Improve Federalism by Rewarding Interstate Movement

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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The Thirteenth Amendment as a Conservative Counterrevolution

  In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…

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“Clothed with immense power”

Director Steven Spielberg and screenwriter Tony Kushner’s Lincoln opens with a chaotic battle in a river, black and white soldiers struggling to kill each other in hand-to-hand combat.  We then see pairs of black and white soldiers reciting from memory the Gettysburg Address back to the President.

Lincoln concludes the movie by delivering the Second Inaugural. Most of the time in between is an elaboration of his wartime and Reconstruction strategy and thus a commentary on the purposes of the First Inaugural and the Emancipation Proclamation. These occasions are the rhetorical high points of Lincoln’s presidency, though most of the movie is focused on events in early 1865.

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