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Monday, May 30, 2011

Randy Barnett’s Bill of "Federalism” [sic]: Why does Randy so persistently confuse libertarianism with federalism?

There has been a bit of a debate here at Prawfsblawg about whether Randy Barnett's attack on ACA really just a libertarian theory dressed up in a federalism costume. As I have observed earlier, I tend to agree with the critics that Randy's theory is best understood as libertarian theory rooted in the allegedly special burden imposed on private freedom by affirmative commands.

Randy's other advocacy efforts suggests that this tendency to mix libertarianism and federalism can lead to constitutional false advertising. For at least a couple of years now, Randy has been pressing the ratification of a "Bill of Federalism," a set of ten proposed amendments to the U.S. Constitution that would allegedly protect federalism from encroachments by the Congress that are now permitted by the SCOTUS's precedents. But Randy's "Bill of Federalism" title for the package is pretty misleading: Half of the amendments have nothing much to do with federalism, if "federalism" is understood to mean "constitutional theories that protect subnational governments' power." Indeed, two of Randy's proposals are actually attacks on subnational power. Proposal # 5 protects "Freedom of Political Speech and Press" by including within the concept of speech "any contribution to political campaigns or to candidates for public office," and Proposal #9 subjects both state and federal legislation to a sort of heightened judicial scrutiny whenever such legislation burdens a grab-bag of "natural, inherent and unalienable rights," including the rights of "acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety." Both of these proposals, therefore, would centralize policy-making by subjecting state laws to federal judiciary's veto enforcing new national rights. Randy's proposed amendments ## 7,8, and 10 do not actually undermine federalism, but they do nothing to advance it: Instead, these three proposals are a grab-bag of reforms favored by populist libertarians such as a line-item veto for federal appropriations, term limits for members of Congress, and a ban on judicial "reference to the law of nations or the laws of other nations."

Why would Randy mislabel these populist and/or libertarian proposals as protections for "federalism"?

Note that calling for new nationally protected individual rights in the name of federalism is significantly harder to explain than calling for more federalism in the name of individual rights. As I have earlier observed, libertarians seem to gravitate to the notion that federalism protects individual liberty, probably out of some notion that mobile citizens can protect themselves from rapacious subnational governments by fleeing to less oppressive competitors. This, at least, is the idea behind Barry Weingast's "market-preserving federalism" and Brennan's and Buchanan's "leviathan-constraining" federalism. But such a notion cannot explain why Randy would defend new individual rights as a species of federalism: No one has ever contended that having federal judges enforce limits on campaign finance laws -- including state and local campaign finance laws -- somehow advances the cause of subnational governments' power.

Likewise, Randy's misnamed "Bill of Federalism" cannot be defended as part of a general preference for small government. Richard Esenberg suggested a year ago that libertarians might equate libertarianism with federalism out of a general distrust of bigness. According to Richard, "[i]t may well turn out that individual liberty –- as well as the liberty of smaller communities –- is promoted by the devolution of decision-making," an idea that Richard ties to "a Hayekian suspicion of the capacity of increasingly larger and more centralized bodies ever to have the capacity to make good decisions." Note, however, that Randy's call for two new national rights seem inconsistent with this small-is-beautiful argument for federalism: Under Randy's "Bill of Federalism," unelected Article III judges appointed by a President elected by an enormous national constituency will veto campaign finance laws enacted by, say, little bitty Arizona. In the battle between the federal Goliath and the subnational David, Randy is apparently rooting for Goliath.

So what's going on here? Why is Randy pressing populist libertarian proposals like term limits, balanced budgets, and freedom of contract in the name of "federalism"? A cynic might suggest that Randy is trying to camouflage controversial conservative ideas in neutral-sounding constitutional language of federalism. Does anyone have an alternative explanation to prove the cynics wrong?

Posted by Rick Hills on May 30, 2011 at 01:44 PM | Permalink


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Rick, I agree, and made similar points in 2009. Quite aside from the hideous danger of a convention, which Randy discounts entirely, his proposal is more a raft of changes he likes (most of which I agree with, for what it's worth) rather than a consistent federalism. I think the mixing of the two happens like this: It's been my perception for a while that Randy believes the founders were libertarians, and that the constitution is libertarian, and (I apologize if either premise misrepresents his position) thus it follows that structures like federalism, written by libertarians in a libertarian constitution, must themselves be libertarian. Neither premise is true (they weren't, and it isn't), but if that's where one starts from, at least the merging of federalism into libertarianism becomes coherent.

Posted by: Simon | May 31, 2011 8:20:56 AM

Whether or not it's a good strategy, duplicity is inappropriate—particularly so when it comes from an academic. Questions of Prof. Barnett's larger trends in advocacy aside, I think Prof. Hills' points about the "Bill of Federalism" are well taken: it's dishonest (whether knowingly or unknowingly) to promote federal government guaranteed substantive rights under the label "Federalism." Maybe it's effective, maybe it's not, but either way it's wrong.

Posted by: Andrew MacKie-Mason | May 31, 2011 1:57:44 AM


I don't think I understand the criteria for success or failure that you have in mind. Is it judicial rulings? Judicial rulings from a certain set of judges? And who are the "libertarian" judges that we can contrast with the "non-libertarian" judges? And what are the alternative strategies that you think would be more successful? Strategic choices are relative: A good or bad strategy is relative to the likely success of an alternative. Can you articulate an alternative argument that you think libertarians should be making that would have worked, but that they're not making because they are too busy with federalism arguments?

