A Question About Federalism...

Watch this space for upcoming news. Big announcement in just over a week. In the interim, I've got a couple of links to offer (a speech I gave a few weeks ago, for instance, as well as an interview on the EPA's new ozone regs). I'll give those over the next few days.

As many of you know, I do a lot of speaking. And one of the great joys in my job is when I speak to student groups. Since 1999, I've done several debates a year for a group that brings in Jewish high school students to DC, and I've started doing debates for the CloseUp foundation, which I'm enjoying. I had a great time at the Students for Liberty conference last month, and plan on getting more involved with that organization.

I've also had the privilege of hosting student groups at my office, to discuss lobbying, small business, and my limited-government views on public policy. Frequently, I've heard from a number of these students afterwards - several of whom I've become a mentor to. I'm happy to give advice, even to students whose political views diverge sharply from my own, and answer questions from them.

I was pleased when I got such a question today from a student who had been a part of one of these seminars a few weeks ago. She'd mentioned her own libertarian views, and asked some fundamental questions about her own discussions in school, and honestly I had so much fun putting together a response today that I wanted to share it with you all.

Here was her question:

Hello Andrew,

As far as your inquiry about the
problems I have experienced in school, most of my problems arise when
discussing the Constitution and big government. I am of the personal
belief that the U.S. Constitution grants the federal government only
certain powers and those powers are enumerated in the Constitution.
However, many people that I go to school with believe that the federal
government can do whatever they please as long as it is not explicity
forbidden in the document. I believe that this infringes on people's
rights and the government is overstepping its bounds. In my opinion,
the federal government has become too big and is constantly in
everyone's business - this kind of conversation leads to some pretty
heated debates at school! However, I do enjoy the debates and I learn a
lot from them, but it is always nice to be surrounded by someone who has
similar views to myself because I have constantly been in the minority
at school. I won't bore you with other debates that I have encountered
throughout my educational career, but that gives you a sense of what I
am dealing with. I'm curious if you ever had to deal with similar
situations while you were in school and how you handled them because any
advice I can get to alleviate some of my frustrations would be most
appreciated! :) - Rachel H.

My response:

Rachel:

It's funny - I was actually saying this at the Students for Liberty
conference (and I don't know if they have a website - they do have a
facebook group). I envy college students who are certain of their
libertarian/limited government beliefs and are so knowledgeable about
them. I didn't really understand my views of government until a few
years after college - I had vague understandings of freedom and the
protection of rights, and was always a bit hawkish, but I didn't really
have a name for those libertarian values until later.

And William and Mary was an odd place because, at the time, many of the
students were conservative/anti-statist/jeffersonian.

But in the end, in those debates that you're having in school, rest
assured that you're in the right. Though there has been an expansive
interpretation of the federal government's powers under the commerce
clause over the last 150 years, in the 90s the Supreme Court began to
sharply rein in those powers (take a look at the Lopez and Printz
decisions, as well as the high court's decision in SWANCC (Solid Waste
Agency of Northern Cook County)). And my favorite, of course, is New
York v. United States, a 1992 Supreme Court federalism case.

The Constitution lays out the specific powers of the federal government.
The founders thought it important to reiterate the limitations on
federal power by appending the Bill of Rights. And it is all summed up
in the 9th and 10th Amendments: all that is not surrendured by the
people is retained, simply because certain rights are not enumerated
doesn't mean that they don't exist, and anything not ceded to the
federal government is reserved to the states or to the people
respectively.

The High Court says that the 9th and 10th Amendments are "tautologies" -
a reiteration of something that's already understood (again, from New
York V. United States).

One of the debates I've gotten into recently (and I've been doing
debates in front of high school students on the traditional "liberal
versus conservative" ideologies, though I tend to frame it as a "big
government versus small government" debate), is this issue of whether or
not "the government is us". The idea is that as conservatives or
libertarians attack government, they forget that government IS the
people, so in essence they're attacking themselves.

My response is two-fold:

a) when government gets too big for the people to effectively control,
it no longer is reflective of the true will of the people. It is an
entity unto itself, with too many individual players serving to build
their own fiefdoms of power, power that has a direct impact on some
segment of the real "people". The High Court is no longer the check on
unfettered government power that it once was (with a few key exceptions
- several mentioned above), and in fact has endorsed an expansive
interpretation of deference to federal agencies. So while the "people"
may have one interpretation of "navigable water of the United States" in
mind, the agency has deference to interpret that to mean that a patch of
dry land in Nevada can be considered a "navigable water of the United
States" (of course, what they can regulate _WAS_ ultimately curtailed by
the high court. On the other hand, the EPA has been looking for ways
around that decision).

A big, uncontrollable government is prone of mischief, no matter which
party is in power. Is the Patriot Act that much different from the
COINTELPRO of LBJ/Nixon?

b) And even if the people demand that the government grow, the
Constitution lays out strict rules that are supposed to be followed.
The people could demand that private property be seized from landowners
and redistributed, but the Constitution says that power is limited.
Private property can be taken, provided that it is for a legitimate
public use, that due process is accorded to the property owner, and just
compensation is paid. The people could demand that a law be passed
outlawing the burning of the American flag, but the Constitution says
"no."

Just because the people want something doesn't mean that it has to be
done. "The Constitution protects us from our own best intentions." -
again, New York v. U.S. (yes, I love that case. It's all in there.).

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Just wanted to share all that with you.

- Andrew Langer