Category Archives: Federalism

It’s Time To Double Tap The Republican Party And Build Its Replacement

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The Republican Party primary voters did it. They nominated Donald Trump as their presidential nominee.

I predicted as far back as August 2015 that Donald Trump would destroy the Republican Party and it appears he has. Trump is the choice of it seems Republican voters. His numerous racist and xenophobic statements and positions and his hostility to the Constitutional limits of his power weren’t a problem in the end.

There is no home in a Republican Party ruled by Donald Trump for those who hold classical liberal views and/or traditional conservative values. Those libertarians, conservatives, conservatarians, Constitutionalists, classical liberals, and the rest who believe in the principles of the American founding are now politically homeless. The day after Trump knocked Ted Cruz out of the race, I left the Republican Party.

The Republican Party is a dead political party. It’s a zombie just shuffling forward in search of human flesh. The #NeverTrump movement should double tap the Republican Party. It is little more than a Grand Zombie Party now and start building its replacement.

The #NeverTrump movement is beginning to realize that the Republican Party is beyond saving. A couple of Iowans, Joel Kurtinitis at The Blaze and Steve Deace at Conservative Review, want the movement to think bigger than just defeating Donald Trump. They’re both on board the “we need a new party train.” I completely agree with both men.

We need a party that argues in favor of the classical liberal principles of America’s founding. We need a party that recognizes that populism is just another form of statism.

Why Not The Libertarian Party?

The Libertarian Party is America’s third largest political party. It will likely have ballot access in alll 50 states plus the District of Columbia this year. It is running some pretty good candidates for president. I hope they get the 5% of the vote necessary to receive Federal campaign matching funds. This would be good for American politics.

However, as a long-term solution, the LP is not what I’m looking for. The Libertarian Party’s primary purpose is an educational tool for libertarian ideas and that’s great. But a new home is needed for the broad classical liberal spectrum for winning and governing.

What Should This New Party Look Like?

Some thoughtful pieces have come out recently about the direction this new party would take. The first one is a two-part series run on The Federalist by Paul D. Miller about bringing back The Federalist Party. The second part outlined a platform suggestion.

Decentralizing power is the best way—perhaps the only way—for an increasingly pluralistic people to govern themselves: a pluralistic people calls for plural governments. Americans are increasingly divided not merely by race, class, and gender—which has always been true—but by differing sets of values, by religious and sectarian identities, by basic understandings of justice and democracy that have drifted apart in recent generations.

The progressive left and quasi-fascist right believe the increasing fragmentation of American life is a malady which must be cured by the strong hand of government. In fact, those very movements are both cause and consequence of the fragmentation of American society, and their agendas can never create the imagined unity of the romantic past or utopian future.

The Federalist accepts the pluralism of American life as a reality to be accommodated, not a disease to be cured. The way to safeguard human dignity and self-government in a culturally pluralistic nation is to revive the institutions of plural government; that is, to devolve power to the several governments closer to the people they govern.

A more decentralized Federal government must be a major part of the platform. After all, we are a nation of 50 different states, each with their unique values and cultures. A “one-size fits all” approach to government fails. But decentralization alone is not enough. The Federal government has some roles.

Jeff Goldstein at Protein Wisdom had some thoughts of his own on a possible new party platform. I recommend reading the entire piece but I wanted to highlight his 6 main planks.

1) Individual liberty
2) Federalism and representative republicanism
3) Constitutionalism
4) Judicial originalism
5) National sovereignty
6) Free-market capitalism

These are a good start. The only minor quibble I would have is I’m more of a Randy Barnett “judicial engagement” type than a judicial originalist. I can get on board with the rest easily though.

I think we need to add a few planks though and call the whole thing “Nine For Freedom” or something. Here are my suggestions:

7) Growth and opportunity: The old economy is dead. The idea of having a job right out of college and staying with the same company until you retire doesn’t happen anymore. We’re shifting towards a “gig economy” where many people are freelancers. Uber, Lyft, Airbnb, Fiverr, Ebay, and many other innovations make it easy for almost anyone to be in business for themselves. The economy itself has an anemic growth rate that shows signs of getting worse. We need to unleash the American people by getting government out of the way. We need to lower the world’s highest corporate tax rate, reduce regulations, and attack crony capitalism that delivers privileges to a well connected few. We need to reform our outdated Industrial Era education system, promote school choice, and fix higher education so that you don’t have to have a bachelor’s degree to wait tables. Finally, we need to have a free market approach to fix or replace Obamacare.

8) Welfare and Entitlement Reform: We have a major problem with our welfare state. It still traps people in dependence and discourages work. Social Security Disability fraud is bleeding the system dry. We can’t have this as a nation. At the same time, we shouldn’t hold people who do need a temporary hand up in disdain. Most people don’t make welfare a lifestyle. You can hit this many ways. The guys over at the Foundation for Government Accountability have great ideas to reform welfare. If we want to go bolder, we may want to consider scrapping the alphabet soup of welfare programs and replace it with some kind of basic income program. If you want to undermine the sources of support for the Trumpist right and the progressive left, you have to attack the welfare state.