Posted by: Orin Kerr | May 30, 2011 11:43:21 PM

Orin, I agree that libertarians do exactly what you say: They purport to press arguments about federalism when those arguments serve libertarian goals. But, of course, this is precisely why such arguments are not really about federalism -- a point that reasonably intelligent onlookers can see, making such opportunism practically pointless as well as theoretically otiose. In what sense is this "a pretty good strategy"? Where exactly has it succeeded? Can you identify a single non-libertarian judge who has been persuaded or fooled by this charade?

I think that Randy's arguments do not descend to this level of silliness. He tries to stick to his federalist principles when, say, opposing H.R. 5, because he understands that the rhetorical force of his federalism arguments will be diluted considerably by following your "strategy" of opportunism. But sometimes he slips up. I take his "Bill of Federalism" to be such a case.

Posted by: Rick Hills | May 30, 2011 11:04:30 PM


If your argument is that some libertarians make federalism arguments when they really have libertarian goals, I don't disagree. And if you want to make judgments about their credibility based on that, you're certainly free to do so.

At the same time, federalism manifests itself in lots of different ways, and libertarians generally press it in contexts in which it serves libertarian ends. In those settings, I think it's a pretty good strategy. It is of course true that some contexts in which federalism does NOT serve libertarian ends, but in those contexts libertarians generally don't press the argument.

Posted by: Orin Kerr | May 30, 2011 9:26:44 PM

Rick -- One more example: The EU, which for most of the 20th century pushed Europe in a deregulatory direction compared with the more dirigiste policies of national governments.

Posted by: D.Schleicher | May 30, 2011 8:34:19 PM

Orin writes:

[A]s a practical matter, stopping the federal government from doing certain things will mean stopping governments generally from doing them.

I think, Orin, that this statement is incorrect. In fact, it takes government to stop government: By weakening the federal government, one also weakens the federal government's power to eliminate protectionist or simply inefficient state regulations that interfere with a national market. National law, after all, can be importantly deregulatory. Consider, for instance, the Fair Housing Act's attack on local exclusionary zoning or the Federal Trade Commission's efforts to eliminate protectionist occupational licensing. This is why 19th century advocates of a free national internal market -- so-called "Liberal Republicans" like Charles Francis Adams, Jr. -- were all nationalists. Federal regimes like India's tend to remain statist precisely because the national government is too weak or beholden to subnational politicians to root out such obstructions to internal free trade.

In any case, the insincere advocacy of subnational democracy by those who prefer markets tends to undermine the credibility of the advocates.

Posted by: Rick Hills | May 30, 2011 7:33:49 PM


I appreciate the response, but I believe Randy is pretty aware of the difference between federalism arguments and libertarian arguments. See, for example, his essay, "Is Limited Government Possible?," available here:

As for your point about libertarians generally, I think it's a sensible move for libertarians who want to make constitutional arguments that advance libertarianism to focus in significant part on federalism arguments. First, as a practical matter, stopping the federal government from doing certain things will mean stopping governments generally from doing them. Second, federalism arguments have a wide political appeal and have strong constitutional footing.

Posted by: Orin Kerr | May 30, 2011 5:13:55 PM

I think that the disclosure buried in the preamble's small print is swamped by Randy's own billing of his proposal as centrally about federalism. His op-ed describes the proposal as "[a] detailed proposal to redress the imbalance between state and federal power," and the title he chose is a "Bill of Federalism," not "A Bill of Federalism & Individual Rights." So I guess I do not think that Randy "is being pretty clear that his goals are both limited federal power and limited government generally."

But I should add that I do not think that Randy is being deliberately duplicitous. I just think that libertarians are basically confused about the relationship between federalism and libertarianism. They persistently confuse the former with the latter, making what I think are weak arguments that the former will advance the latter. It is a small step to make the error of arguing that the latter somehow constitutes an instance of the former.

Posted by: Rick Hills | May 30, 2011 4:43:33 PM


This is unfair to Randy, I think. His "Bill of Federalism" does not purport to only be about federal versus state power. The preamble says that its goal is "[t]o restore a proper balance between the powers of Congress and those of the several States, and to prevent the denial or disparagement of the rights retained by the people [protected by the Ninth Amendment]." I think he is being pretty clear that his goals are both limited federal power and limited government generally.

More broadly, I believe Randy's own scholarship is unusally clear about his ideal constitutional system. Perhaps the most accessible introduction is through a book review such as this one:

Posted by: Orin Kerr | May 30, 2011 4:33:05 PM

Well, bravo for Randy’s op-ed, which I heartily endorse. But this opposition to H.R. 5 does not explain why Randy presses in his "Bill of Federalism" for a national right to freedom of contract under the guise of supporting federalism. So, at least as far as the "Bill of Federalism" is concerned, the cynics remain unanswered.

I had thought -- indeed, had hoped -- that someone would tell me that Randy's proposed Amendments #5 and #9 would not apply to state governments (despite their text, which is unqualified by any limited application to Congress or the feds).

Posted by: Rick Hills | May 30, 2011 3:10:10 PM

The cynics would be wrong. If that's all Randy was doing, he wouldn't have written that the corporate side's favorite bill, H.R. 5, is unconstitutional. That bill is super-tort reform for all health care lawsuits and one of the top priorities of the U.S. Chamber. But he destroyed it in one op-ed in the Washington Examiner (don't have URL handy, Google it) and accused Republicans who support it of being "fair-weather federalists." Do you realize how counter that runs to current conservative orthodoxy, which embraces federal tort reform? No, Randy is a true Constitutionalist. So, by the way, is Rob Natelson, who also slammed H.R. 5.

Posted by: Andrew Cochran | May 30, 2011 3:01:23 PM

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