A Fistful of Federalism, Part II

In my previous post on this theme, I attempted to provide a friendly critique of Greve’s competitive federalism thesis by way of James Madison and his arguments in both Federalist 39 and the Virginia Resolutions of 1798. I wanted to show that Madison’s position challenges the notion that state governments are just revenue maximizing authorities. I also stated that maintaining free government requires more than self-interest; indeed, it requires qualities that are its opposite. Perhaps this last bit could be better stated. What we need are public virtues that compliment and make whole self interest.

But why should we have confidence that the state governments could ever perform in the capacity argued for by Madison? The question might be more basic: Why Liberty? To answer this question is to invoke another truth of American federalism and that would surely be its connection to the liberties of the human person as these find expression in the liberties of citizens, families, intermediate associations, and the liberties of local and state governments. The person is more elevated than government and pursues ends beyond the competence of the government. This is the essential truth of the Declaration of Independence in both its opening paragraphs and in its commitment to self-government. The error that the Declaration and the Constitution helps us avoid is the very modern political program of seeing only man and the state as the two objects that are of worth. Man and the state in practice has meant the state dissolves the individual by transforming him into an instrument for the state’s purposes. In short, the kind of Federalism we need is the kind that protects the social arrangements that most contribute to the capacity of a people for liberty, i.e., self-government, to continue to the course of our Founding.

Here we must temper our very American tendencies, somewhat. We are now prone to think that our liberties must be protected from the tyranny of the majority, which has increasingly meant what 5 lawyers in robes say is majority tyranny and individual liberty. But is tyranny of the majority the final concern for American federalism and the liberty it is to protect? I would argue that the deeper challenge to our liberties consists not only in tyranny of the majority but in the democratic individualism that Alexis de Tocqueville equated with the slow bleeding away of authority from intermediate associations and local and state departments of government to a central government. In short, under democratic individualism, America regresses to the modern norm of centralized government and atomized individuals.

Tocqueville’s deeper point here is not power for power’s sake exercised at levels that are closer to individual citizens, command is not the issue, but rather it is in the debating, the conferring, and decision-making on different courses of action in different layers of society that we actually can see ourselves in the society that we inhabit. We practice self government. So democracy without real federalism is wrong, not just because of debt and unaccountable government, but because it never connects with who we are as human persons who are defined by our relationships: familial, social, and civic that reveal us to one another. Self-governing citizens are citizens who freely determine themselves in any number of pursuits and projects. This freedom isn’t that of the isolated individual, but freedoms of communities to be self determining apart from the totalizing standards of national superintendence that operates under egalitarian ideology. We might call this, diversity, properly understood. So if you fail at this basic level of understanding the personal worth of federalism as an opportunity for the positive development of the human spirit and a check on the leveling tendencies of democracy, then it stands to reason that all manner of untoward consequences will follow. For these, you must read The Upside-Down Constitution.

Vincent Ostrom gave voice to this when he said

Those who continue to assume that the national government, because of its “federal form,” is competent to determine all matters that pertain to the governance of American society have fallen into two errors: that of neglecting the limited capabilities of those occupying positions of national authority; and that of considering citizens to be “more than kings and less than men,” so that they are presumed to be competent to select their national rulers, but incompetent to govern their own local affairs. The “federal form” of the national government is no substitute for a federal system of governance.

Ostrom’s point and Tocqueville’s point is that elections are pointless if you are governed by bureaucrats imposing standards and rules on auto-pilot regardless of your vote. As such, Voting is really a distraction or rather an abstraction from federalism when it is properly understood.

So we might finally say that cartel federalism is wrong for the reasons that Greve points to, but that it ultimately fails because it makes us instruments of nationalist design, co-opted partners who administer the handouts of incompetent national authority. We become less than we should be. Consequently, we lose the habits of American self government that make our freedoms count precisely because our free choices as citizens find their measure in a human-centered reality. But this might also point to a different understanding of how to recover an American federalism properly understood, one that doesn’t see our future as path-determined subjects by self-interested politicians who will finally run out of everyone else’s money, but a future forged by free men and women who dare to act with the courage, generosity, and love that a free government requires.

