Matt Rinaldi, James Madison, and the issue of liberty vs. local control

In “Liberty trumps local control” Representative Matt Rinaldi (from Irving) argues for limits on local control. The article is part of the Texas Tribune‘s “TribTalk” series that lets readers hear ideas directly from their sources. This is a great series because it brings readers directly into important debates. I appreciate Rinaldi taking the time to thoughtfully spell out the case for his bill (HB 1939) that would prohibit cities from banning plastic bags. He raises important issues and draws on important sources. However, I have to point out some reservations with his argument.

James MadisonRep. Rinaldi’s argument is relatively straight-forward: freedom is more important than local control. Rinaldi’s acknowledges that Republicans generally argue that decisions should be made as close to home as possible. However, he cites Madison in Federalist #10 to back his claim that local government pose bigger risk of creating laws that infringe on individual rights. Madison’s argument, sometimes labeled “Madisonian enlargement,” is that the way of containing the “violence of faction.” Madison argues that we cannot eliminate the sources of faction, but we can create a political system that controls the power of factions and prevents them from becoming the kind of overbearing majority that threatens the rights of a minority.

For Madison, smallness of a community contains within it the seeds of an oppressive majority:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.

Thirteen statesMadisonian enlargement is the idea that a larger society is more diverse and the factions more dispersed. According to Madison, if you expand the geographic scope of government “you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” The size and diversity of a representative democracy actually helps control special interests.

It seems fair to me to point out that Madison is using Federalist #10 to point out that the advantages he described as “enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it.” The fact that Madison is making a case for federal power does not automatically mean that Rinaldi’s application of the argument to states over local governments is inappropriate. It does suggest that the argument is complicated.

Rep. Rinaldi is offering up a kind of Goldilocks argument about the roles of states. The states are neither too hot nor too cold–they’re just right. The national government is just too darn big. The local constituency is just too darn small. In this regard, Rinaldi seems to be a part of a tradition in American politics of officials thinking that the best place to entrust power is where they are sitting. Jefferson had his doubts about the federal government and the presidency until he moved into the White House.

There are a couple of problems with Rep. Rinaldi’s argument. First, he just might be putting this faith in the wrong level of government. While Madison was concerned about the impact of “factions” on localized government, he would likely find little confidence in a legislature currently feasting on food and beverage provided by lobbyists. In fact, it would be hard to find anywhere the mischief of faction is more enthusiastically practiced professionally than around the Texas legislature in session. A state the size of Texas might dilute the mischief of some factions. At the same time, the role of professional lobbying focuses the role of special interests in a way that produces its own problems. Also, it’s not clear to me that Madison would necessarily be concerned about a community the size of Austin (population about 885,000). One of the reasons why Madison addressed the issue of the size of the nation is that some people at the time doubted that a country the size of the proposed United States (population about 3 million) could be governed.

Ban the bag logoSecond, Rinaldi is right to worry about the protection of constitutional rights. However, his argument implies that the state legislature is the best remedy to the violation of such rights. The article itself mentions several court cases where the judicial branch stepped in to protect constitutional rights. The courts seem more than willing to engage on these issues.

Finally, I have doubt about putting Austin’s ban on plastic bags in the same category as state bans on black students enrolling in public schools. Rep. Rinaldi acknowledges this but still tries to claim equal concern because bag bans, red-light cameras, and similar local ordinances “implicate important contractual and private property rights that the state has a duty to protect.” Such bans do relate to contractual and/or property rights. The problem with this argument is that pretty much everything government does at the federal, state, or local level might involve such concerns. So, the argument the local governments should only be able to act independently of the state when it does not involve businesses or private property would leave no authority at the local level.

Ultimately, it seems that liberals and conservatives agree that local governments should be empowered to make decisions–unless they make decisions that they disagree with. They may not cite the same issues, but they each see some exceptions to the case for local control.