A Few Final Thoughts on Constitutional Federalism

Dr. Niskanen’s most recent posting points to data from the Senate in 1913 and presents this as the good old days. Let me repeat a point I made earlier: By 1913, quite a few—most, I think—U.S. Senators were in fact directly elected, de facto, by dint of various state systems allowing state voters to circumvent state legislatures. And unless a new Amendment were to prohibit devices akin to the pre-1913 “Oregon plan,” the new Amendment would be unlikely to have much effect. Most state constitutions, I suspect, would quickly be revised to allow voters to express their preferences for U.S. Senators in formally “nonbinding” beauty-contest elections and state legislators would find it difficult to go against the expressed will of the electorate.

Judge Kozinski invokes The Federalist Number 10. Although this essay is canonical today, it was largely disregarded in the great continental debate over the Constitution in 1787-1788. Far more significant were the earlier Federalist essays–especially The Federalist Numbers 4-6 and The Federalist Number 8. These papers developed a national-security and geostrategic argument for union based on the need to eliminate internal land borders and rely on the Atlantic Ocean for national defense purposes.

According to this theory, island nations like Britain were far more free than nations with land borders because island nations could rely on navies more than armies, and navies were less threatening to liberty. Hence the states needed to form a “more perfect union” amongst themselves akin to the perfect union formed between England and Scotland in 1707—or so argued the early Federalist Papers. I mention all this because it suggests that American liberty over the last two centuries has been protected not just by parchment barriers in the constitution, legislative bicameralism, separation of powers, and federalism, but also by our oceans, which have shielded Americans from a variety of Old World tyrants, and by our lack of a large standing army on American soil in peacetime. This entire system of liberty-protection depended on the impermissiblity of one state—or one region—having the unilateral right to secede. So on that question, I stand with Mr. Lincoln and, it seems, against Dr. Niskanen. But the challenge for the 21st century—in a world of global warming, worldwide pandemics, supersonic air travel, a global internet, international terrorism, and so on— is for Americans to come up with new constitutional doctrines of liberty-protection that do not rely so much on our oceanic isolation.

For readers seeking more background on the geostrategic argument for union and on the distinction between armies and navies in The Federalist Papers and in the Constitution, see Chapter One of my recent book, America’s Constitution. (Yes, Judge—another plug. But isn’t that what authors should be doing in a free market?)

Also from this issue

Lead Essay

  • Nobel laureate James M. Buchanan argues that the Constitution should include amendments requiring a balanced budget, forbidding discrimination in outlays, and guaranteeing the natural liberty to exchange within and across our borders. “The ‘regulatory state’ has not worked,” Buchanan writes. “Abandonment of its constitutional legitimacy offers a starting point for constructive dialogue.”

Response Essays

  • Yale Law School professor Akhil Reed Amar says Buchanan’s essay offers a “veritable feast” for thought, but he turns up his nose at the menu, arguing that Buchanan’s amendments are either insufficiently supported by theory and evidence, likely to lead to distasteful consequences, or so indefinite in formulation that it is hard to say whether or not they could be made feasible.

  • Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit maintains that an America that would ratify Buchanan’s proposed amendments would be an America that didn’t need them. They may not be the best ideas even if feasible, he argues. Under the nondiscrimination amendment, Kozinski predicts, “we’d have Bush v. Gore going on 365 days a year, all over the country.”

  • Cato Institute chairman William A. Niskanen agrees with Buchanan about ends, but disagrees about means. Niskanen offers fixes for Buchanan’s amendments and sets forth three tantalizing alternative amendments: have state legislatures — once again — elect U.S. Senators, allow the states to nullify federal law, and allow states to secede.