On Thursday I spoke at a panel at the Federalist Society’s National Convention entitled: Is Everyone for Federalism Now? The title is a backhanded tribute to the President. Finally, he is bringing us together, because he has caused the liberal resistance to Trump to appreciate federalism—a cornerstone of conservative thinking about constitution! But that is actually the shallower reason for the renewed interest in possible cross- ideological agreement on America’s most famous practical contribution to governance. The deeper reason is that a whole new school of law professors has embraced federalism under the new name of “national federalism.” Two of its most distinguished adherents, Heather Gerken and Abbe Gluck, were on this panel.
Count me a skeptic, however, about the prospect of any enduring alliance. To be sure, there may be tactical and opportunistic use of federalism by those who oppose the administration: that is the nature of politics particularly in Washington where for many politicians the meaning of the Constitution changes depending on whether they are in power. And there may be a few actual areas of rapprochement: it is conceivable, for instance, that some liberals may join conservatives in opposing commandeering of state officials.
But in general there will be no intellectual convergence because the right and left’s understanding of federalism—its content, origins and purposes—is very different. The right believes that federalism derives from a text of the Constitution that limits the power of the federal government, giving different responsibilities to federal and state officials. The purpose of this distribution of power is ultimately to protect individual liberty from government.
In contrast, progressives who promote federalism support a federalism that promotes activist government and exists largely at its sufferance—almost the opposite of constitutional federalism.
The total elimination of the deductibility of state and local taxes in the Senate Republican tax plan will cost me money, as I live in the high tax state of Illinois. Nevertheless, I strongly favor this proposal. It is rare that a change in tax law can reinforce the basic structure of our Constitution, but this one does.
Our Constitution is premised on government accountability and our federalism on competition among the states. Deductibility of state and local taxes undermines both. Because the deduction tempers the full force of the tax burden that states and localities impose, the accountability of state and local legislators for tax and spending becomes more attenuated. And this lack of responsibility is not ideologically neutral: state officials tax and spend more taxpayers’ money than they would if they could not slough off some of the costs on people who cannot vote them out of office.
Second, federalism is supposed to encourage competition among the states for efficient provision of public goods. But this deduction reduces the keenness of the competition.
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.
One of the glories of our constitutional structure is competitive federalism. Under the original Constitution, the states had very substantial powers of regulation. But they were disciplined in large measure because they were forced to compete in a market for governance. If a state imposed too many burdens on their citizens through either taxation or regulation or failed to provide needed public goods, citizens could leave.
For competitive federalism to work well, the federal government, however, does need to facilitate it. Most important are the constitutional rights that ease movement. Article IV of the original Constitution requires each state to extend the privileges and immunities it extends to citizens within its state to citizens of other states. Presumably that right effectively guarantees free movement in, out and, within the state for out-of-state citizens since states universally grant that right to their own citizens. The self-ownership assured by the Thirteenth Amendment eliminated a legal obstacle that African Americans faced travelling from state to state. The First Amendment assures that citizens can hear about conditions in other states and compare it to their own.
But it is not only the Constitution but federal statutes that can make a difference to the vibrancy of state competition.
A few days after Donald Trump’s inauguration on the opposite coast, Xavier Becerra was sworn in as California’s attorney general. Becerra, who had accepted Governor Brown’s offer to replace now-U.S. Senator Kamala Harris, was fresh from Capitol Hill himself, having served in the U.S. House of Representatives since 1993 and rising through the ranks of the Democratic leadership. It might be considered unusual to trade being a mover and shaker in Washington for service in a non-gubernatorial state position. But Becerra understood that being a state AG nowadays affords a prominent voice in national politics. He has since vowed to challenge President Trump at every opportunity, which apparently has already paid dividends for his political future.
I’m a little late with this but why am I always right? Back in February, I commented on the “sanctuary city” litigation: [L]awsuits filed by San Francisco and some other jurisdictions are, at best, wildly premature—“unripe,” as the lawyers say. That doesn’t necessarily mean they are stillborn. The Ninth Circuit’s recent travel ban decision strongly suggests that the ordinary rules governing preliminary injunctions, standing, statutory interpretation, and other lawyerly distractions no longer apply in these sorts of cases—perhaps because immigration is now, like climate change or gay marriage, one of those issues that “arouses the judicial libido,” to purloin a fine phrase of Justice Scalia’s. Or perhaps on…