Posts Tagged ‘Federalism’

I recently read Daniel Treisman’s brilliant book, The Architecture of Government: Rethinking Political Decentralization. This book is particularly important for classical liberals who defend decentralization as an important institutional reform for promoting and protecting individual freedom. Treisman’s thesis is essentially that decentralization is overrated. He doesn’t argue that decentralization generally has bad consequences, even under readily identifiable circumstances, but that the consequences of decentralization are so unpredictable and case-specific that few generalizations, even highly conditional ones, can be made about them. The book is largely architecture of governmenttheoretical, and Treisman takes on standard justifications of decentralization like Tiebout sorting, the role of mobile capital in keeping government small, and keeping government “close to the people.” While Treisman’s counterarguments to decentralization’s defenders are well thought out and in many cases persuasive, I remain more optimistic about our ability to make valid generalizations about decentralization. Still, any defender of “competitive federalism” or more local governance will need to grapple with Treisman’s challenges. I’ll take some of the most important of these challenges in turn.

One common argument for decentralization comes from Charles Tiebout: competition among local governments providing public goods allows residents to reveal their true preferences for these goods and incentivizes local governments to act on those preferences. Treisman argues that key assumptions of the model are so thoroughly violated in reality that the predictions of the model are not likely to hold true in the real world.

First, he argues that if “public service differentials are capitalized into property prices, then pressure on governments may disappear completely” (79). Residents then won’t leave districts that provide poor public services, and local officials will not be disciplined. (more…)

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Is federalism for progressives? Libertarians, who are generally enthusiastic about the competitive federalism model, have tried to argue that the model provides, at the very least, a kind of modus vivendi for all ideological camps, allowing citizens in each state to have roughly the kind of government that they want. Relative to a single national standard on every policy issue, everyone is better off, right? Some progressives have agreed, to a point.

The problem is that status quo U.S. federalism is a long way from the competitive federalism model that scholars like Michael Greve favor. (I have contended that competitive federalism is still alive in the U.S. to a much greater extent than just about any other country excluding Switzerland and Canada.) The federal government establishes a firm national baseline on both economic and social policies. First, the U.S. Congress has authorized federal matching grants that incentivize state and local governments to spend their own taxpayers’ money on federal priorities. Even conservative politicians often have political trouble turning down “free” (better: “highly discounted”) federal money. Second, the U.S. Congress has authorized extensive federal regulations intruding into areas previously considered state prerogatives: securities and exchange regulation in the 1930’s (a provincial-only responsibility in Canada), occupational safety and health regulation in the 1970’s, mortgage originator licensing in the 2000’s, and health insurance regulation in the 2010’s, to name just a few examples. Third, the federal judiciary has established a firm baseline on civil rights, civil liberties, and “social” policies, repeatedly striking down laws regulating or criminalizing abortion, sodomy, contraception, and free speech, and, more recently, laws prohibiting gun possession and carrying, enacting public election financing, and authorizing certain regulatory takings. While some of these examples suggest that progressives might have reasons to favor a looser “baseline” from the federal judiciary, the overall historical trend has been for the judiciary to constrain conservative policies. (Note that libertarians typically favor judicial engagement on all or almost all of these questions, distinguishing their kind of limited-government federalism from the old “states’ rights” variety.)

Is there evidence that U.S. federalism as it already exists is tilted toward progressive priorities? I believe I have found such evidence in the distribution of state policy priorities.

Using the Ruger-Sorens database of state policies, which covers the years 2000-2010 (year-end), (more…)

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1.  I’m not a big fan of CNN but it occasionally produces an interesting piece.  This one on a surrogate who rescued a baby with birth defects from the natural parents (or so she thought!) who wanted the baby aborted is a must-read and raises a lot of interesting questions about law and ethics.  It also highlights how states are still relevant actors in our lives despite the encroachments of the federal government (and see #3 below).

2.  One of the great benefits of government spending cuts (including the sequester) is that politicians and bureaucrats have to think more seriously about trade-offs.  Of course, the sequester cuts are absolutely tiny – as Nick Gillespie at Reason nicely points out - and thus don’t pinch those folks enough.  But this piece at the USNI site notes one potential benefit – the Navy may have to reduce its efforts in support of the drug war.  Of course, the article makes it sound like the possible shift is a bad one but this is yet another war the US won’t be winning.

