THE FATAL MISTAKE IN THE CRADLE – THE FEDERALIST SOCIETY AND STATES’ RIGHTS

In 1974 Professor Henry G. Manne founded The Law and Economics Center. Manne studied at the University of Chicago when Thomas Sowell’s thesis adviser George Stigler was there. They inherited a tradition from Friedrich von Hayek and Milton Friedman, that they needed to prove the failings of economic central planning. Central planning was popular all over the world at that time, as it appealed to the most basic human reason. These economists perceived an urgent mission to prove scientifically that central planning could not solve the economic problems that needed to be solved. They all spoke German like Eric Hoffer, the author of “The True Believer”, and they believed that mass movements and central collectives were the enemy of freedom.

It is important to remember that actual Federalists like James Madison grew up in small rural farming societies. James Madison never saw Nazi Germany or the USSR. James Madison died in 1836 before the commercialization of the steam engine. Madison wrote before most of the Industrial Revolution, and far before the rebellions against it from Marx and Lenin. The Federalist Papers were not written to solve the problems of industrial production or to prevent Marxist revolutions. The Federalist Papers were meant to mitigate the evils of man living in primitive agricultural communities from Ancient Greece to England and from tribes to monarchs, to protect individual rights.

In 1980, The Law and Economics Center awarded a prize to Thomas Sowell for his book “Knowledge and Decisions”, because it extended Hayek’s “The Use of Knowledge in Society” to show why the central government could not regulate a utopia. In 1982, students founded The Federalist Society, whose purpose has been summarized as “checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning”. Make no mistake, these New “Federalists” did not see the law as a means to protect a religious minority in small agricultural communities from a religious majority locking them in prison, which James Madison experienced in Virginia. They saw law as a check on arbitrary executive power of socialist dictators, and saw the freedoms of the Constitution as a tool to stop central planning. They found the Constitution to be a convenient tool to legally stop the fad of excessive government interference in the economy, from spreading in the United States.

When Janice Rogers Brown gave her famous speech “A Whiter Shade of Pale” to the Federalist Society in 2000, the case she used to illustrate the mortal threat to the American way of life was not a criminal case, or a religious or speech or gun rights case, but a case threatening “economic interests” Williamson v. Lee Optical. The Federalist Society had a fear of the federal government and a romanticism of state independence, which was based on an experience with communist countries not shared by the Founders. The Founders were focused on what Brown called “personal rights” meaning religious and personal freedom. The New Federalists irrationally glorified states’ rights, not because they had the same traditional values as shared by our Founders, but because states’ rights seemed like the opposite of a central planner, and of mass movements which found their home in the US federal government.

The Founders saw religiously diverse societies would constantly be at war without a strong central government. Justice James Wilson created federal courts in Article III saying “If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision”. The Founders protected the writ of habeas corpus from common law. The Founders believed the value and rule of law, and of checks and balances between the different departments of government, would be advanced with federal courts and power. The Founders feared for individual rights against imprisonment protected in the Bill of Rights, the New Federalists did not. The New Federalists feared for economic and business rights, against communists. The fetish of The Federalist Society for states rights, was the opposite of the benefits the Founders saw in a central government. The Constitution was made to protect local landowners from a central king, not to hand the rights of state landowners to a popular vote of peasants for a local king or sheriff.

When they irrationally romanticized states’ rights over the federal government, seemingly for the simple reason that it seemed like the opposite of the USSR, the New Federalists made the error that can be found right on page 12 of Sowell’s book written two years earlier: “To ignore the specific nature of the decision-making units is to expect improvement by trying to substitute ‘the good guys’ for “‘the bad guys'”. The New Federalists thought by substituting states for the federal government they would get a better result, substituting good guys for bad guys rather than trying to reform the federal government to follow the law. They also had the support of segregationists and southerners, who disliked northern states telling them what to do since Lincoln. I have yet to see any rational reason offered, why the New Federalists thought states would protect economic rights any better than the federal government. I can offer a reason that I came up with at that time, that diversity allows better states to emerge as with natural selection. But I never heard that from the New Federalists. They seemed to simply think there were good guys in the states who had better values than federal officials, and the states had values that the federal government could not be reformed to have.

The reality is voters are no smarter when voting at the state level, and communist countries can be as small as Cuba. You can “devolve power to the states” and get 50 Cubas, 50 Englands, or 50 Spartas. Ask the New Federalists if California better suits their ideals today, than when the federal government had more sway over it. Increasing the power and independence of states and state executives does not stop communism and may help it, and also creates new problems and perhaps even more corruption. And by romanticizing state voters who they imagined would be opposed to gay marriage and other popular fads, their states’ rights and populism has taken us back to something that was rejected as far back as the Magna Carta and Wat Tyler, when mob rule through the popular election of executives was restrained by courts and rights. Now the average Republican voter thinks shire reeves have final appellate jurisdiction as to law and fact, they hate Jew bankers, and they think state government should regulate the speech and religion of businesses.

The goal of the New Federalists would have been better stated as “protecting private economic liberty from federal and state-level power, while preserving federal power as a check on state-level power”. Or “checking all government power, federal and state, where the federal government is an important check on the states”. The idea that state-level power is somehow more virtuous is ridiculous. You can point out there was no right to abortion in the Constitution, without additionally rambling on that abortion needs to be decided at the state level. The Founders saw the individual as supreme, not the state government. The idea that some academics wanted to stop the USA from turning into the USSR, and a bunch of people thought that included the freedom of states to lock black people in prison without interference from federal courts, is ridiculous. The correct goal is to do it without interference by bad rulings in federal courts. You reduce the arbitrary power of federal judges by confining their discretion to the law, not by removing their court and giving power to state judges who are far worse.

So that was the fatal flaw in the cradle of The Federalist Society: Rather than focusing on bringing back the rule of law and rights at both the federal and state level – such as by simply reforming the US Supreme Court and interpretation of the commerce clause or whatever – they irrationally romanticized states’ rights, and then choices by the common peasant as voter, as magical solutions, which is contrary to the instruction of the books they were supposed to be reading at that time. The rule of law as a traditional value, is not dispersed among the common men on the street. Common peasants, through their votes in US state elections, hate law, rights, business, freedom, and their neighbors, as much as they did in Russia. And neither Madison nor Hamilton nor Jay would have expected any good result from romantically entrusting power to them. Now we are on the verge of losing all rights.