Can Federalism Work?

Jonah Goldberg expresses a great sentiment in his article The Federalist Solution. Whether you call it home rule, federalism, or something else, it appears to be a solution to the problem of everyone wanting to force their values down the other's throat: let groups live and legislate how they see fit with a few exceptions.

Goldberg ponders a potential positive outcome of a federalist system:

And federalism would let them all live by their mistakes as well. In San Francisco, which Gerken touts as a haven for “dissenters,” they translate their values into law. I think much of what passes for wise policy in San Francisco is idiotic, but it bothers me less than it would if Nancy Pelosi succeeded in making all of America like San Francisco.

However, our society won't let them "live by their mistakes" because ultimately somebody will have to pick up the pieces of failed policy and irresponsible behavior. Just as the junkie will get treated at the local emergency room - with or without insurance - so will the irresponsible legislative body be bailed out of a sticky financial mess by Congress. It has already happened in small doses with the stimulus and it would likely happen in large doses with federalism. If personal (or local) responsibility for one's actions were a reality instead of just wishful thinking, this might work.

This is a problem for the libertarian and conservative. Just as a Marxist must acknowledge that human nature would have to change dramatically to accommodate the musings of Marx, so the conservative must acknowledge how federalism fares alongside human nature. That is, unless societies are willing to refuse treatment to junkies or let communities collapse under the weight of their own financial irresponsibility, this will not work. As alluring as Galt's Gulch may be, it only works if everyone is playing by the same - or largely the same - set of rules.

As John Adams noted, "Our Constitution was made only for a moral and religious people." He is speaking about a shared set of rules by which the game is to be played. A certain degree of values unanimity is required for the Constitution to work and he is acknowledging that much of what makes the Constitution work is shared values. In an age when there was widespread cultural unanimity¹, Adams could make that statement with little qualification because the assumed moral code was Judeo-Christian and the religion was Protestantism, its work ethic and personal responsibility included. And unless human nature is altered or overridden to mirror the resolve of those in Galt's Gulch, real societies will not turn their backs on the rest of the world no matter how reckless or irresponsible they are. The EU's handling of Greece is such an example.

Toleration of differing moralities also presents problems to federalism. Social norms that cross lines established by the current ethos are not easily overlooked or tolerated. Tolerance is probably only possible when the disparities are not too great. Communities may be able to tolerate certain proclivities (nude beaches and naked dining in San Francisco; liquor laws in Utah) and be satisfied with dismissing the differences as "that's just how they do things over there," but the greater the disparities the more likely that adjacent societies will feel the need to intervene.

Neither the right nor the left is willing to stand by while their values are offended. It is hard to imagine that if somebody really believes that abortion is the taking of innocent human life that they would disinterestedly live their lives in a neighboring community without trying to impose their will through legislation. Similarly, if somebody really believes that anthropogenic global warming will ruin the earth, is it reasonable to think that they would sit idly by while the folks down the road choke the planet with CO₂ by burning fossil fuels? Or would liberty aficionados live quietly next door to the state that embraces Sharia? As oxymoronic as it sounds, some degree of homogeneity is probably helpful for federalism to succeed - especially in how the role of government and political economies are viewed (i.e., statism v. capitalism). But given the irreconcilable differences between the visions of the left and the right, it does not seem that they can coexist without moving beyond moral suasion to compulsion. The Union and Confederate armies attest to this.

In lieu of homogeneity and a relatively narrow band of tolerance, a heretofore unknown kind of tolerance that allows for broad moral and economic latitude might suffice. But is this possible? Unless anomie overtakes all members of society and they willingly slide toward moral anarchy, it is not likely that great disparities in social norms can coexist in a federalist system.

Add to that the apparent flexibility of morality and the problem worsens. What seems obviously immoral now, may not have been so obvious ten, a hundred, or a thousand years ago. Who in medieval Europe could have imagined that killing a whale or smoking in public would have garnered the level of moral outrage as it does today.

So even though federalism is a great idea in theory, can it ever become reality? Probably less likely than implementing a flat tax or a consumption tax.

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¹This is not to imply that there weren't significant disagreements during the founding of America. However, economic realities tempered much of what is obsessed about in modern times.