Why Federalism Advances Fusionism

I am strong advocate of liberty in society.  Nevertheless, I don’t think of myself as a libertarian. First, many libertarians tend to engage in more reasoning from first principles and less reasoning from experience than I think wise.  While in general individual freedom in a great social good, it is hard to define a priori the exact boundaries for freedom of  a given society.

Moreover, while people do have rights, they also exist at a particular historical time and are to a degree constituted by social traditions. It is not, of course, that all these traditions are excellent and should be retained, but their too rapid elimination on the basis of abstract principles can disorient citizens as well as invite backlash against freedom.

As a result, I have been more attracted over time to “fusionism,” a combination of classical liberalism and traditional conservatism popularized in the modern era by Frank Meyer, which I see as giving a priority to liberty but offering respect for tradition. And tradition and liberty can be complementary as well as in dialectical tension.  Under political structures conducive to liberty tradition offers some rough empirical guidance on the appropriate contours of freedom and constraints on imprudent changes during periods of political passion.  And it provides a bulwark against destabilizing social change.

And nothing better expresses the essence of fusionism than sound federalism.  Federalism ideally permits more local units of government substantial leeway to regulate and thus to define the contours of freedom. As Nelson Lund puts it, states can themselves choose to draw the line between liberty and license—a line that changes somewhat depending on the circumstances of the time. On the other hand, federalism permits citizens to exit from the states, if the line drawn turns out to be oppressive. And federalism also slows down social change, as some states will be in the vanguard and others lag. Sometimes, the vanguard will prove too adventurous and others will never follow: sober second thoughts are encouraged.

Here I am talking about ideal federalism, not necessarily the structure of federalism under the Constitution as originally created, even with amendments, or certainly not as remade under Supreme Court doctrine. The hard question for ideal federalism is what are the federal guarantees needed to make the system optimal. Certainly, these include the freedom of exit, which, of course, includes right of self-ownership. Free speech is also important so that citizens in one state can hear of conditions in others.  States cannot be allowed to discriminate against citizens from other states, if exit is to be facilitated. Probably basic rights of due process need to be protected at the federal level as well. Otherwise arbitrary action by states make the effects of their laws less transparent and much more difficult for citizens to evaluate in their decisions of where and when to exit. And given the peculiar history of the United States, racial and ethnic discrimination should be prohibited.

Beyond that relatively modest list, federal restrictions on what states can are not obviously conducive to sound federalism. The right of exit allied to these other rights is sufficient to allow liberty to put tradition to the test.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

Recent Popular Posts

Related Posts

Comments

  1. gabe says

    Well maybe if we had a little more Barron v Baltimore rather than Bushrod Washington’s Corfield v Coryell, we might have a chance at ‘federalism.”

  2. nobody.really says

    What makes Federalism desirable?

    And do the policies that make federalism desirable also make municipal home rule desirable?

    • gabe says

      nobody:

      Is it the “policies” or the “principles” that make it either desirable or undesirable.

      Policies may, to a large extent, be separable from the structure?

      But it is a fair question especially in an age of *electronic* acculturation (indoctrination, perhaps, to some).

  3. Mark Pulliam says

    Often overlooked: “First, many libertarians tend to engage in more reasoning from first principles and less reasoning from experience than I think wise. While in general individual freedom in a great social good, it is hard to define a priori the exact boundaries for freedom of a given society. “

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>