Richard Reinsch

Richard Reinsch is the editor of Law and Liberty.

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  1. Kevin R. Hardwick says


    You continue to deliver some profound thoughts, nicely packaged. Thank you.

    A few comments: You write: “What we need are public virtues that compliment and make whole self interest.” I very much agree, and this insight structures much of what I do when I am acting in my capacity as an educator. Before Michael Greve’s recent post (“Alright”) went egregiously astray, he posed (or perhaps better, I took him to pose) the question “from where do the virtues that are necessary to sustain (a desirable, maximally protective of individual liberty) government come from?” This is of course a huge and complex question, but one that I would much like to see further discussed here, since, as I have mentioned, discussion of it has the potential to enable me to do a better job as someone concerned professionally with civic education. If this statement is true, then civic education is something in which all of us have a stake, and doing it better is thus something that has some importance to it.

    Second–a technical question re your reading of Tocqueville. When I read Tocqueville, I do not read him as solely or even largely foreshadowing George Orwell. To my reading, Tocqueville is concerned with what happens when you strip out from a society all of the hierarchical elements that structured 18th and 19th century European societies. The cause of egoism–the danger on which Tocqueville is focused–is not a product of the rise of a vast tutelary government. Rather, it is a product of living in a society premised on popular sovereignty. So while I find your reading of Tocqueville plausible, I also think you are minimizing some of the other sources of peril, and likewise that you are not privileging the peril of which Tocqueville himself was most concerned.

    Anyway, I wanted to let you know how useful I have found your recent commentaries. Thanks for composing them.

    Well wishes,

  2. John Ashman says

    Some small insight here –


    FED’ERAL, a. [from L. faedus, a league, allied perhaps to Eng. wed. L. vas, vadis, vador, vadimonium. See Heb. to pledge.]

    1. Pertaining to a league or contract; derived from an agreement or covenant between parties, particularly between nations.
    The Romans, contrary to federal right, compelled them to part with Sardinia.
    2. Consisting in a compact between parties, particularly and chiefly between states or nations; founded on alliance by contract or mutual agreement; as a federal government, such as that of the United States.
    3. Friendly to the constitution of the United States. [See the Noun.]

  3. John Ashman says

    I think if you asked the average person to define “federal government” they would just think “large national government” if they even tried at all. Versus the idea that it is a contract between nations that delegates only certain, limited powers.

    Where I think the discussion gets lost in the weeds is when it gets overly philosophical. People aren’t philosophers. They’re mostly uneducated and largely pretty simple creatures that will often make the wrong choices in predictable fashion.

    So, the question isn’t how to view government, but how to create the rules for government so that it is effective, regardless of the ignorance and bad choices of the American people. It is wise not to count on the education, virtue and intelligence of someone, but to count on their miseducation, vices and stupidity, and protect themselves not from themselves, but from their politicians.

    • gabe says

      The point is to figure out some way for the “people” to overcome their ignorance, lethargy, etc (although I believe that the one follows the other). What is, indeed, lacking is a system that inculcates in the minds and hearts of the citizenry a deep and abiding respect for their own sovereignty and the understanding that rights do not exist without concomitant responsibilities.
      It will not suffice to simply label them as stupid. I suspect that this will not endear our postion(s) to them. However, it has proved successful for the Democrat party, now hasn’t it?

      take care gabe

      • John Ashman says

        I think most stupidity is willful as common sense is all that is required. Maybe a bit of courage and responsibility.

        Common sense is what you learn growing up on a farm, which is why it is dwindling.

