Federalism, Freedom and Diversity Part I

Can an extensive nation keep free government, promote diversity, and avoid centralization? In 1787-1788, the Anti-Federalists didn’t think so, and the Federalists couldn’t be sure. Charles de Montesquieu (1689 – 1755) wrote in The Spirit of the Laws, “It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic, the public good is sacrificed to a thousand private views.” Only in small republics, ideally of the Greek city-state size, are private interests and abuses minimized, and the general welfare of the public is better understood and within the reach of every citizen.

Free government wasn’t found in large empires. The peoples of Russia, Spain, the Turkish domains, and France were oppressed and ruled by force, rather than through voluntary cooperation in a civil society. In these despotic regimes, Montesquieu noted that the wise ruler made allowances for varying customs and traditions. For example, it was in the interest of the Russian czar to appeal to Christian Orthodoxy in his western domains, and Islam in his eastern provinces. Only a foolish despot would risk rebellion through a uniform set of laws imposed across extensive territories with diverse peoples. The United States would be a far happier nation today if the scotus understood this maxim.

All the above was well-known by the leading men of America. If Anti-Federalists were to sink ratification, it would likely be on the shoals of the impossibility of an expansive free republic. History, observation, and their own experiences in self-government among thirteen smallish states proved their point, that any people who were to govern themselves must be more or less homogenous in interest, opinions, habits, and mores.

It should be noted that the federalism/anti-federalism argument that started in earnest just after the revolution, *was never resolved*, even today. And even in other countries.

It is one of the arguments of that time that are truly “intractable”.

But what does “solved” mean, in this case? It means that both the extremes of the argument create more trouble than they solve, and any point in the gray area between them will work, for a while, but will need to shift in one direction or the other to adjust for the problems it has created.

There really is no conclusion but continued adjustment.

In the case of federalism, the Articles of Confederation made the individual states dominant over the federal government (I cite this as an extreme), with the result that the federal government could not act without permission, even in things in which its primary purpose was to act, such as national defense. Likewise, the federal government had no means to either sufficiently fund itself, or resolve its debts, even debts from the Revolutionary War.

The flip side of this argument, anti-federalism, we are all too familiar with today, likewise is an extreme. An overreaching, all powerful federal government indifferent to the powers invested in the individual states.

One of the few exceptions to anti-federalism is an unexpected one, that still matters. The Supreme Court has found that federal courts are superior to state courts. Likewise, it has found that the US congress is superior to state legislatures.

However, it has never found that the president is superior to state governors. This is the last, most powerful barrier to anti-federalism. In practice it means that if the POTUS and a governor are in conflict, the POTUS only has the option to *force* the state to comply “through force of arms”.

Most notoriously, president Eisenhower’s forced integration of Little Rock high school, over the objections of the then Arkansas governor Orval Faubus (N.B.: Bill Clinton’s mentor). The governor called out the national guard to prevent integration, so Eisenhower called out the 101st Airborne division to enforce it.

More recently, after hurricane Katrina, president W. Bush sent FEMA to the very border of Louisiana with relief supplies and equipment and help; but the governor of Louisiana dithered, refusing to act or grant permission for Bush to act. This clearly showed the limits of anti-federalism, by a president who believed in them at least that far.

So to my original argument, the back and forth between federalism and anti-federalism continues today.

I watched with some amusement in Iraq, after the second Gulf War and its occupation and government restoration. This is because they, as well, had and still have contention with the federalism-anti-federalism argument. Theirs is also a federal government, with their governorates and regions roughly equivalent to our states. Likewise, the latter also want considerable autonomy and power outside of their central government.

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