the Tenth Amendment) have been working more broadly to restore State rights under the Constitution.

But to me nothing beats the idea of a “Charter City” as promoted by Paul Romer: This would be a territory cut free from its donor government, governed only by its own charter. The Charter City would have its authority guaranteed by a strong and stable third party — Hong Kong under British administration was an example of this. Like free trade zones and for-profit states a charter city in a relatively unfree or poorly governed region of the world would expect to attract extraordinary investment, leading to exceptional growth and prosperity, which would hopefully be contagious to its neighbors.


1 The Mercatus Center has an excellent analysis of the current differences between states in its 2009 publication Freedom in the 50 States.

QOTD: Restraints on the ‘General Welfare’ Clause January 5, 2011

Posted by federalist in Federalism.
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The “General Welfare” and “Commerce” Clauses of the U.S. Constitution are among the most widely abused by our expansive federal government. Letters in today’s WSJ remind us that the Founders didn’t leave these open to interpretations that liberal courts and politicians have nevertheless applied. Arnold Nelson notes:

221 years ago James Madison clearly identified some common misunderstandings of the general welfare clause and explained what the Founders meant, clearly, thoughtfully, and I’m sure he felt finally, when in Federalist Number 41 he wrote: “Some . . . have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the [Constitution’s] power ‘. . . to provide for the common Defense and general Welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.

“Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it. . . . But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?”

And following that semicolon is a list of 17 other congressional powers, from “borrow money on the credit of the United States” to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” but not a word about health care, environmental protection, education, housing, etc.

Agorism: The Libertarian Answer to Marxism December 20, 2009

Posted by federalist in Federalism, Natural Rights, Special Interests.
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There is an interesting subset of libertarian ideology that goes by the name of “agorism” and which juxtaposes itself with Marxism: Where Marxism opposes the Capitalist classes who acquire power and wealth through free commerce, Agorism opposes the Political classes who acquire power and wealth through political action.

Objective crimes are those which infringe the liberty or property of another.  Agorists note that many crimes are committed through the coercive machinery of the State — in fact, the mere existence of a State divides society into plunderers and victims.  Meanwhile, a large number of what the State terms “crimes” are not only legitimate, but even heroic (“revolutionary”) if they undermine the State’s illegitimate activities.

State Interposition, Nullification, and Secession September 3, 2009

Posted by federalist in Federalism, Government Spending, Taxation.
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Interposition, nullification, and secession.  These are the means by which a state can check the power of a federation.

That is how American federalism was supposed to work. The three branches of the central government would check each other, but it would be up to the sovereign States to keep the central government itself in check. The Constitution was to be enforced through political action of the States not by the legalism of nine unelected Supreme Court justices.

That’s from Donald Livingston’s excellent essay at the Tenth Amendment Center.

“Interposition” brought to mind the recent gestures by several state governors to reject federal “stimulus” funds.  Those gestures were viewed as symbolic, empty, and perhaps silly because rejecting the federal money would not have had any real effect on federal power or spending.  They would have had real consequence had the governors truly interposed against what they claimed was unconstitutional federal spending: I.e., the concomitant gesture to rejecting the federal funds should have been the recovery and return to their states’ taxpayers all federal taxes that were supposedly being spent unconstitutionally.

Federalism Showdown Looms Over Gun Control July 21, 2009

Posted by federalist in Federalism, RKBA.
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Montana and Tennessee recently passed “Firearms Freedom Act” laws declaring that most firearms manufactured and traded within their respective states are exempt from federal gun laws and regulations.  The most significant implications of these state acts:

  • Federal Firearms Licenses are not required to manufacture or sell locally manufactured guns.
  • Locally manufactured silencers, short-barrelled guns, and man-portable smokeless-powder guns with bore diameters up to 1.5″ are exempt from NFA tax and registration.  Presumably “Any Other Weapon” devices are also NFA-exempt.
  • However, explosive ammunition and fully-automatic firearms are not protected by the Firearms Freedom Acts, and therefore still subject to the federal NFA and GCA.

Last week the BATFE sent letters to Federal Firearms Licensees in both states asserting that these Firearms Freedom Acts do not exempt licensees from any federal requirements.