3.  As citizens and visitors to the Tar Heel State know too well, North Carolina has a state liquor monopoly.  In this white paper, lawyer Jeannette Doran of the NCICL “addresses whether North Carolina’s monopoly system violates the State Constitutional provision which declares and mandates: ‘monopolies are contrary to the genius of a free state and shall not be allowed.'”  Here is a nice quotation from the conclusion of this short paper:

It is dangerous to permit the State to engage in monopolistic activity. To tolerate a government-sanctioned monopoly by any entity, including the State itself, is “contrary to the genius of a free state”, according to the common sense of our Constitution. If the State is given wide discretion to monopolize spirituous liquor sales on the justification that it is doing so to protect public health and safety, there is little constitutional barrier to the monopolization of other products and services.

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In Canada, provincial parties are totally organizationally independent of federal parties and may not even have the same names. Thus, the British Columbia Liberal Party has generally been right-of-center, and British Columbia Liberals tend to vote Conservative at the federal level. Quebec Liberals have generally been more Quebec-nationalist/decentralist than the federal Liberals. Most provinces have parties named “Progressive Conservative,” even though there is no longer any federal Progressive Conservative Party. And so on.

Of course, it doesn’t work that way in the U.S. State (and even local) elections feature Republican and Democratic candidates, except in Nebraska, where state legislative elections are nonpartisan. As a result, state election results are driven by national trends. Surprisingly, political scientists had not formalized this insight until recently. Here is a paper from Steven Rogers:

State legislative elections are not referendums on state legislators’ own performance but are instead dominated by national politics. Presidential evaluations and the national economy matter much more for state legislators’ elections than state-level economic conditions,  state policy outcomes, or voters’ assessments of the legislature. Previous analyses of  state legislative elections fail to consider which party controls the state legislature and whether voters know this information. When accounting for these factors, I discover that even when the legislature performs well, misinformed voters mistakenly reward the minority party. Thus, while state legislatures wield considerable policy-making power, elections are ineffective in holding state legislative parties accountable for their own performance and lawmaking.

Tyler Cowen calls this “the problem with federalism.” But it isn’t a problem with federalism as such. It’s a problem with U.S. federalism. In Canada, you can’t send a message to the federal government by voting against the incumbent federal party at the provincial level. (In fact, provincial elections are not held on the same days as federal elections.) Changing the perverse accountability dynamic of U.S. state legislatures may require something as simple as changing the names of state parties.

State parties may even have an incentive to do this. For instance, the Republican Party in New Hampshire could change its name to something like “New Hampshire Conservative Party” or “New Hampshire Party.” By doing so, it could help to insulate itself from the partisan swings at the national level that are beyond its control.

In the last election, New Hampshire Republicans lost majorities in the state house and the executive council. The reason for this was the (more…)

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Harvard economist Ed Glaeser weighs in on federal mandates in general:

Although I am open to having state governments require more health coverage, I fear a federal government with too much power to control individual behavior. The track record of federal interventions in managing markets suggests a strong case for limiting that power.

The question of bestowing appropriate power on the federal government depends not on the health-care issue alone, but on whether you think — on the whole — that the U.S. government does good things when it heavily regulates behavior. The 1942 case that is often cited as a precedent for health care, Wickard v. Filburn, provides the perfect example of why I fear this control….

There are many reasons to leave control over markets, such as health care, to state governments. States have tougher budget constraints, which discipline spending. States can adapt to local tastes, so Massachusetts can have more intervention than Texas. If people don’t like a state’s rules, they can always move elsewhere. Local experiments provide the evidence that can lead to real progress.

I’m not against all health-care mandates, but the history of federal overreach is worrisome, and I’d be happier if the Supreme Court decides that the law limits this ability to manage markets.

I don’t agree with everything in the article, and it’s unclear whether he favors a federal “tax penalty” on the uninsured to replace the “mandate,” or whether this is also something he prefers state governments do, but it’s refreshing to see a clear and sensible articulation for a more thoroughly federalist construction of the Constitution.

(For my part, tomorrow’s decision is ho-hum unless the whole bill is struck down. Community rating, guaranteed issue, rate review (price controls), Medicaid expansion, and the associated tax increases are all a bigger deal for the economy than the individual mandate.)

