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Federalism and individual lierty.pdf

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University of Toronto Scarborough
Political Science
Ted Petit

Const Polit Econ (2010) 21:101118 DOI 10.1007/s10602-008-9075-z ORIGINAL PAPER Federalism and individual liberty C. Mantzavinos Published online: 27 December 2008 Springer Science+Business Media, LLC 2008 Abstract This paper explores the relationship between federalism and individual liberty. It is shown that a complete treatment of the relationship between federalism and individual liberty should consider two countervailing effects. On the one hand, a federalist structure enhances individual liberty by enlarging the choice set of the citizens. On the other hand, however, a federalist system leads to institutional diversity, a fact that per se leads to higher exit costs, which a citizen must bear if he or she decides to change jurisdictions. This effect on individual liberty is a negative one, since a consequence of every increase in the exit costs is a decrease of indi- vidual liberty. The optimum range of diversity of jurisdictions is shown to lie where the two effects counterbalance each other. Keywords Federalism Individual liberty Exit costs JEL Classication H77 1 Introduction Federalism as a constitutional structure aims at splitting political power among federal, state and local governments, so that the probability that a single majority can impose its will on all levels of government is ruled out. As Madison put it in his classical formulation: In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and usurpations are guarded against by a division of the government into distinct and separate departments. In the compound government of America, the power surrendered by the people is rst divided between two distinct governments, and then the portion C. Mantzavinos (&) Witten/Herdecke University, Alfred Herrhausen Str. 50, 58448 Witten, Germany e-mail: [email protected] 123 102 C. Mantzavinos allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself (The Federalist Papers 1961, No. 51, Madison, p. 323). Federalism as a constitutional structure provides a system of checks and balances which in the long-run promotes the liberty of individuals of the respective polity. Federalism is a constitutionally anchored constraint to political power and to the possibility of curtailing individual liberty. Hence, a main argument for federalism is that it secures individual liberty. Though the vital importance of federalism for securing individual liberty is 1 broadly acknowledged, the exact relationship between the two has been insuf- ciently analyzed. The theories of dual, cooperative, and competitive federalism, though quite fully developed, have not provided any coherent view of the mechanism for how federalism inuences individual liberty. It is mainly other aspects that are regularly discussed (e.g., Karmis and Norman 2005), like the relationship between federalism and multiculturalism, democracy or scal policies; but there is literally no work highlighting the mechanism of how a federalist system affects individual liberty. In this paper, I shall provide a description of the mechanism that links federalism and individual liberty, paying due attention to the most important effects of a federalist structure on the liberty of the citizens. Much of the literature on the issue is of a normative avor, trying to answer the question how the political system ought to react so that individual preferences can be best satised. I am going to proceed in a positive way. My problem is how a federal system will, under certain plausible assumptions, affect the liberty of the individual; in other words, I want to investigate what will be the reaction of the constituency to a federalist political system and how this reaction will inuence the individual liberty. Liberal thinkers (in the original, European sense of the term) are concerned with the problem of responsiveness; my concern in this article is to show the complex inuence on the individual liberty that emerges by allowing multiple governments to offer diverse institutional arrangements to citizens. 2 Arguments that link federalism to individual liberty There is a series of arguments that link federalism to individual liberty, some of them already contained in the Federalist Papers and some of them suggested in contemporary discussions. The core issue is what Riker (1964) has called the fundamental dilemma of federalism, i.e., how to have a central government that is strong enough to provide a check on the lower level governments, but is not so strong that it overwhelms the states. The rst way that lower level governments can 1 See the remark of Elazar (1987, p. 91): The central interest of true federalism in all its species is liberty. 2 See the remark of Chemerinsky (2001, p. 929): The point is that none of the traditional justications for federalism explain why it is likely to enhance liberty nor is it ever explained why federalism is needed to secure liberty. 123 Federalism and individual liberty 103 check the central government is laid out in Federalist Nr. 24, 25, and 46: the greater loyalty that citizens would tend to feel to their states than to the federal center would tend to check any move to despotism by the center, in extreme cases even through armed resistance. A second way was already proposed by de Montesquieu (1748/ 1989, p. 132): If a sedition occurs in one of the members of the confederation, the others can pacify it. If some abuses are introduced somewhere, they are corrected by the healthy parts. According to this argument it is the other lower level governments that can check any move towards abuse by a lower level government, without the central government engaging in any correction. The third way is described by the socalled republican guarantee clause of the US Constitution (Article IV, Sect. 4): The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. In other words liberty is protected by means of a federal check on the lower level governments. Levy (2007, p. 309), presenting the three arguments above, speaks of mechanisms by which the founding generation imagined that federalism might enhance liberty. However, though these arguments are important and probably valid, it is a real stretch to speak of mechanisms in this context. The notion of mechanism is at the center stage of the discussions of casuality and explanation in the philosophy of science, and it is increasingly acknowledged that a scientic explanation of a phenomenon can only be provided if a causal mechanism is specied (Machamer et al. 2000, P. Machamer, 2008, unpublished manuscript, Knight 2009). The links between federalism and liberty sketched above are nothing more than the rst argumentative steps towards the construction of a more comprehensive mechanism illuminating the relationship yet to be developed. The same is true for the contemporary discussions of federalism. The most frequently repeated argument in favor of federalism is that states or local governments are closer to the people and thus more likely to be responsive to their needs. Vaubel (1995) offers, for example, two justications for a federalist structure: (1) that regional preferences differ; and (2) that competition among governments protects the freedom of the individual. His argument is representative for the standard perspective that the greater responsiveness to regional preferences is ipso facto a guarantee for liberty. Shapiro (1995) also suggests that in principle the smaller the area governed, the more responsive the government will be to the preferences of the constituency, and thus the better it will be able to protect 3 individual liberty. However, as Chemerinsky (2001, p. 927) sharply observes: [T]his premise is highly questionable; it assumes that popular sentiment is likely to be rights progressive rather than rights regressive. To the extent that voters at the state and local level prefer rights regressive legislationor more likely a rule that abuses a particular minority groupgreater responsiveness increases the dangers of government tyranny. In other words, the substantive result of decreasing tyranny 3 See Shapiro (1995, p. 91f.): [O]ne of the stronger arguments for a decentralized political structure is that, to the extent that the electorate is small, and elected representatives are thus more immediately accountable to individuals and their concerns, government is brought closer to the people, and democratic ideals are more fully realized. 123 104 C. Mantzavinos will not always be best achieved by the process approach of maximizing electoral responsiveness; indeed, the reverse might well be the result. Buchanan (1995, p. 259), for his part, suggests that a coherent classical liberal must be generally supportive of federal political structures, because any division of authority must, necessarily, tend to limit the potential range of political coercion. In his theory of competitive federalism, he elaborates on the prospects for exit as constraints on political control over the individual and introduces, thus, a very
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