Granted, there could be an administrative detente to this standoff:  When someone decides to obtain a Federal Firearms License (FFL) they are voluntarily submitting to federal regulations.  Therefore, a separate network of non-FFL manufacturer and dealer entities could stand up to deal in state-protected Firearms Freedom Act items.  In that case the BATFE would have to take the aggressive step of barging in on individuals engaged in state-sanctioned activity to assert that it has jurisdiction over them.  Hopefully the states will resist such an intrusion on their sovereignty.

[Update: FirearmsFreedomAct.com is serving as a clearinghouse for news on this sovereignty movement.]

What Doomed Federalism in the United States June 21, 2009

Posted by federalist in Federalism.
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Paul Starobin’s intriguing essay, “Divided We Stand,” covered the history of federalism and the prospects for “devolution,” or secession and geopolitical right-sizing of the United States.  Several letters follow up on the subject in this weekend’s WSJ.

The Civil War was probably the single most critical event in the destruction of states’ rights.  However Bob Jamieson suggests that the Sixteenth and Seventeenth Amendments to the Constitution really doomed federalism:

The Founding Fathers were no fools. They understood that those who are inclined to power are also tenacious defenders of that power once they have achieved it. That is why they insisted that the Senate be elected by the state legislatures rather than by popular vote. This was one of the checks and balances in the Constitution and it served us well for more than a century. By making the Senate answerable directly to the state legislatures, they were counting on human nature to prevent federal encroachment on the powers of the states. Before 1913, when the [17]th Amendment ushered in the popular election of Senators, the states had a powerful political presence in Washington. Today they have virtually none.

A second check on the power of Washington was eliminated when the [16]th Amendment was ratified, also in 1913. This egregious amendment authorized the federal government to subject the American people to a direct income tax, providing Congress with what it seems to regard as a bottomless purse to finance its ever more expensive Utopian fantasies.

If we are finally getting serious about devolving power from Washington back to the states, we must seriously consider the repeal of these two amendments.

Federalism Update April 27, 2009

Posted by federalist in Federalism, Taxation.
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The first assertions of state sovereignty occurred early in the history of the United States: Jefferson authored the Kentucky Resolutions and Madison wrote the Virginia Resolution. One generation later was the notable South Carolina “nullification crisis.”  In February I noted the resurgence of state sovereignty movements.  Christian Science Monitor had a good update last month.  This week Randy Barnett proposes a Constitutional “Federalism Amendment” to reign in the federal government, though I much prefer his simpler fix, which is to repeal the 16th amendment:

What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people?

One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code. Congress could then replace the income tax with a “uniform” national sales or “excise” tax (as stated in Article I, section 8) that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax.

Will States Restrain the Federal Government? February 15, 2009

Posted by federalist in Federalism, Taxation.
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The United States Constitution reserves all powers, not explicitly delegated to the federal government, to the states and the people.  Since each state is a sovereign entity, why do they tolerate such an enormous federal government?

A state government has real incentives to resist the encroachment of the federal government: Every dollar that the feds take in taxes is a dollar that the state can no longer use for its political purposes.  The feds can take that money and redistribute it for the benefit of other states.  Or the feds can use it as a “carrot,” only remitting the tax revenue to states when they comply with the wishes of the feds.  Either way, federal taxation takes power away from the states.  But the Constitution clearly gives states the authority to retain this power, except insofar as the federal government is spending it on a very limited set of enumerated activities.

If there was any doubt before, the recent “bailout” plans show the federal government plainly exceeding its enumerated powers.  Mark Sanford, Governor of South Carolina, is asserting that point, and suggesting that his state should not take any of this money.

The Pennsylvania state legislature is also considering a resolution that would “put the federal government on notice,” and serve as a preamble to repealing all extra-constitutional federal laws and taxes.

So long as the federal government is taxing and spending outside of its enumerated powers, the states would be justified in nullifying the taxation and prosecution of their citizens.  It would be quite easy for a state like South Carolina or Pennsylvania to simply announce that it is indemnifying its citizens against the claims of the IRS.  If the federal government threatened to send agents into a state to forcibly collect unjust taxes or imprison citizens who did not pay them, the state could not only call out its sheriffs and militia to defend its citizens, but it could also appeal to other states or countries for assistance in maintaining its sovereignty.  If the federal government tried to impound assets held outside of that state, the state could seize the assets of the federal government or its beneficiaries for recompense.

