Wednesday, September 13, 2023

More on the Senate and Federalism--50 Shades of Federalism



Finally, let me briefly explain why I believe a veto power for the people in the States, as the Senate provides, even if it does not protect “states’ rights” and the interests of state legislatures, nevertheless serves the best kind of federalism—federalism that protects liberty and provides what I call sanctuary for dissenters.

I think the key to understanding the good of the Senate, as well as of federalism and the Tenth Amendment more generally, is to recognize that these principles are designed, not to protect “states rights” in some abstract way, but rather to benefit “we the people” in the states.
Federalism protects my liberty and your liberty by limiting the control of the Federal Government over our lives, our liberties, and our fortunes. If Obamacare had been stopped by a vote in the Senate, as it almost was when Sen. Scott Brown was elected in Massachusetts, we the governed would have been free of the taxes and regulations and burdens of this massive and intrusive federal program.

Proponents of robust federalism recognize that constitutional limits on the power of Congress, including in no small way the equal representation rule for the Senate, free citizens in the states from burdens imposed by a large and remote system of government. These limits on national power also recognize and respect the regional and cultural differences and disagreements among us concerning the nature of the good life and what role government should play in helping us achieve the good life.

Federalism allows the states to serve as laboratories of social arrangements and values.  But it also allows the states to serve as sanctuaries for those who prefer to live in a state with a different understanding of the good life.

This sanctuary function of federalism works particularly well in modern America, because our Nation is divided between Red States and Blue States (and Purple States in between) and we have very different notions of what constitutes the good life.  Is the good life defined by high taxes and a culture of entitlement? Or by low taxes and a culture of individual responsibility?  Is traditional marriage the foundation of the good life? Or is marriage equality for same-sex couples a necessary part of the good?  Does the good life require strict separation between church and state? Or is religion a critically important part of our history and public culture? 

Federalism in America, properly understood, limits the power of the National Government, as Madison put it so clearly in Federalist No. 45, to a “few and defined” areas “exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” Whereas, continues Madison, the “powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

What this means is that federalism recognizes that Americans do not all think alike, and thus each American is given the right to become a citizen of any one of the 50 states. We each get to choose among 50 different shopping carts filled with different governmental packages, different arrangements of taxes, regulations, benefits and liberties. Some may prefer California's shopping cart over Wyoming's. Some may prefer Wyoming's over California's. This is the beauty of "50 Shades of Federalism."

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