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Focusing on Federalism Obscures the USA's Greater Decentralization
The Constitution calls for life, liberty, and property to be made secure by multiple independent powers who act with sacred honor.
James Anthony
September 10, 2021
In law, what many people refer to as the 5th Amendment’s Due Process Clause isn’t at all focused on due process, it’s actually the Constitution’s preeminent rule—that, apart from exceptions for constitutional war and punishments, “No person shall … be deprived of life, liberty, or property” [1].
What gives this rule its force, and what gives all the Constitution’s rules their force, are the many provisions in the Constitution for separated, offsetting powers [2]. By his oath [3], each officer in each jurisdiction is required to use each power of his office to protect we the people against any government people who the officer himself believes is violating the Constitution [4].
Federalism, in this context, boils down to the use of state-government powers to offset the national government’s power-grabs. Federalism therefore includes only a subset of all the available offsetting powers. Further, from the start federalism has been systemically inhibited by politicians’ tendencies to herd together, refusing to use their offsetting powers unless nearly the whole herd will act in unison [5], which would provide cover for each individual politician; and also by state politicians’ powerful ambitions for national offices.
We’re better off not narrowing our focus to federalism but instead considering the full universe of offsetting powers—jurisdiction against jurisdiction, branch against branch, officer against officer. To get this right, the best starting point is to understand we the people’s sovereign power.
Powers from Individuals
Individuals are sovereign and always remain sovereign [6].
Individuals establish governments to assist in making individuals’ natural rights secure [7]. Governments that violate individuals’ natural rights therefore are always illegitimate, even though for individuals to reclaim their powers back from these governments can take individuals time and can cost individuals more violations of their rights.
In governments of republican form [8], which are required by the Constitution [9], the scopes that individuals delegate must be limited. So what’s supposed to happen is that individuals delegate limited enumerated scopes to the national government, to state governments, to county governments, to city governments, to neighborhood-association governments, and to voluntary-association governments. State governments have violated this constitutional requirement from the start, and continue to violate this [10], but this is still what the Constitution requires; it’s just awaiting constitutionalists to enforce it, like the 5th Amendment’s rule protecting liberty long awaited.
In the event of conflicts between the scopes that individuals delegate to various government jurisdictions, in some cases individuals create rules that resolve conflicts in favor of one delegee over another, typically favoring the government that has the larger jurisdiction. In all cases individuals made the Constitution supreme [11], so in all cases any government officer who is following the Constitution is using his power legitimately over any government officer or crony who is defying the Constitution [12].
Rules are only as good as the offsetting powers that can be used to enforce them against Constitution-violating people. Each government jurisdiction has some level of power its people can use to enforce not only the rules of the government jurisdiction but also the rules of the Constitution.
That means that a lot of parallel, redundant functionality is built in. That’s not a bug, it’s the most-critical feature.
Good Help
The 14th Amendment’s supposedly-new limits on state governments [13] in fact were already present in the 5th Amendment but simply had not been enforced by the national government. Nothing in the sweeping language of the 5th Amendment restricts its application to the national government, or even restricts it to be applied only against governments but not also against government cronies [1].
Nor should it. The Constitution combines both best-practice practical application and the highest aspirational theory, and of that theory, the 5th Amendment is the most fundamental [14]. Life, liberty, and property are the most-fundamental natural rights, and the 5th Amendment’s rule is that each of these natural rights is to be made secure against all usurpers.
What in practice has seemed to reduce the powers of state governments all along has been the state-government officers not asserting their residents’ powers over all scope not enumerated to the national government [15]. The Constitution still provides the same rules it always has provided that limit the powers of the national government, and the Constitution still provides the same offsetting powers it always has provided to get those rules enforced.
The widespread failure of government officers to use these offsetting powers against others in government is why we don’t have limited governments.
No Party
The reason we are stuck with government officers who almost all fail to use their constitutional powers against others in government is that both major parties work against constitutionalist candidates and work to favor Progressive candidates.
The parties have been able to do this because no party has taken the structure of limitations that the Constitution places on the national government and replicated this in the party’s own rules and practices [16], and because no party ensures the quality of the candidates who use its brand name [17]. Understanding these problems is the biggest step towards solving these problems.
Federalism is a valuable layer of protection, but all of the multiple independent layers of protection [18] are valuable. And the system’s overall decentralization—starting with individual sovereigns, and both empowering and insisting on individual officers’ use of their offsetting powers—is what’s the most valuable.
References
James Anthony is the author of The Constitution Needs a Good Party: Good Government Comes from Good Boundaries and rConstitution Papers: Offsetting Powers Secure Our Rights. He has written articles in rConstitution.us, American Greatness, Foundation for Economic Education, American Thinker, and The Federalist. Mr. Anthony is an experienced chemical engineer with a master’s in mechanical engineering.
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