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Constitutional debates swirling around the PPACA’s individual mandate have much to do with federalism. The core issue the Supreme Court is addressing is whether the federal government has essentially unlimited authority in economic policy, or whether they are yet some areas of economic policy-making (such as whether to compel commerce) exclusive to the states. As someone who believes that constitutions ought to be read according to – I don’t know – what their actual words say, I think the entire act is obviously unconstitutional. Article I, section 8 of the U.S. Constitution permits Congress to legislate in order to “regulate commerce…among the several states.” Thus, Congress has the authority to regulate interstate commerce. Not “anything that might be related somehow to interstate commerce,” plus “anything necessary and proper to any of those things.” Of course, no one on the Supreme Court, except perhaps Clarence Thomas on issues like this one, shares my judicial philosophy.

Putting the constitutional issues to one side, however, I want to address the desirability of the kind of federal system that classical liberals — and, perhaps, Justice Thomas — favor. We can summarize that federal system as follows:

  1. The primary regulatory authorities in the country are state and local governments.
  2. The economic role of the federal government is to ensure a common market: to prevent states from levying barriers to the free flow of goods, services, people, and capital, from tariffs to invidious regulations to local preferences in government procurement.
  3. The national court system protects basic human rights and civil liberties from infringement by federal, state, and local governments.
  4. State and local governments fund their activities almost exclusively out of their own resources. The federal government should not, in general, provide grants to state and local governments.
  5. State governments are politically autonomous, constitutionally sovereign, and independently elected. They may legislate freely within the bounds expressed above.
  6. State governments are permitted to form compacts to deal with externalities. For instance, states may choose to adopt uniform regulations on insurance so that companies can sell the same product in multiple states with a quicker approval process. Because states retain their sovereignty, they are free to enter and withdraw from such compacts at any time.

OK – so what are the arguments against this kind of system? (I go over some of the arguments and evidence in favor here.) One common objection to “states’ rights” is that state governments may violate the civil rights of some of their citizens. I share this concern, one reason I don’t think the term “states’ rights” is appropriate for my position; nevertheless, the concern is addressed with point 3 above. Another objection might be that problems like pollution and endangered species can cross state boundaries. Given a sufficiently small number of states, however, I do not see why they cannot contract with each other to solve their commons problems. What else?

There are two concerns about fiscal federalism that many progressives share that I take seriously: that inter-jurisdictional competition under federalism will undermine the welfare state, and that the system will lead to greater inequality among regions. The first concern (more…)

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Vermont has passed a law authorizing a single-payer, government-run health insurance system. Apparently the plan fails to grasp the fiscal nettle and thus may never come to fruition. Nevertheless, I hope they go forward with it. I don’t think it will work – to the contrary, the experiment should serve as an object lesson to the rest of the country. But we are only going to get a ceasefire on health insurance at the federal level if PPACA can be repealed and the left comes to realize that they can try out their cockamamie schemes at the state level, so why not let those crazy libertarians do the same?

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A rumble can be heard emanating from assemblies and governor’s mansions across these fruited plains. It is a sound reminiscent of by-gone days that echo down through centuries of constitutional thought. Prompted by everything from unfunded Congressional mandates to the new omnibus healthcare bill, (See here and here) these reverberations strike cords of distant legal memory that are, for most of us, only imperfectly recalled.

For many, talk of state’s rights, interposition, and even nullification brings forth unsavory recollections of illiberal and tyrannical state and local institutions of chattel slavery, Jim Crow and the color bar. That association is understandable given the prevailing interpretation presented in classrooms, but very unfortunate if we stop there.

One of the most essential roles of states in any federal system is to act as counterweights to centralization. For this reason all power is not assigned to the national authority. In the original constitutional design of the American federation, what was not given was reserved to the states or to the people thereof, and it is from this perspective that the check to central power, the bite of Federalism, was to be derived in its most essential forms.

The idea of states as checks to national concentration pushes the bounds of constitutionalism, but it was understood that however approached, and by whatever means undertaken, this role was not to be pursued for light or transient reasons.

The idea of interposition took many forms. It could embrace official expressions of disapproval by the legislature or governor of a state. It might entail simple, non-cooperation with federal authorities, such as a refusal to enforce a federal law, or acknowledge a mandate. Or, it might take the form of an unofficial understanding on the part of local groups and institutions, usually operating under the tacit approval of the state, not to comply with federal measures.  In its most extreme form, interposition could assert the right to interdict the enforcement of an offending provision through an act of outright nullification. How far a state might go in pursuit of this last line of interposing itself is a question of some delicacy.

