Many of today’s debates between statists and libertarians are argued on the grounds of efficiency. The libertarians say that when you let the government do something, you invariably get the DMV or the post office. Statists argue that a centralized public service provides better results because it can gain efficiencies of scale and because the lack of a profit incentive eliminates greed. They cite examples like NASA and the Internet to claim that government can do things that would be impossible in the private sector.
I am sympathetic to the libertarian argument on this topic, but in this essay I will argue that efficiency is not everything. Even if the statist point of view on efficiency is correct, there are still good reasons for enforcing Constitutional limits on the scope of government.
Fail Safe: The design principle that requires that the failure of part of a system will not result in the failure of the rest of the system
One thing is clear about most systems of government. When they fail, they fail catastrophically. We can see this in tyrannies around the globe and throughout history. Unique at the time, the checks and balances of our Constitutional system of government provided for fail safe protection from tyranny. Any branch of the federal government can be checked by two other branches. In the case of the federal government, the fail safe design against tyranny is described in this table.
This table shows that a failure in one branch of the federal government should not lead to a cascading failure of the others. This fail safe design is the view of government that I learned in my government school education. Unfortunately, there is a problem with this view. It is incomplete. A cynic might say, intentionally so, for this oversight tends to engender trust in the federal government while simultaneously weakening the position of the state governments and the individual.
In addition to the branches and make-up of the federal government, the Constitution also discusses the roles of some other participants of our Constitutional government. In places, the Constitution refers to the “United States”, the “States” and the “People”. This is the so-called vertical separation of powers. The Tenth Amendment provides a good example of the use of these terms.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
At the time of our founding, we also had vertical checks in place among those entities. This is illustrated in this table.
With respect to the States and the United States, we see Madison’s so-called “double security”. States can check the United States and vice versa. This, also, is a fail safe design. When people talk about “States’ Rights”, it is not just a question about who wields power. It is a question about the reliability of our governmental system. If the balance is off between state power and federal power, the system is no longer “fail safe” and is susceptible to a cascading failure.
In recent decades, the idea has taken hold that the rule of law requires that the supreme court should be the final arbiter in all matters of law. This idea purports to take Civil Disobedience, Jury Nullification and Nullification all off the table. These concepts, the statist claims, are outdated and obsolete, belonging to a less civilized time.
Does this claim make sense? The statist’s table, then, looks like this.
We see that with the addition of the 17th amendment (Senators elected by the people, not appointed by the state legislator) and without the option of nullification, the States are left defenseless against a tyrannical federal government. Without the options of civil disobedience and jury nullification, the peoples’ power to resist a tyrannical State or a tyrannical United States are dramatically reduced. If Murphy’s Law is right — And on a long enough time scale, it is — A failure at the federal level of government will eventually cascade to the states and ultimately to the people.
Kip’s Law: Every advocate of central planning always — always — envisions himself as the central planner.
During the last decade, simultaneous control of two branches of the federal government has been held by each division of our controlling, big-government party (republican and democrat). When the republicans were in power, democrats around the country expressed grave concerns about the direction of our country. Now that the democrats hold power, republican citizens are expressing similar concerns. Libertarians have been consistently alarmed by the continuous growth of government under both divisions.
Meanwhile, powers which the republicans consolidated, like the Patriot Act, are now being wielded by the democrats. Powers the democrats collect now, like control over health care choices, will ultimately be administered by republicans. In Washington, as we see from the renewal of the Patriot Act, democrats will use republican powers to further their own goals and republicans will use democrat powers to do the same. History has shown that both parties are unwilling to relinquish powers which have been acquired by the other party.
If we do not recharge the Tenth Amendment, the best case scenario is that one half, then the other, of the people of this country will be unhappy about the state of their liberties for the foreseeable future. Since neither party relinquishes power collected by the other party, it will likely be worse than that. In addition to the intended use, powers collected by one party will go on to be used by the other in ways that were never imagined by the party which acquired them. Ultimately, this is leading to systemic failure, as the People are slowly alleviated of their rights, one right at a time.
On the other hand, if we reawaken to the Tenth Amendment, the people will have a new ally, the State, with the powerful tool of nullification. If the people and the States work together, we have all the tools we need to restore balance, ensure fail safe design, and prevent an overreaching federal government from leading to a systemic failure.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
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