Federalism: The Founders’ Legacy
For the first 125 years of our history (1789-1913), America was a country comprised of libertarian politics and conservative cultural values.
1) Libertarian politics is based upon the fact that man was meant to be free. Thus his government must be strictly limited by a Constitution rather than determined by the dictates of an autocrat or the passions of the majority. And his economy must be a free marketplace, i.e., laissez-faire capitalism.
2) Conservative cultural values are based upon the fact that there is an objective moral order in the universe, i.e., certain rights and wrongs in human life that are applicable to all of us for all of time. Man’s culture is to be guided by these objective moral values by instilling them into young people at an early age.
These are the two vital elements that built us into the most desired nation in history – libertarian politics and conservative cultural values. The Founding Founders believed that if political freedom is to avoid degenerating into license and anarchy, we cannot promote different opinions on morality within the same society, i.e., a “do-your-own-thing” moral philosophy.
For example, no rational person would tolerate different opinions on whether six-year olds would make good congressmen in Washington, or whether cyanide is as good a season as salt, or whether the sun and rain are necessary for a farmer's crops. Why then would he tolerate different opinions on what is right and wrong in the moral realms of life? In other words morality is not, as today's pundits insist, relative to the person and the culture. There are fundamental rights and wrongs that can be agreed upon and upheld by all members of society. To do otherwise is to create a culture of chaos and decadence, which is what is being created all around us today.
But the Founders also believed that if social order is to avoid degenerating into tyranny, we cannot allow politicians to be our moral guardians with the power to bludgeon society's sinners into obedience. This is because, as Madison so wisely observed, man's nature is not angelic, but forever flawed. Because it is such, allowing politicians to act as moral guardians of society through the coercive arm of the state is fraught with danger.
Therefore libertarians maintain that virtue must be freely chosen, not legally mandated. The linking of society's moral guardians to the coercive arm of the state during the Middle Ages created enough evil and cruelty, that we should be cured forever of such a temptation. Society's voluntary cultural institutions (churches, schools, families, unions, and associations) are far better regulators of our lives than the state and its armed police. In other words, government should not be in the business of legislating morality.
Conservatives argue that this was not the Founders' view, nor should it be anyone's view. They challenge this laissez-faire approach by pointing out that all law is the "legislation of morality" and that the two concepts cannot be divorced. When society passes a law against murder, it is "legislating morality." The same goes for stealing and all other crimes of mankind. They all entail moral issues. Therefore it is impossible to legislate period without legislating morality. The only question is whose morality is going to prevail as our guide to the laws we pass.
The libertarian answer on this issue is that though all laws are in some way involved in determining moral questions, which makes the state a legislator of morality when it prosecutes murder and stealing, the state is also legislating against the violation of rights when it prosecutes murderers and thieves. This protection of its citizens rights is a much safer guideline to use in defining the government's parameters of power. The state has to legislate morality, yes, but not all morality. There are two degrees of immoral behavior: that which involves violating someone's rights (e.g. murder), and that which does not violate anyone's rights (e.g., prostitution). The state needs to legislate against the former and leave the latter's containment to the preachers. To the libertarian, this latter is not a crime because there is no victim. To criminalize such behavior is to prosecute “victimless crimes,” i.e., no crime.
Thus even though libertarian politics and conservative values fit together to form the free and ordered society, we still have a basic clash between libertarians and conservatives over the proper role of government in the ideal society. Is government to leave men and women alone and control vice with moral suasion as libertarians wish, or is government to legislate against vice as conservatives wish?
The Founders' Solution
Is there an answer to this perplexing conflict? Yes, there is. It is the Founders’ political system of federalism, whereby the extent to which government was to legislate would be determined primarily on the state and local level. Whatever government functions could be done locally must be handled thusly. Only what couldn’t be done on the local level would be assumed by state officials. And only if the state governments couldn’t handle the governing issue, would the federal government be used.
In this way, there would be many different approaches to the preservation of a free and ordered community. If someone did not like the extent to which his government legislated to achieve freedom and order, he could always vote with his feet and seek a more "enlightened" state in another part of the country. Thus there would always be a competition among governments that would help to keep them honest.
But what libertarians often forget is that the Founders' philosophy of federalism also left the diversity of states and localities to handle, within the parameters of the Constitution, the problem of men's tendency to vice and degradation. For example, it was up to each state and locality whether they would promote laws against vice, i.e., legislate morality. If the citizens of any locality decided that the libertarian ideal of excluding government from prosecuting victimless crimes was what they wished for their community, then they could vote such a system into place. Other communities and states would be free to follow in their steps or proceed differently. In this way, there would be flexibility as to precisely how to govern the interactions of men, yet also a containment of the powers to be used because of the right of the people to vote with their feet.
The only requisite for the states was that they structured themselves as “republican governments,” i.e., limited democracies with separated powers that made protection of the individual’s rights and preservation of basic order the purposes of their being. Since men were rational creatures possessed of the capacity to learn from history, albeit not perfectly, they would then be able to develop a society in which the greatest amount of “freedom and order” would prevail.
Here then lies the solution to the libertarian / conservative clash. Under the concept of federalism, the ideal libertarian society (in which government does not prosecute “victimless crimes”) would have to move beyond theory and prove itself workable in a real life community setting. If government power was decentralized and strict federalism was restored, then libertarians would be free to influence their fellow community members to abolish all victimless crime laws in a specific community. Once such an approach is shown to be workable, it would then spread to other communities and states. Eventually society would evolve into a reasonably libertarian concept of government if such a concept showed itself to be, not just theoretically desirable in the ivory tower but also practical in the real world. This is the genius of federalism. It provides for us the vehicle to transmit theory into practice and develop as free a society as humanly possible.
What Could Have Been
How important is federalism? If it hadn't been sabotaged by Abraham Lincoln and his massive centralizing agenda, the Federal Reserve and the income tax would not have come to America in 1913. Without the Federal Reserve and its engine of inflation, Woodrow Wilson would not have possessed the monetary capacity to drag us into World War I. Without our entry into that grisly war, the nations of Europe (so dissipated in both morale and manpower by 1917) would have had to sue for peace and go home. There would have been no Versailles Treaty, and thus no fervent Nazi movement in Germany. Without Hitler, there would have been no World War II. Moreover, without a Federal Reserve in America, there would have been no inflationary 1920's boom, and therefore no devastating 1930's depression. No depression, no Roosevelt-Keynesian New Deal. What a different 20th century it would have been if we had remained true to federalism.
If we who advocate a free political order are to challenge today’s liberal / neoconservative destruction of the American experiment, then we will have to coalesce around this most important legacy of the Founders. Federalism is the only means to unite libertarians and conservatives, and a unity of these two movements is our only hope to defeat the enemies of free civilization that rule us today in such an insufferably tyrannical way.
[This article is based upon an excerpt from my book, The Golden Mean: Libertarian Politics, Conservative Values.]
Nelson Hultberg is a freelance writer in Dallas, Texas and the Director of Americans for a Free Republic www.afr.org. His articles have appeared over the past 20 years in such publications as The Dallas Morning News, American Conservative, Insight, The Freeman, Liberty, and The Social Critic, as well as on numerous Internet sites such as Capitol Hill Outsider, Conservative Action Alerts, Daily Paul, Canada Free Press, The Daily Bell, etc. He is the author of The Golden Mean: Libertarian Politics, Conservative Values.