Preventing by official policy or action the enforcement of a federal measure stresses the limits of constitutionality. If either of the contending powers moves from peaceful toleration or acquiescence to violence, the episode takes us from the realm of the legal to the revolutionary. For this reason, nullification has always been the most dangerous and the most controversial form of interposition.

The basis for the authority of all these options, however, remains rooted in the constitutional ideal itself. It was not the product of a mean or unnecessary political expediency. On the contrary, the idea of interposition was an attempt to sort out a vital constitutional principle and was first articulated, not to defend slavery, but to support free speech, free trade, peace and the liberty of fugitive slaves.

Federalism in all its various forms can be an instrument for good as well as ill. Like any political order, its quality is determined by the people who compose it. To really understand why the states are again making noises of interposition, we need to understand something of the history of our federal structure of government. The reason new life is breathed into old thoughts has everything to do with what rests at the center of our political existence.

Why do we have states? Lincoln made the claim that the Union preceded the states. What he could not say, however, was that the federal government as constituted in 1787 preceded them, because clearly it had not. The main thrust of Lincoln’s reasoning was that the Revolution and the move for independence began as a united effort. The implications of that claim are still debated and one need only recall the exchanges between Mel Bradford and Harry Jaffa on this point. What is certain, however, is that the federal government did not create the states. What then is the role of states in our federal order?

The authors and advocates of the Constitution, whatever they may have thought privately, were not free to assert any desired construction, but had to contend for the support of the peoples of their various former colonies. They needed to address directly the concerns of liberty that had animated the move to independence, and more specifically they had to allay the fears raised by their critics, the Antifederalists. In this way, whatever hidden motives might have existed, it is the stated intentions of the Federalist advocates that must bear legal weight.

Among the primary objects of the Revolution was to secure the liberty of the colonies to determine the disposition of their own properties, free from arbitrary imperial commands. American anxieties of the late eighteenth century grew in direct proportion to the growth of imperial designs by King and Parliament.

The Antifederalists are often called the old revolutionaries as much for their actual age as for their adherence to older ideas about colonial liberties. The list of such advocates is long and venerable: Brutus, Federal Farmer, Cato and Centinel. My favorite, however, is one not so generally recognized, but to my mind, gave the reasons for decentralization and the existence of states most succinctly and eloquently: Maryland Farmer. He took a long range perspective based on some very ancient precedents.

Edward Gibbon’s first volume of The Decline and Fall of the Roman Empire came out in 1776, and like other important works of its time, Americans were eager to read it. By the time of the Constitution, Maryland Farmer had imbibed its central lessons and recognized how closely its themes complimented American experience. He disputed the charge often heard that the states, if not united under one supreme head, would soon be at each others throats. No, he said, citing Gibbon, real terror is to be found where there is no hope of escape, no exit.

Anticipating the role of competing jurisdictions, Maryland Farmer cautioned against rejecting the Articles of Confederation, observing that “In small independent States contiguous to each other, the people run away and leave despotism to wreak its vengeance on itself; and thus it is that moderation becomes with them the law of self preservation.”

The referenced passages of Gibbon illustrated that understanding nicely. Noting the ease with which a person onerous to power could escape in the Europe of his day to the safety of a rival state, Gibbon pointed to the very different reality of the ancient empire: Rome, he observed, came to fill the world, “and when that empire fell into the hands of a single person, the world became a safe and dreary prison for his enemies.”

Maryland Farmer took that point to heart and asked Americans, who had just fought a war to resist the imperial designs of England, was it all simply to consolidate power in your own hands? He hoped not.

So strong were these sentiments in favor of decentralization, Federalists had no choice but to address them. Some of the most eloquent passages of the Federalist Papers were set out with the explicit aim of refuting the consolidationist claims of the nature of the Constitution. Indeed, more than one of those pieces by Publius was penned by that arch purveyor of centralized authority himself, Alexander Hamilton. In the next part we will examine how Publius attempted to negotiate the question of a federal check to national power, and look at the roots of interposition as they were presented by the supporters of the Constitution.

