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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