9) A Strong, Secure, And Free America: We will aggressively confront the enemies of this country. We will stand for liberty and freedom allaround the world. We will have a military and intelligence capability that is second to none. However, we will not engage in military crusades for democracy, seek dragons to slay, and engage in dubious neocon nation building schemes. We believe in the power of diplomacy and we believe in free trade. America will be involved in the world but we will not police the world alone. We will ask our allies to do more to protect themselves not because they’re not important but because we cannot and will not do it alone. Finally, while we will be vigilant about detectingthreats from abroad, we will not listen to your phone calls, read your emails, track your online browsing, or otherwise spy on you without a warrant. America should not throw away its founding principles even in wartime.

We have an opportunity to reshape the political landscape. The Republican Party is little more than a home for racists, kooks, reactionary populists, demagogues, con artists, and political opportunists. It no longer serves the purposes of liberty.

Let’s build something that does.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.

Yes, There Really Are Two Americas. Look At How Different The South Is

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This year marks the 150th anniversary of the end of the War Between the States. The Northern states, fighting to preserve the Union and (later) to end slavery, defeated the Southern states in a war that resulted in over 600,000 dead.

The war all but ended the concept of state soverignty as the question of secession was decided on the battlefield. The war also gave birth to concept of American nationalism as Americans began to consider themselves as American before being a citizen of their state.

However, America is probably now divided more than it has been in decades. The nation seems to be hopelessly gridlocked politically. Meanwhile, the culture wars are in full swing with social justice warriors going to war against traditionalists and libertarians. There really are two Americas.

What explains the division? I argue that culture and region probably provide the best clues to the division of America.

The Economist had an excellent article earlier this month describing how the South is still culturally different from the rest of the country. Why is that the case?

 

The dividing line is actually religion.

Religion is a better explanation of southern exceptionalism. The civil war divided most of America’s Protestant sects, says Mark Noll of the University of Notre Dame. Both the Presbyterian and Methodist churches split into northern branches, which opposed slavery, and southern branches, which did not. Even after slavery ended, theological divisions persisted. In the north, which saw mass immigration from all over the world in the decades after the war, Protestant churches had to find some accommodation with Jews, Catholics and, eventually, non-believers.

 

 

In the South the share of those born outside America (which was low to begin with) actually fell after the civil war. New migrants moved west or north but rarely south. Because of this, southern churches could hold more traditional views without challenge. Those tented revival meetings that were such a feature of southern Protestantism were not intended to win converts so much as to purify and strengthen beliefs that were already there.

 

 

The Southern Baptist movement, which is strongly associated with the “values voters” who favour the Republicans, has its origins in support for slavery. Southern Baptists have long since updated their views on race, as the many black Southern Baptist pastors attest, but the movement’s social conservatism endures. And southerners are unusually observant: Utah is the only non-southern state where church attendance is as high as in Dixie.

 

 

Southerners are also known for being fiercely individualistic. As the rest of America becomes more secular, it should be no surprise that the region still strongly believes in the Protestant work ethic and tends to be more supportive of limited government. They’re also willing to forgo a large portion of the safety net because religious charities will largely step up and fill the role.

Another interesting thing about Southern culture is how it tends to leave its mark on surrounding cultures. There are reasons why in particular heavily Catholic south Louisiana, pre-dominately Catholic Hispanics in Texas, and the Catholic Cuban-American community in Miami are more conservative than Catholics in New England and the Midwest. Those Southern values of individualism, hard work, personal responsibility and family values have rubbed off on those communities.

Here’s an interesting map from The Economist article.

Courtesy: The Economist

Courtesy: The Economist

A lot of the orange on the map corresponds to the red state/ blue state maps on presidential elections. The more secular states tend to vote Democratic while the more religious states vote Republican. The views on abortion and gay marriage also tend to align with religious viewpoints.

As you can see, America is deeply divided between a more religious and ironically more individualistic South and Midwest and the more secular coasts. Could the differences between these two Americas lead to secession and civil war? Who knows.

Now, I don’t believe you have to be religious to be moral and that all religious people are moral. But I do believe that a free society only survives when it’s populated by a moral people. The purpose of this post is not to pass judgement on anyone’s religious beliefs.

Let me close with something. We have quite a few non-religious and atheist contributors here who believe in free markets and secular values. I value them all and I’m proud to call them friends. I also know they’re the exception, rather than the rule among secularists. Most atheists generally lean to the left and conservative and libertarian atheists tend to be the exception than the norm.