        In the city you have noisy neighbors and stray animals and pest problems and other group issues that you believe are too big or too scary for the individual. Cities tend to be overwhelmingly blue. OTOH, small towns and rural areas, you know your neighbor, you certainly wouldn’t call the police on them, or have someone come and tell them to mow their lawn or take their dog. It is societal, not something that is taught in schools. It is not something that is really taught at all, but it is a product of experience and surroundings. You CAN teach it, but it takes a lot of teaching to overcome exerience.

        The problem is, how do you restrain, largely, city dwellers from trying to impose their values on everyone else.

        • gabe says

          I agree with you with respect to the “vaunted self acknowledged superiority” of city people as I happen to live on the outskirts of a metro area where all the young geniuses know enough to tell me how to live.

          However, it is not the social graces that we seek to instill in people; rather, it is a deep and abiding appreciation for individual sovereignty and natural rights that must be taught. Sadly, this is not done – nor is it to be found on farms, logging roads, etc – unless one is instructed in the beauty and meaning of our founding principles.
          Are there not Big Government democrats in Iowa, Wyoming, Colorado, etc etc?
          You are also right that in many respects stupidity is self imposed. However, it proffers itself as wisdom today and it conflates memory with thinking – and learning with wisdom.
          Living on a farm ain’t gonna change the way the dog barks, buddy. It is still gonna eat your food, poop on your lawn and still expect you to love it!

          take care

          • John Ashman says

            Well, we have a serious problem, because we now think that we have a “right” to health care or the “right” to vote.

            We take natural rights, and conflate them with arbitrary government privileges or guarantees. It would be nice to federally mandate classes on natural righ and the Consti……….oh, wait….well, fine, we might have to just try to stop manipulating human nature and do our best to lock out human nature in the political class.

      • John Ashman says

        Also, Gabe, how can we achieve this anyway, when we have 535 people in Congress and only 1 or 2 have ANY real clue about what the Constitution is. We have 9 SCJs that can’t agree on anything in the Constitution it seems and worse, the slim majority doesn’t respect the opinion of the slim minority that a law is unconstitutional, when a Federal law is, by nature, unconstitutional unless it can be demonstrated without reasonable doubt that it is.

        IOW, we can’t even get common sense and unanimity out of Constitutional “experts”. This isn’t a case of elder, intellectual statesmen trying to bring understanding, education, civics to the people, it’s a case of the people bringing confusion, bad education and anything but civics to government.

        At this rate, unless Republicans do a genuine makeover with Rand Paul as their coach, or unless the government implodes spectacularly, there’s no sea change coming.

        • gabe says


          John: (response is to your post preceeding this one – there is no reply tab for it)

          I would be the last person to suggest a Federally mandated course of instruction on Natural rights and the constitution. One can only imagine what a bastardized version of the document would be were the “enlightened ones” to develop it.
          No, I believe, as I think Kevin and Richard do, that such a civics education should be the province of local communities. I would think that this is something that you would support as it is clearly intended to be non-statist and localized.
          With respect to manipluating human nature, surely, you are just being silly here. Under your terms, any attempt to educate one concerning morals, virtue, political philosophy should be construed as manipulative. Indeed, posting on a blog such as this would be manipulative. After all, are we not trying to persuade one of certain beliefs that we possses and to dissuade in others what we construe as erroneous beliefs.

          But let’s do it on a local level.
          For surely, if we do not MANIPULATE, we must certainly slip into the most profound FATALISM!!!!

          take care

  4. gabe says

    I concur in Kevin’s assessment of your piece. Excellent and nicely & succinctly presented.

    With respect to civic education and Kevin’s point regarding Tocqueville, while it may be true that Tocqueville was more concerned with the effects of individualism / atomisation of society, perhaps the link is somewhat stronger than Kevin perceives. I thought Tocqueville was hinting at the danger(s) of a “tutelary’ government that may almost necessarily follow from an atomized individualist society. I think the issue of civic education in modern America supports this thesis.

