A book review by John R. LaPlante
Many Republicans cheered, or at least assented, when the federal government took on more powers during the presidency of George W. Bush. (See: the Patriot Act.) Democratic Party partisans, meanwhile, have taken the same tack after their own party took control the White House. (See: ObamaCare.)
But the political stars eventually realign, and then you may not be so happy with what happens. So a better approach is to support limits on government. There are various ways to do that. One is to hope for wise and benevolent rulers who won’t overstep their boundaries. (Good luck with that!) Another is to lay out in law what government can’t do, through spending limits or a Bill of Rights. Still another is to divide the power that government has among competing institutions.
In his book, “Power Divided is Power Checked,” Jason Lewis calls for reducing the power of the federal government over the states, drawing on the concept of “competitive federalism.” In brief, it means that the federal government manages national defense and foreign affairs, while the states make the laws and rules on other topics. People vote with their feet for the approach to government that suits them best.
Lewis explains how competitive federalism started (the Federalist Papers), how it has become weakened (by presidents, congresses and the Supreme Court), and how it might be strengthened once again. Along the way he talks about how federalism (or its lack) works itself out on issues such as minimum wage laws, the Americans with Disabilities Act, environmental regulations, the definition of marriage, and gun control. The book is a mini-seminar on the history of judicial interpretation, with some trips into political history along the way.
Federalism has always been the sine qua non of limited government because it offers the only real safety valve from an overreaching government: the ability to flee.
Ironically, the federal government has weakened federalism by growing itself at the expense of the states.
Federal expansion has happened in several ways, including an open-ended reading of the “general welfare” and “interstate commerce” clauses of the U.S. Constitution. (Not surprisingly, advocates of the Patient Protection and Affordable Care Act—“ObamaCare”—often cite these clauses to support the law.)
Another example is the development of the “incorporation doctrine,” by which federal courts use the Bill of Rights and the Fourteenth Amendment to strike down state laws. The Amendment, enacted in 1868 in the aftermath of the Civil War, was meant, in Lewis’ words, “to constitutionalize the end of slavery in America.” That was the good news. The bad news: It has meant a diminished role for states, a larger role for the federal government, and increasing social conflict, as the cliché, “don’t make a federal case out of it” falls onto the dust heap of history. These days, it’s hard to think of something that can’t be the subject of a federal case.
Lewis is inspired by James M. Buchanan, a professor emeritus at George Mason University. In his essay, “Federalism and Individual Sovereignty,” Buchanan says that competitive federalism has a few benefits:
- It minimizes the risk of an oppressive central government, since much power is diffused to the states.
- It minimizes the power of state governments as well, by putting them into competition with each other.
- It’s easier for a citizen to be effective in a smaller community than a large one.
Lewis closes his book with a look at ways of limiting federal power, especially against the states. He considers and dismisses several options. He ends by proposing a constitutional amendment—to be brought to the national debate by state legislatures, naturally—that strips the federal government of most of its power and even allows for secession. Many if not most Americans will find it fanciful or dangerous, but when we consider the political health of “we the people” today, some bracing words may be what we need.