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April 10, 2018|Federalism, Immigration, Nationalism, subsidiarity

 Subsidiarity, Federalism, and the Role of the State

by Mark Pulliam|16 Comments

“Local control” is not a panacea, and is not always consistent with constitutional design.

April 9, 2018|Enumerated Powers, Federalism, New Deal Constitutionalism, Originalism

A Limited Federal Government: Half Full or Half Empty?

by Mike Rappaport|9 Comments

The Supreme Court’s doctrine of expansive federal power is much weaker than the original meaning of limited government.

March 2, 2018|Administrative State, Class Action suits, Diversity Jurisdiction, Donald Trump, Executive Power, Federalism, Frank Buckley, The Republic of Virtue

Republican Virtue, Interrupted: A Conversation with Frank Buckley

by F.H. Buckley|Leave a Comment

Peace Monument, erected in 1877, Capitol Hill.
The real conflict in our politics centers on reforming massive levels of public corruption.

January 15, 2018|Civil War, Constitutional Law, Federalism, Orestes Brownson, Secession

“An indestructible Union composed of indestructible States?”

by Herman Belz|1 Comment

How do we know our political existence to be a fact?

January 12, 2018|Autonomy, Classical Liberalism, Constitution, Federalism, Life of Julia, Patrick Deneen, school choice, State, Welfare State

Conservatives Should Not Lump Classical Liberals with Modern Liberals

by John O. McGinnis|8 Comments

Caution Sign - Liberal America
It is modern liberalism, not classical liberalism, that blurs the distinction between the state and society, and that destroys ordered liberty.

December 12, 2017|Federalism, rights, Technological Change

Is Liberty “Natural”?

by Hans Eicholz|20 Comments

Our idea of liberty has simply become confused, even deranged.

November 17, 2017|Abbe Gluck, Federalism, Federalist Society, health care, Heather Gerken, Liberty, Same Sex Marriage, Thomas Sowell

Constitutional Federalism v. National Federalism

by John O. McGinnis|3 Comments

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.

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November 10, 2017|Accountability, competition among the states, Federalism, fiscal policy, state and local tax deductions, state cartels

How Eliminating the Deduction for State and Local Taxes Promotes Federalism

by John O. McGinnis|9 Comments

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.

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June 15, 2017|Conservatism, exit, Federalism, Frank Meyer, Libertarianism, Nelson Lund, Tradition

Why Federalism Advances Fusionism

by John O. McGinnis|4 Comments

Sarioz/Shutterstock.com

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. 

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May 17, 2017|Federalism, First Amendment, Privileges and Immunities Clause, state and local tax deductions, Thirteenth Amendment, Tyler Cowen

Improve Federalism by Rewarding Interstate Movement

by John O. McGinnis|5 Comments

Chicago, IL and Toledo, OH interstate highway sign

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.

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Book Reviews

The Ford Restoration

by Kirk Emmert

Occupying the White House in unfavorable circumstances can make a President fall back on his best friend: the U.S. Constitution.

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John C. Calhoun, Madisonian Manqué

by Thomas W. Merrill

His institutional innovations were geared toward preserving slavery.

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Podcasts

The Solid Ground of Mere Civility: A Conversation with Teresa Bejan

A discussion with Teresa M. Bejan

Teresa Bejan discusses with us how early modern debates over religious toleration are an example of how we can disagree well.

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Leading a Worthy Life in a Scattered Time: A Conversation with Leon Kass

A discussion with Leon Kass

Leon Kass discusses Leading a Worthy Life.

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Eric Voegelin Studies: A Conversation with Charles Embry

A discussion with Charles Embry

What did "Don't immanentize the eschaton!" really mean? An intro podcast on the formidable mind of Eric Voegelin.

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Republican Virtue, Interrupted: A Conversation with Frank Buckley

A discussion with F.H. Buckley

The real conflict in our politics centers on reforming massive levels of public corruption.

Read More

About

Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

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