    We have, here, previously discussed this (earlier commentaries on a piece by Ken Masugi) touching upon education, both civil and moral. Consider then, how, if we believe that this is important to instilling the proper virtue in the citizenry, can we effect such changes when almost all educational systems have been co-opted by Federal grants, directives and mandates. The situation is worse when one considers such mundane issues as textbooks. There is, after all, an economic incentive to publishers to gain approval for their texts from the larger (est) school districts and thus gain broad acceptance. I would venture to say that there is not a lot of courage involved in the editorial decisions made in the creation of these texts. There is rather an impetus to go along with whatever silly fashion that the bureaucrats / ideologues in power deem to be proper. Just today there is a piece on a new textbook on the Constitution that conveniently “bastardizes the 2nd Amendment to meet current political folly.
    When local school boards are no longer local but rather an appendage of a State, which is itself a dependent of an overarching Federal government, then perhaps we see the end result of Tocqueville’s fear. There is no effective counterbalance to this while we remain atomized.

    Just a thought! But then again I am probably still being fatalistic.

    take care
    BTW: Kevin, do you do an online course?

    • Kevin R. Hardwick says


      I tend to write on occasion in too compressed a fashion–my apologies for doing that here. I very much agree with you that Tocqueville hints at the dangers of a vast tutelary government. Hopefully all of us who read and learn from Tocqueville appreciate that! But I also think, because that is the part in Tocqueville that speaks most directly to our current situation, that his other lessons (lessons he himself thought more important and immediate) can be neglected.

      I wonder–and here I would benefit from the thoughts of those who have read Tocqueville more closely than have I–if the tutelary authority to which Tocqueville alludes is quite the same thing as an Orwellian, totalitarian government. After all, at the time that Tocqueville wrote, the Federal Government hardly had the potential to fulfill such a role. Just as plausibly, it seems to me, Toqueville could have been refering to what Rousseau called “the general will,” which arguably was present in 1840s American in a way that an Orwellian Totalitarian state was not, and indeed could hardly be imagined.

      Here is the passage from Tocqueville to which we are referring:

      “Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?”
      (Vol. II, Section 4, chapter 6)

      If the kind of public opinion, formalized via legal and political institutions–the kind of thing against which Emerson and Thorough protested–if that is what Tocqueville had in mind, then we are distorting his thought to apply it to 20th centiry totalitarianism. Of course, Tocqueville is good to think with–and ideas that are good to think with lend themselves to application in places their author did not intend. So it is hardly illegitimate or wrong headed to use Tocqueville in this sense to understand our own situation.

      But I do think there is something to be said for attending to the dangers of egoism to which he gave so much of his attention, and which tend (to my eye anyway) not to get much attention today. If our concern is the proper civic dispositions and commitments of the people, necessary to ensure the survival of the republic, then appreciating the dangers of egoism, and figuring out how to mitigate them, is something to which we should attend.

      I am intrigued by Michael Greve’s arguments with this regard, since he does spot light the ways in which local government fails in much the same fashion as larger government.

      • gabe says


        I agree wholeheartedly. I am no expert on Tocqueville (you should talk to my former teacher Ken Masugi who has edited / written on Tocqueville) but I also believe that he was very much concerned, and quite properly so with the desultory effects of egoism resulting from an individualistic society. The fear was that this could result in an isolation or detachment from the general society and its concomitant responsibilities to actively participate in self governance. With this comes a detachment from the core principles of the regime. I forgot who it was that said that our success in providing for a heretofore unknown level of prosperity would hasten our ignorance of what caused such success, but I believe that under it all, Tocqueville also recognized this. And thus, his assertions about egoism.
        With respect to Michael Greve’s arguments on the failure of local government, I believe that this is both true and was propelled by the ratification of the 17th Amendment which completely severed the last tentacles of the States bulwark against Federal dominance.
        Goodness gracious, I am getting fatalistic again.
        Anyway, take care

  5. John Ashman says

    This is also interesting, because if you ask a Trekker what a “federation” is, they are likely to say something completely different, as in science fiction, a federation is a positive thing, which other planets eagerly seek to join to share commerce and protection, as did our states for all of the previous years, less the last 63.