In practice, because the states are in fact sovereign entities, and because the federal government is in fact constitutionally restrained, it is likely that the mere assertion of a state’s rights would be sufficient to put the federal government back in line.  Governor Sanford: It only takes one state to start!

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QOTD: Restore Federalism to Washington December 28, 2008

Posted by federalist in Federalism.
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Antony Davies in a WSJ letter:

The founders’ protection against legal bloat was to limit the federal government in favor of stronger state governments. Had history unfolded differently, today we would have a market of 50 state governments competing with one another by offering the best governance possible at the lowest cost. The state governments would be checked in the same way that businesses (and school districts) are checked — when they failed to serve, people would walk away. Instead, the growing concentration of power in the federal government is making governance a monopoly industry. With less and less ability to walk away, the people have but one remaining “outside movement” for government overhaul — rebellion.

Randy Marsh weighs in on the subject as well in the same letters section:

Unfortunately, Washington has continued to assimilate all government unto itself, thereby reducing the states to beggars of the central government. This is a complete reversal of the Founding Fathers’ original intent.

Authority to Restrain Government December 1, 2008

Posted by federalist in Federalism, Government, Natural Rights.
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Americans believe that just and proper government derives its authority from The People and exists only to serve Their interests.  Also enshrined in our Constitution and civic philosophy are principles of individual liberty:  Natural law reserves to each human being the right to be secure in his life, freedom, and property.

The Founding Fathers tried to constitute a government with checks and balances that would prevent it from transgressing these principles.  But today’s United States Government is a far cry from their vision, and we have ample evidence that not only a tyrannical majority but also powerful special interests can usurp gubernatorial power to infringe the liberty of individual Americans.

Thomas Hamilton has a bold proposal for the proper course of action in these circumstances in his recent essay on “What to do when a government exceeds its constitutional bounds or infringes natural human rights.”  It’s not quite “revolution,” though our Founding Fathers fully expected that repeated revolution would be necessary to restrain our government.  Hamilton’s compelling argument is that a particular government does not have a monopoly on the authority that comes from the consent of the governed.  We happen to have a government that claims to be the sole and proper embodiment of the United States Constitution, but that doesn’t make it so.

Hamilton doesn’t advocate the creation of a competing government, but rather proposes that The People have as much of a right to create a separate authority to check the government as they do to establish the government in the first place.  He carefully tailors the nature of such a “Second Authority:”

It will only take action to obstruct or ameliorate the action of other agents (regardless of their authority).  By its nature and constitution it cannot initiate unprovoked action.

I assert that this qualification, along with the fact that its ideology should be grounded in the U.S. Constitution, makes its emergence plausible in the United States of America: All of the U.S. First Authority agents take an oath to support and defend the Constitution.  When the Second Authority credibly asserts that the First is acting in violation of the Constitution agents can in good conscience respect the conclusion of the second.

Essentially, under these criteria a body of citizens can band together to establish an organization that can legitimately oppose the U.S. government — with force if necessary.

Patriots may not like what sounds essentially like armed insurrection.  But there is no reason to believe that the existence of checks and balances, democratic action, or any other constitutional mechanism is sufficient to constrain a government from eventually violating human rights.  I am not confident that we can depend on our government to correct itself.  In practice nothing is perfect, but if checks and balances are working correctly then our government would eventually revert to its proper state, like a pendulum swinging back to center.  However I believe that our government has accumulated such power and so many bad precedents that it is now more like a pendulum on a tilting table … or perhaps like a pendulum that fell off a table and is rolling down a steep hill.

QOTD: Most Presidents Ignore the Constitution November 1, 2008

Posted by federalist in Federalism.
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From Judge Andrew Napolitano’s essay this week:

The truth is that the Constitution grants Congress 17 specific (or “delegated”) powers. And it commands in the Ninth and 10th Amendments that the powers not articulated and thus not delegated by the Constitution to Congress be reserved to the states and the people.

What’s more, Congress can only use its delegated powers to legislate for the general welfare, meaning it cannot spend tax dollars on individuals or selected entities, but only for all of us. That is, it must spend in such a manner — a post office, a military installation, a courthouse, for example — that directly enhances everyone’s welfare within the 17 delegated areas of congressional authority.