Here’s an exit question: do you think many secularists replace religion with a belief in the state and social justice and that’s why they’re hostile to limited government? Let us know in the comments.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.

Sympathy for Paranoia

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The moon landing was faked by the U.S. government for propaganda purposes to win the Cold War. The terrorist attacks of 9/11 was actually an inside job as a pretext to go to war. Space aliens landed in Roswell, NM but the government has been covering it up. The Sandy Hook massacre was faked to increase support for new gun control laws; the “victims” were actually actors who are all alive and well today. The Illuminati is the secret entity which actually governs the whole world…

The natural response to these statements is to say “these people are mad barking moonbats” and to keep ourselves as distant as possible from the people making them. Those of us in the liberty movement who want to be taken seriously are very quick to renounce anyone who is within six degrees of Alex Jones or anyone else who states any of the above. It’s difficult enough to be taken seriously about legalizing drugs, the non-aggression principle, free markets, and freedom of association; the last thing we need is to be lumped in with “those people.”

While it is very important to defend the “brand” of the liberty movement, it’s also important to recognize the reasons why people believe some rather nutty things.

[W]hen I say virtually everyone is capable of paranoid thinking, I really do mean virtually everyone, including you, me, and the founding fathers. As the sixties scare about the radical Right demonstrates, it is even possible to be paranoid about paranoids. – Jesse Walker, The United States of Paranoia: A Conspiracy Theory, (p. 24) (Read my book review here)

Once one learns about some of the activities governments been proven to have been involved in, some conspiracy theories no longer seem as outlandish. I used to refer to conspiracy theories and wacky beliefs as “black helicopter” stories and I’m fairly certain that others used the same terminology. Once I learned that black unmarked helicopters were used in the assault by the FBI on the Branch Davidians in Waco, TX,(Napolitano, p.110) I stopped calling such ideas “black helicopter.”

Not everything that sounds crazy is.
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An Article V Convention Is A Great Idea……If You Want To Destroy The Republic

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Article V to the U.S. Constitution lays out two methods for amending the Constitution:

  1. Congress passes an amendment by two-thirds vote and sends it to the states for ratification
  2. Two-thirds of state legislatures pass a resolution call for a convention to propose amendments, that would be sent to the states for ratification.

Amendments proposed either way have to be ratified by three-fourths of the states. All 27 amendments to the Constitution have been proposed by the first way. However, many conservatives are calling for an Article V Convention of The States to curb what they see is a Federal government that refuses to deal with a debt crisis, regulatory overreach, infringements upon state sovereignty, and Federal government overreach. Other Article V proposals include the “liberty amendments” that were proposed in 2013 by conservative talk show host and constitutional attorney Mark Levin.

However, without dealing with the specifics of the proposals laid out by those who are supporting an Article V convention, I believe that an Article V convention is a terrible approach to amending the constitution and in fact will likely result in a less free America.

The first problem with the Article V convention is that it’s never been tried before, with good reason. Matthew Spalding wrote this for the Daily Signal:

The requirement that amendments proposed by such a convention must be ratified by three-fourths of the states is a significant limit on the process and would likely prevent a true “runaway” convention from fundamentally altering the Constitution. But we don’t think it is at all clear, for instance, that two-thirds of the states calling for an amendments convention can limit the power of all the states assembled in that convention to propose amendments to the Constitution. Other questions include the many practical aspects of how an amending convention would operate and whether any aspects of such a convention (including going beyond its instructions) would be subject to judicial review.

 

 

Which leads to the second problem with an Article V convention, which is that everything will be on the table. The New American magazine reports that at least one progressive PAC is calling for an Article V convention in order to pass an amendment to overturn the Citizens United decision. In addition, progressive Supreme Court Justice John Paul Stevens has released a wish list of amendments. In an Article V convention, all of these things can be considered and what may result if a series of proposed of amendments reflecting a populist smorgasbord of proposals designed to cobble together the support of 37 states.

The third reason why an Article V convention should be rejected is that all of these proposed changes can be accomplished through the normal Congressional amendment process. An Article V convention should be reserved just for national emergencies given all the inherent unknowns that would be involved. No one in their right minds can credibly argue that any issue we’re facing right now that an Article V convention would remedy is truly a national crisis that needs to be solved with the dramatic step of a constitutional amendment, let alone one passed in this measure.

The final reason why liberty-lovers should reject an Article V convention is that it essentially is a shortcut to doing the hard work of persuading fellow Americans and our representatives that we need to make these changes. What the Article V proponents are essentially trying to do is to overturn 80 years of election results without actually putting in the hard work of persuading fellow Americans that they should make the changes. If they could not convince the American people to endorse this agenda in an election, how are they going to convince 37 states to endorse these ideas?

