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.

Who gets the federal dollars?

I came across this interesting analysis of federal spending vs tax collection by state (“America’s fiscal union: The red and the black” while working on the chapter on fiscal policy. It has been very hard to find much in-depth analysis on the topic.

The report does break down the ratio by state so that you can look over the results in more details. However, it’s hard to do much serious analysis of the data since it’s not clear exactly what they count as federal spending.

The Tax Foundation did put together a study based on 2004. I’d love to find something more current or comprehensive.

The truth about states’ rights

Rick Perry stirred up a debate in the Republican party when he told reporters that he did object to New York legalizing gay marriage since this was a matter was best left to the states.

Gary Bauer, president of American Values, expressed outrage. A couple of quotes are revealing.

The 10th Amendment and states’ rights is very important to conservatives, but it’s not our highest value.”

“There are some things so fundamentally wrong that we have not left those things up to the states.”

Bauer and his conservative allies are embracing the principle that most Americans practice: States rights matter–unless something matters more.

Both liberals and conservatives are willing to put aside states’ rights to pursue higher values or right things that are fundamentally wrong. Perry’s firm stance for the Tenth Amendment illustrates the lack of commitment to the Tenth Amendment and should open an interesting debate on where states’ rights stands with Americans.

**Update**

It turns out that Perry is a little more flexible on states’ rights than I thought. He would support overriding the Tenth Amendment with constitutional amendments that took away states’ rights to define marriage or permit abortions.

Texas as a “sanctuary state”

The Texas Tribune has a good article (“Is Texas a Sanctuary State?“) on the debate over the “sanctuary” label that has been attached to Houston during the current governor’s race. The article helps shed light on the various claims that we’re going to hear repeated throughout the 2010 campaign. I thought it was an especially interesting article because it looked into why state and local law enforcement have rules about asking about immigration status. The story includes links to Houston police and Texas Department of Public Safety policies on the issue.

The article raises a couple of interesting topics for discussion. One issue is the proper role of state and local officials in immigration policy. Another issue centers on the policies and priorities of local law enforcement officials

Gohmert calls for saving the Senate… from voters?

The 17th Amendment

The 17th Amendment

Today, unhappy over the passage of federal health care reform, Congressman Louie Gohmert (Tyler) called for a constitutional amendment returning the choice of U.S. Senators to state legislature. In a press release from Congressman Gohmert’s web site, he spells out his reasons:

Ever since the safeguard of State legislatures electing U.S. Senators was removed by the 17th Amendment in 1913, there has been no check or balance on the Federal power grab for the last 97 years.

Gohmert makes an interesting argument for bringing state-oriented representation into the U.S. Senate. According to this view the states are important political units that need more specific representation. To take their proper place in our system of federalism, the governments of the states need representation selected by the governments of the states.

The general “states rights” argument is common. However, Gohmert’s argument makes the unusual leap of suggesting that legislators are better equipped to choose those who will look after the interest of the states. To me, the most puzzling aspects of Gohmert’s claim is the assumption that senators chosen by state legislators would be any different. Anyone who has read the accounts of how Nineteenth century state legislators chose senators or members of the electoral college must have some doubts about Gohmert’s claim.

Gohmert seems to base his argument on the assumption that the rise of federal power coincides with the ratification of the Seventeenth Amendment made election of senators by voters mandatory (it’s worth noting that before this amendment most state were already using elections). Unlike Gohmert, I don’t  believe that America suffered greatly in the Twentieth century. Gohmert sees rising federal power, I tend to notice that the last century saw the rise of America as a global economic, political, and military leader. Along the way, we addressed critical failures on racial and gender equality. I’m always puzzled when people who claim to believe that America is the greatest country in the world so adamantly resent the politics that made it so. Our political system has its faults, but there’s not much arguing that something went right.

Gohmert’s appeal is a lost cause. The argument that voters are not wise enough to look after the interests of their states doesn’t make the best campaign slogan. And, given the reputation of the Texas legislature, telling Texas voters that they’re less qualified that their legislators isn’t a very flattering comparison.

Railing against federal dollars for political fun and profit

Kate Alexander of the Austin-American Statesman put together a very good story on the politics of spending federal dollars. Currently, we have Democrats controlling federal dollars and Republicans complaining after federal intrusion into state politics. However, the story makes clear that both sides have played this game and that in the 1980s it was Democrats complaining about the strings attached to federal transportation dollars by Ronald Reagan. At the time Texas Senator Chet Edwards railed against federal dollars manipulated by the hands of Republican administration. Now that Democrats are holding the federal dollars, Edwards is complaining much less.

Both parties look hypocritical because they complain about these policies and then turn around and use federal dollars to advance their own agendas. However, it’s not that simple. Consider the dilemma of a conservative Republican freshly elected to Congress in the 1990s. You certainly could always vote in favor of “states rights” and remove any strings from federal dollars. However, what if some of those federal dollars would be spent on abortions? Which is more important to you: protecting the autonomy of state policy or the life of unborn children? What would the voters who elected you favor?

Federal dollars are a constant in state politics. As the story illustrates, federal funds as a share of the Texas budget have been pretty steady over the last decade. Rick Perry is acting as if the role of the federal government has changed dramatically since Obama’s inauguration. However,  the changes are relatively small and reflect a trend found in both Republican and Democratic administrations. The practice of complaining about federal power until federal power is in your own hands goes back to Thomas Jefferson.

We generally label the current status of relation between the federal and state governments as “cooperative federalism.” However, you can certainly make the case that the relationship is much more coercive than cooperative. The folly of the Democrats is denying the pressure the federal dollars put on states to comply. The folly of the Republicans is acting that this is new.

Student don’t relish getting to the section of the course on federalism. However, the sharing of power between federal and state government is (once again) turning into a hot issue in the campaign. As usual, much of the heat disguises reality and lead us away from a productive discussion. As Alexander story make clear, the mixing of federal dollars is important beyond the drama of the current campaign season. Regardless of who is in Washington, we’re going to see federal dollars going into state accounts and voters deserve an intelligent discussion of the tradeoffs.