And Congress cannot deny the equal protection of the laws. Thus, it must treat similarly situated persons or entities in a similar manner. It cannot write laws that favor its political friends and burden its political enemies.

There is no power in the Constitution for the federal government to enter the marketplace since, when it does, it will favor itself over its competition. The Contracts Clause (the states cannot interfere with private contracts, like mortgages), the Takings Clause (no government can take away property, like real estate or shares of stock, without paying a fair market value for it and putting it to a public use), and the Due Process Clause (no government can take away a right or obligation, like collecting or paying a debt, or enforcing a contract, without a fair trial) together mandate a free market, regulated only to keep it fair and competitive.

It is clear that the Framers wrote a Constitution as a result of which contracts would be enforced, risk would be real, choices would be free and have consequences, and private property would be sacrosanct.

Everyone in government takes an oath to uphold the Constitution. But few do so. Do the people we send to the federal government recognize any limits today on Congress’s power to legislate? The answer is: Yes, their own perception of whatever they can get away with.

Secession and the Consent of the Governed February 22, 2008

Posted by federalist in Federalism, Government, Natural Rights.
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With Kosovo declaring its independence it’s a good time to ponder the perennial movements for secession around the world.  How can a government legitimately bind those who have not given their consent to be governed? A good friend recently pointed me to Lysander Spooner’s 1867 essay, “No Treason” — required reading for all discussion of natural law and just government.

Spooner’s thesis is that we are not traitors for refusing to submit to a government to which we did not pledge allegiance, or with which we have no contract. He argues at length that our natural rights to life, liberty, and property cannot be infringed by a government unless we have individually and explicitly agreed to join it. I.e., “We the People” cannot claim the consent of those who do not affirmatively sign on to that Body Politic, nor can it exercise just dominion over those who do not participate.

[T]he whole Revolution turned upon, asserted, and, in theory, established, the right of each and every man, at his discretion, to release himself from the support of the government under which he had lived. And this principle was asserted, not as a right peculiar to themselves, or to that time, or as applicable only to the government then existing; but as a universal right of all men, at all times, and under all circumstances.

One essential of a free government is that it rest wholly on voluntary support. And one certain proof that a government is not free, is that it coerces more or less persons to support it, against their will. All governments, the worst on earth, and the most tyrannical on earth, are free governments to that portion of the people who voluntarily support them. And all governments though the best on earth in other respects — are nevertheless tyrannies to that portion of the people — whether few or many — who are compelled to support them against their will.

His reasoning suggests a test for legitimate government: Can it survive if individuals have an ability to secede, or if it cannot coerce people to join? Clearly our present government would collapse if individuals were allowed to secede. However I believe our federal government as constituted could survive. Our goal, then, should be to return to a government that people would voluntarily join.

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Enumerated Powers Act December 19, 2007

Posted by federalist in Federalism.
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Straight out of every Constitutional federalist’s dreams: U.S. Representative John Shadegg has introduced the “Enumerated Powers Act.”  DownsizeDC.org offers a compelling introduction and explanation.

Political Market Efficiency August 4, 2006

Posted by federalist in Federalism, Government, Social Politics.
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Remember when all those Angry Leftists were threatening to move to Canada or France if Bush won the election?  Threats, one might say, “… told by an idiot, full of sound and fury, signifying nothing.”  (I believe virtually all of the Angry Leftists are still here.)

That’s not to say I don’t approve of the concept.  I wish there were a separate country for every political ideal, where like-minded individuals could feel at home and harmonize on their shared political beliefs.  After all, a melting-pot democracy like the United States in the end leaves every fanatic unhappy.  If you don’t have strong political feelings you’re probably at home in the United States.  But if you’re a communist, socialist, fascist, or libertarian of any stripe you’re living a gigantic compromise.

As a federalist I wish we could maintain a vibrant political market.  But we’re lacking two key elements:

  1. Compelling alternatives: Is there even a country in existence today that is practicing a strong political philosophy?  Or does the current spectrum just range between Muddled Democracy and Tyranny?
  2. Mobility: You can’t have an efficient political market if people can’t readily choose between the alternatives.  And since countries don’t move the people have to be able to.  Which brings me to a site I came across that looks interesting: http://escapeartist.com/