    At some point, something went wrong, because if our Federal government had stayed true to purpose, I do believe we’d have other countries asking to join us, knowing that it would open up trade, a flow of wealth, and peace while still respecting their culture and sovereignty.

    I think that is something we need to ask ourselves. If our actual system of government is so great, why are other countries banging down our doors to join? What is it we would have to offer now, except for a crushing bureaucracy, taxation and mandates on how they must live according to the desires of a bureaucrat?

  6. John Ashman says

    BTW, I’m still not sure what Michael’s thesis is. It hasn’t been clearly articulated, but it I am inferring that he believes that local government is equally as bad as large government.

    Even if that is the thesis, I see ample evidence that this is not the case. Witness the recall in Colorado, the ability to push back against unions, the about face in Albuquerque over traffic cameras, states going from blue to red because of poor management and debt ridden government, Indiana’s HSA program, even Detroit’s failure as a teaching moment instructs other politicians to say “we don’t want to go there”.

    But I honestly can’t tell because Michael’s communication style is exceedingly vague and philosophical, rather than pointed and clear. Perhaps that is typical professorial style, but, personally, I like direct. Steve Horwitz-style.

    • gabe says

      These are somewhat encouraging, yes. But they lack the force of concerted State action and would be ineffectual against the Feds as is evidenced by many past attempts (reinforced by the ‘fools on the hill(s))” both legislative and Judicial.
      I know you like nullification so I will include my response to a different blog (Nomocracy in Politics) posting on Calhoun and see what you make of it.

      Interesting piece! One can almost empathize with the “nullifiers” until you consider the following:
      “The effect of Calhoun’s relative homogeneity and shield arguments is to delegitimize from the outset any national action to protect an internal minority against a state-level majority.”
      Now while this may have initially referred to slavery, please substitute any other group or interest that may make claim to injustice and it becomes apparent that nullification may be unworkable in practice, if not unconstitutional.
      Yet, the problem remains: How does one address an overreaching federal government?
      a) Can one State, acting on its own, nullify a Federal Statute? Clearly not, as that defeats majority or consensus rule. However, what if, a majority of States, or even a super majority were to do so? Would this not be consistent with the theme of the “extended Republic” and would it not also be consistent with consensus rule?
      b) compare this to our current “check” (from an overdrawn bank account, perhaps?) via the Judiciary. do we submit to the whims and fancies of five fools in “Black robes”?; with no apparent check on their conjurings and divining of penumbras?
      Ultimately, Calhoun may have defeated himself because his objection was “static” in that it was primarily based upon a defense of the indefensible (even the Tariff issue was cotton / slave based) and he did not seek to enlist other States in a concerted effort to recognize the need to provide an effective check on the government and to show how this may have benefited the other States as well.
      Had anyone considered that prior to the 17th Amendment that a form of “de- facto nullification was possible. Had the states really considered concerted action against an oppressive Federal government, why not so instruct their US Senators to defeat or repeal any such legislation or face removal or loss of nomination from / to the US Senate by their home Legislature(s).
      Did not Madison and others see the States as exercising this “constitutional variant” of nullification?

  7. Kevin R. Hardwick says


    Thank you for your kind words. At the moment, I do not teach anything on line, although I have done so in the past. In my experience, such as it is and for what it is worth, on line classes work best when the people taking them are highly motivated. I found teaching on line to be very labor intensive–much more so than in a face to face environment, and likewise frustrating in the sense that I never knew if I successfully engaged students in the material. A lot of what you do, in a civics course properly conceived, it to make the case that this stuff matters to people who initially are disengaged. I found that difficult to do on line–the course worked well for the few who came into it already engaged, and poorly for the many who did not. There is a sense in which, as an educator, I cannot teach anything–all I can do is to create a framework within which a motivated student can learn. And part of my job is to address the issue of motivation–the “who cares” or “why should I commit myself to this” question. This is best done in person. For this reason, I worry that MOOCs will displace in person instruction, since if they do, they will educate those who least need the education, and will leave untouched the majority who lack the motivation to seek out the instruction in the first place.