An Article V convention is a radical measure that will, unfortunately, provide a platform for populist demagogues to promote their agenda to the detriment of liberty. Need I remind everyone that the original mandate of what became the Constitutional Convention in Philadelphia in 1787 was merely to revise the Articles of Confederation. Instead, it produced a brand new governing document. It’s just as likely that an Article V convention will produce a constitution that will radically different than what its proponents advocate.

In the end, there’s just simply too much risk and too many unknowns surrounding the Article V convention to go down that road.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.

Sixth Circuit Decision Upholding Gay Marriage Bans Invites Supreme Court Review

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On Thursday, the U.S. Court of Appeals for the Sixth Circuit upheld gay marriage bans in Ohio, Michigan, Tennessee and Kentucky. It did so by reversing lower court rulings striking down the bans. This decision puts the Sixth Circuit out of step with the other circuit courts to address the issue thus far (the Fourth, Seventh, Ninth and Tenth). The decision is sure to be appealed, and many observers believe it will be the vehicle by which SCOTUS finally weighs in on the issue.

DeBoer v. Snyder was decided 2-1. The majority decision was authored by Judge Jeffrey S. Sutton. Sutton largely argues that the definition of marriage should not be “constitutionalized” and that change should come from the voters. He maintains that the right to marriage recognized as fundamental in prior SCOTUS cases is defined by, and presumes, a relationship between one man and one woman. He rejects sexual orientation as a suspect classification entitled to heightened scrutiny, and frets that constitutionalizing gay marriage will require recognition of plural marriages.

Having found no need to apply heightened scrutiny to the bans, Sutton finds two rational bases for denying marriage to same sex couples. The first involves channeling straight people’s sexual energies into monogamous, legally binding relationships:

One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means.

The dissent scores powerful points observing that heterosexuals are already free to follow their procreative urges where they will, and that the unwanted children resulting from such unions suffer when their adopted same-sex parents are precluded from marrying. In any case, Sutton’s second rationale for upholding the bans has to do with principles of federalism:

[O]ne of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. …. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.

Indeed, this decision creates a conflict among the circuit courts that did not exist (or at least not clearly) back in October, when SCOTUS declined to hear appeals from decisions in the Fourth, Seventh and Tenth circuits striking down similar bans.

Shortly after SCOTUS declined those appeals, the Ninth Circuit also struck down bans.

Collectively, those decisions were reached in a variety of ways: finding that the bans failed under rational basis review; applying heightened scrutiny to restriction of a fundamental right under a due process analysis; or applying heightened scrutiny under an equal protection analysis based on suspect classification or history of animus. However reached, they had the result of making gay marriage legal in 32 states (with three additional states with bans still technically in effect, which will inevitably be struck down).

That left litigation percolating in the Fifth, Sixth, Eighth, and Eleventh circuits. The decision Thursday by the Sixth was the first to break the prior pattern. Most commentators believe SCOTUS will now accept review to resolve the conflict. As Doug Mataconis, writing for Outside the Beltway, explained:

[T]he most important thing about the decisions in these cases is the fact that it creates the split among the Circuit Courts of Appeals that the Justices apparently felt was lacking when they considered the appeals it acted on in early October. … With this decision, though it can no longer be said that there is not a Circuit split since the differences between Judge Sutton’s opinion and those from the other four Circuits could not be more apparent. Thus, the one thing that didn’t exist on this issue in early October regarding this issue can now be said to clearly exist, and the likelihood that the Supreme Court will accept an appeal to this decision would seem to be quite high.

Only four justices need to agree for SCOTUS to accept an appeal. Assuming one is accepted, Mataconis and others predict SCOTUS will rule that the states cannot regulate gay marriage, by a majority consisting of at least Ginsburg, Breyer, Sotomayor, and Kagan, plus Kennedy.[1]

From my own perspective, I do not see how we avoid the leviathan of government once we accept its tentacles are properly applied to the regulation of personal relationships. Even if the collective will was acceptably used to such ends, I have not come across convincing reasons for denying same sex couples access to the same bag of government goodies, incentives and subsidies enjoyed by opposite sex couples. The various theories propounded by opponents of gay marriage are belied by the sound sociological research to the contrary. Plural marriage does not frighten me, both because it does not rise to the same level of constitutional scrutiny as gay marriage—and because it is inherently non-frightening. Finally, I have and will continue to oppose all efforts to force private people, churches or businesses to associate with gay marriages against their will. The same principles that underpin the right to choose a spouse also underpin the right to choose with whom to do business.

I will close with Justice Sutton’s own observation that:

Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers.

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[1] Kennedy wrote the majority decisions in Romer v. Evans (overturning a Colorado law preventing local governments from enacting anti-discrimination regulations to protect homosexuals), Lawrence v. Texas (overruling sodomy laws), and U.S. v. Windsor (overturning provisions of DOMA allowing the federal government to refuse recognition of same-sex marriages performed by states).

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.
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