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The latest Economist has an interesting feature on inequalities among regions within countries. The article compares countries on their ranges in GDP per head (the ratio of richest region to poorest). Thus, we get charts like the following:

But range is an extremely crude concept for measuring inequality. In the U.S., the District of Columbia is by far the “richest” “state,” because its large number of commuter workers generate large GDP without figuring into the denominator. Moreover, the use of the range to illustrate dynamics over time is misleading:

This chart makes it appear that the U.S. has rapidly growing regional inequalities. But the increase here is being driven by D.C. again. The growth of the federal government has concentrated ever more GDP in the District, causing its numbers to look increasingly out of whack with the rest of the country.

A better approach is to compare rates of regional GDP per head convergence. Convergence is the phenomenon whereby poorer economies tend to “catch up” to richer ones. A rough-and-ready benchmark for “good” convergence is an annual rate of about 2%. Econometricians derive rates of convergence in GDP per capita by regressing annualized GDP per capita growth on initial GDP per capita for a dataset of economies. I have calculated regional convergence rates for Canada (provinces and territories), the U.S. (states and D.C.), and the European Union (member states before 2006) over various periods. Here are the results:

The “equalization” column indicates whether the federal system has extensive equalization payments that give grants to poorer regions. The EU does have a nominal equalization program, but it does not redistribute much money. Of these systems, only Canada has a truly extensive equalization program.

Despite this, Canada’s convergence record is the worst of these systems, although the differences between the U.S. and Canada are small. Over the entire 1981-2005 period, U.S. states converged at 1.9% per year, while Canadian provinces did so at 1.6% per year. The EU clearly has the best convergence record, with a massive 8.0% annual convergence rate during the 1995-2005 period, which saw the rapid rise of Ireland, Greece, Spain, and Portugal, relative to the rest of the EU. (Eastern European countries are not included in these numbers, because they had not joined the EU yet.)

This evidence suggests that decentralized federal systems do a pretty good job of getting rid of regional inequalities, even without equalization programs. In a paper currently under “revise-and-resubmit” at an economic geography journal, I present much more formal and systematic evidence to this effect. If and when it is published, I will revisit the topic.

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Senator Ron Wyden (D-Ore.) had an interesting bipartisan health care bill with the now-ousted Bob Bennett of Utah that, unfortunately, never got anywhere. But apparently he sneaked into the bill that did pass a provision that will allow states to set up their own universal insurance systems. While conservative states are backing a legal challenge to Obamacare, Wyden proposes that Oregon go through the bill’s provisions to establish its own, more flexible program:

Oregonians have demonstrated again and again that a one size fits all approach from Washington is not the best approach for the Northwest, and they have come up with innovative solutions that the Federal government has never had the flexibility or will to implement. For these reasons, I wrote Section 1332 specifically with Oregon in mind.

Section 1332 is scheduled to go into effect in 2017. I intend to introduce legislation shortly to accelerate that date to 2014. Moreover, if the bipartisan legislative leadership and the executive branch were in support, I would like to explore the possibility of Oregon moving forward with a Federal waiver even earlier.

How refreshing to see a Democrat speaking in federalist, localist terms. Of course, it is an election year, and the details of what Wyden is proposing for Oregon are yet to be seen.

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So what do we think about the district court ruling overturning California’s same-sex marriage ban? To my knowledge, this is the first time a court has asserted a federal constitutional right to marriage.

As a longtime supporter of getting government out of marriage licensing and of legal equality for same-sex and nonmonogamous relationships, I am nevertheless somewhat ambivalent about the decision, because a nationwide ban on same-sex marriage bans would undercut the meta-ideological argument for decentralization of policy-making on controversial moral issues: majorities in different jurisdictions could have their own policies, leaving more people content with the regime under which they live than they would be with a single nationwide rule. For the same reason, I would be ambivalent about a federal court overturning all state and local gun laws. Some human rights are so basic that there should be a minimum federal standard, but when it comes to same-sex relationships, civil unions afford exactly the same rights without the terminology.


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It is probably fairly obvious to our readers that many (all?) of us here at Pileus support a more robust form of federalism (and decentralization) than we currently enjoy in the U.S.  So it is with much chagrin that I relay news from this weekend that President Obama wants more federal dollars to bail out irreponsible supposedly needy states.  I know, you are shocked, shocked to see the administration argue for more spending. 

Fortunately, Veronique de Rugy of the Mercatus Center is on the watch and makes a case here for why this is a bad idea.