    The constraints I face have little to do with Federal government intervention or distortion, and much to do with the fact that so many of my peers have chosen to take their interests and energies in different directions than those I find most important. In the early 1970s, historians turned their attention in two related directions–first to the experience of those who are not “elite,” that is to say, educated, literate, and wealthy. And second, they focused on those who were victims in one fashion or another of oppression or (borrowing from French scholars) subjectivation. There were some salutary achievements from this dual turn–the recovery of stories of increasing liberal autonomy for various groups of people. So it is a mistake to be too critical of the work of these scholars, even if one is tempted on occasion to parody it. But on the other hand, the reigning trifecta of “race, class, gender” which has consumed the energies of so many strong scholars has crowded out the older civic narratives that in my view continue to have merit.

    Mr. Market responds to the field as it is, not as it should be. So there are lots of supporting materials for scholars who are in the mainstream of historical practice, but the older supporting readers–books like Thomas Adolpheus Mason’s FREE GOVERNMENT IN THE MAKING–have not been sustained. Liberty Fund has to some degree stepped up, but ultimately I found it necessary to produce my own supporting materials (working with two other scholars who perceived a similar need)–Hackett press published them some years ago, if you have any interest.

    I am fortunate to teach at a university that values civic education, and does more than just talk the talk. I have received ample institutional support and validation for the civic courses I have developed and taught.

    • gabe says

      I see your point(s).

      I have come across Liberty fund before but never followed up. will do so as well as Hackett Press.
      BTW: Have you seen Nomocracy in Politics blog. I don’t agree with them – but it is interesting perspective for a bunch of positivists!

    • John Ashman says

      Kevin, as an aside, the original meaning of the word “victim” is someone who is sacrificed to appease a god. Interesting how that has mutated in under 200 years to mean pretty much everyone except white males.

      • gabe says

        This is what i meant by having a legislature (or at least a state level party) put the “kibosh” on a runaway US Senator.
        I have come to conclude that the most destructive of all amendments to the US Constitution is the 17th. Yikes!!!!!
        Now if only other state parties or legislatures would do the same, we may regain some State power.


        take care and keep the dog off the lawn!

      • Kevin R. Hardwick says


        In the usage of historians, white males emphatically are included in the category. See, eg., E.P. Thompson, THE MAKING OF THE ENGLISH WORKING CLASS. (I can find many more similar citations if you like.) in the “race, gender, class” trifecta, white males usually are analyzed as victims under the category of “class.”

        As I noted, in some instances this focus on victims is salutary–for example, consider the story from roughly the late 17th century through the early 20th of the broadening of a society premised on the participation of rational adult male consent (Locke) to include rational adult female consent too. I don’t see how you tell that story in any way save as a vindication of Anglo-American liberalism (of the sort we now call “classical”).

        Beyond a certain point, however, there are diminishing returns to the ongoing scholarly project of finding stories about the emancipation of new groups of victims.

        Nonetheless, I would hope that (American, but not European) conservatives and libertarians take inspiration from the telling of these kinds of stories, even if to do so we have to read them in a fashion different from that intended (perhaps) by the scholars who write them.

        Part of what it means to be heir to the Anglo-American liberal tradition is to be suspicious of power. And part of what that means then is to acknowledge and raise to public consciousness those instances in which power abused creates victims. Too often, however, those telling the stories want to evoke sympathy for the victims and disapproval of the villains abusing power, and think that having done that, their job is concluded. So my criticism, such as it is, of this broad scholarly trend is that it is too often incomplete. The fact that power corrupts is, in the end, just not all that surprising. Much more interesting is to ask what has to be true to concentrate power in the first place, of the unconstrained sort that can and will be abused.


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