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In the 2005 case Gonzales v Raich, the Supreme Court pulled back on its federalism jurisprudence and ruled that the federal government may prosecute someone for growing marijuana at home for personal use under the authority of the Commerce Clause of the U.S. Constitution, which grants Congress the right to regulate commerce among the several states. This year, Congress passed a bill essentially federalizing Massachusetts’ health insurance regulations, mandating pure community rating, guaranteed issue, and individual purchase of health insurance, fairly extreme left-wing policies previously unknown to much of the country.

Oddly, these blows to the remnants of American fiscal federalism are coming just as scholars have recognized the virtues of the system. In the 1990s, Barry Weingast’s market-preserving federalism research agenda showed how mobility of people, goods, and capital across borders of a fiscal federation defined by decentralized policy-setting under hard budget constraints could restrain the growth of government and promote economic development. In the 2000s, scholars such as Jonathan Rodden, Erik Wibbels, and Sebastian Saiegh have investigated the economic consequences of federal institutions. What they found was that when subnational governments are responsible for “paying their own way” with own-source revenues, debt is lower and government is smaller. The reason why fiscal federalism constrains Leviathan is that it allows taxpayers to seek low-tax jurisdictions, which in turn encourages these jurisdictions to compete with each other.

Among the true fiscal federations in the developed world – Canada, Switzerland, and the U.S. (that’s it!) – the U.S. is the most centralized. The chart below shows tax decentralization (subnational own-source revenues divided by total government revenues) in 1999, the latest year for which data are available, for a number of OECD countries.

Tax Decentralization, 1999In Switzerland and Canada, over half of all government revenues are raised by provincial/cantonal and local governments through taxes over which they control either the rate or the base. In the U.S., that figure has generally been around 35-40%. Sweden and Japan actually score higher on tax decentralization than the U.S., although subnational units in those countries don’t enjoy nearly the policy and political autonomy that American states do.

Will Americans eventually realize that fiscal federalism actually works and reverse the decades-long trend toward greater centralization? For that to happen, voters and federal politicians would have to realize that the things they want to have done, from gun control to health care policy, are best handled at the state and local level. They would have to take a stand on principle to reject one-size-fits-all federal solutions. Either that, or the Court is going to have to acquire the nerve and intellectual honesty to realize that it’s their job to safeguard important institutions from marauding politicians, regardless of what their personal views might be on the issue before them.


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Libertarians tend to like political decentralization and the principle of subsidiarity (” do everything at the lowest feasible level”). The standard reasoning is that decentralization provides a check on government, especially when combined with mobility across jurisdictions. Thus, if one jurisdiction becomes too overbearing, people can flee to a more welcoming environment, and this possibility will actually prevent governments from running roughshod over their citizens’ liberties, for fear of losing their tax base. Dressed up in the language of rational-choice institutionalism, this is all Barry Weingast’s “market-preserving federalism” model really is.

I would like to posit that, under certain conditions, decentralization can in and of itself represent an increase in freedom, even if government does not shrink as a consequence (even if it grows!).

The argument

Why do radical libertarians think that taxation is theft? Presumably because taxation takes away citizens’ justly acquired property without their consent. But what if they did consent, e.g., through a social contract? Then taxation would be fine, so long as it is levied pursuant to the terms of the contract. But – “I didn’t sign no stinkin’ social contract!” Fair enough, neither have most people – and, eliding a long stream of philosophical argument, it ultimately seems clear that the arguments for empirical anarchism (“very few existing governments have a moral right to rule”) are compelling.

But could a government established illegitimately come to enjoy some legitimacy after a certain period, during which it has performed certain actions? Think about property entitlements. The long history of theft, extortion, and murder in human societies might seem to render virtually all property entitlements illegitimate. But then there are good reasons to think that the moral stain of illegitimate transfer eventually fades as the victims die out and the holdings are transferred justly to subsequent generations. Thus, property entitlements that are illegitimate in origin can eventually be “redeemed.”

In the same way, governments are generally not established by initial unanimous consent (the Mayflower Compact was an interesting historical exception). Therefore, they are morally illegitimate because they violate the rights of nonconsenters. But can governments eventually become legitimate through the establishment of consent? Clearly, no government (that I know of) has ever tried to obtain the signatures of all its citizens to a constitution after the fact. But surely, living under a government can, under some circumstances, convey consent. John Locke’s theory of tacit consent to government holds that “enjoying the dominions of a commonwealth” makes you morally subject to that government – you must obey its laws, or at least not interfere with their enforcement. This theory is inadequate when applied to national states, however, for their very size makes emigration impractical for most. It doesn’t really count as consent if you have no choice.

But what about a condominium association? Let’s suppose a CA was established improperly without all the proper signatures, but carried on governing. It was a morally illegitimate government at its founding. But if you continue to live there for a certain period of time without making a complaint, it seems fair to infer that you have consented to the arrangement. In these circumstances, tacit consent does seem to do some work. Why? Because a condominium association is so small, territorially, that it is easy to leave if you do not like it.

Now replace “condominium association” with “municipal government.” It is reasonably easy to move across municipal jurisdictions. I would venture to guess that there are many towns across the United States where, if all adults were surveyed, none of them would volunteer the belief that their municipal government is illegitimate and has no right to rule. In effect, these town governments enjoy unanimous consent to the basic contract (this does not mean, of course, that there is unanimous consent to every decision the local government makes – but all that matters for “right to rule” is unanimous consent to the basic procedures by which decisions are made).

So if radical libertarians were to go into a town like this and proclaim that resistance to local taxation is just, or that enforcement of ordinances against, say, houses of prostitution is wicked, they would be in the wrong. These policies would not necessarily be violating anyone’s rights, because everyone has consented to the town government’s right to make these decisions. (As an aside, libertarians would probably make more headway with their ideas if they openly acknowledged that local communities should have the right to zone out crack dealerships and brothels, thus cutting the legs out from under the easiest and most unfair reductios of libertarianism.)

In conclusion, decentralization, by placing political decisions in the hands of small-scale governments, can, under conditions of good mobility and respect for basic integrity of the person, inherently improve liberty. “Big government” at the local level need not be unjust, because it often enjoys the consent of the governed. Libertarians need not be complete anarchists, just radical decentralists.

UPDATE: In the comments, Mark LeBar poses a strong challenge to my view that really existing local governments enjoy a moral right to rule. In response, I concede that the right to rule is somewhat impeached by the lack of express consent, but maintain that what matters most is the contents of residents’ “choice sets,” i.e., their real ability to withhold or withdraw consent by moving. In practice, what an impeached right to rule may mean is that there are certain, very fundamental rights that citizens cannot give up except through express consent under conditions of a highly favorable choice set, while there are other rights that may reasonably be considered to be alienated simply through residence and absence of explicit dissent. Local governments would then enjoy a right to rule in the latter areas, but not the former. Levying low taxes might fit the latter category, while imprisoning private drug users might fit the former. This is admittedly a bit arbitrary & not totally satisfactory. Nevertheless, I don’t think I need the strong claim that local governments enjoy any kind of right to rule in order to make the weaker claim that limitations on freedom enacted by local governments are inherently less oppressive (if not totally non-oppressive) than the same limitations enacted by higher-level governments.

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As the New York Times reported:

Esther Duflo, a development economist at M.I.T., has been awarded the John Bates Clark Medal. The award is given to “that American economist under the age of 40 who is judged to have made the most significant contribution to economic thought and knowledge.”  Professor Duflo, 37, helped found the Abdul Latif Jameel Poverty Action Lab, whose affiliates do randomized experiments in poor countries to help determine what types of aid and anti-poverty programs actually work.

Wouldn’t it be great if we could experiment by allowing different states to engage in different policies, unmolested by the Federal Government, and then see how things work out?  These wouldn’t be randomized, but they would be consistent with the Constitution’s federalist plan.  And, of course, we sometimes do.  Unfortunately, we are often stuck with “one size fits all” plans imposed by Washington that, if they fail, fail big and fail for all of us. 

A smart argument I heard during the Obamacare debate (can’t remember where) applied this experimentation point to health care.  Wouldn’t it have been nice to see how similar health care plans fared in some places before adopting it on such a grand scale?  But maybe then we’d have seen how bad things are likely to turn out with Romneycare in Massachusetts and balked at repeating something like it at the federal level.

In the future, let’s remember that federalism has a number of advantages*, and we lose something when the Federal Government sucks more and more power and authority into Washington.

* Note: It should be noted that a due respect for federalism is different than thinking that states and localities are the saviors of our liberties.  States and localities have all too often been violators of our basic individual rights (see Jim Crow and other examples of “grassroots tyranny“).

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