Fred Thompson on Federalism and Why He is Wrong

Possible presidential candidate Fred Thompson has a nice piece up on Townhall.com about Federalism. In his piece he talks about some of the reasons why we have federalism and how federalism gets abandoned by people on both sides of the aisle when it suits them, in context of a bill to create a federal "Good Samaritan" law.

Everyone in Washington embraces Federalism until it comes to someone's pet project designed to appeal to the voters. Then, oftentimes, even the most ardent Federalist throws in with the "Washington solution" crowd. I fought this for eight years in the Senate. I remember one vote (I believe it was 99 to one) when mine was the only vote cast for Federalism. The bill would have created a federal good Samaritan law.

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This is traditionally state law stuff. Is this really something the federal government should involve itself in?

I thought not, but even some of my conservative colleagues (as well as writers) get caught up in the desire to federalize an issue if they could help a "good guy" or stick it to a "bad guy." This may be a desirable goal in the abstract but I don't think our Founding Fathers had this in mind. Adhering to basic principles that have served our country well is much too important. That's why I suggested to Mr. Ponnuru that if conservatives use Federalism as a tool with which to reward our friends and strike our enemies, instead of treating it as a valued principle, we are doing a disservice to our country -- as well as to the cause of conservatism.

Thompson even threw out the "laboratories of democracy" line that the states serve as incubators of ideas. But Thompson is wrong about why the Founders wanted a federal system. Thompson starts accurately but ends up wrong.

Our government, under our Constitution, was established upon the principles of Federalism -- that the federal government would have limited enumerated powers and the rest would be left to the states. It not only prevented tyranny, it just made good sense. States become laboratories for democracy and experiment with different kinds of laws.

The Founders did have an innate fear of tyranny, but the federal system is as much an accident of the times as it is a design of a group of brilliant men.

First, a federal system with a great deal of the governmental powers reserved to the states or the People (Read the Tenth Amendment, which admittedly came later), appeased the state sovereignty crowd present at Philadelphia. The Framers gathered at what is now Independence Hall under a charge to improve the Articles of Confederation, not, as it turned out, to create a new government. As a result, some of the Founders made sure to protect the rights of their states in the new system, particularly the small states, led in part by Roger Sherman of Connecticut. The protection of the individual state interests is at the core of our federal system.

Second, a federal system did provide for a means of checking the tyranny of a national government. We do have a national government, believe it or not, of delegated and ennumerated powers. That the powers have extended beyond what the Framers had envisioned surely cause them to roll over in their graves. But that is a function of a system the Framers did envision, the ability for the government to grow in times of need, but their hope for the government to revert to a limited role in other times clearly has not been the case.

Third, the federal system with more power given to the states is a result of the Framers believe in government being closer to the people. Remember, at the time of the ratification, only the House of Representatives was directly elected by the people. But the state legislatures were elected by the people and they in turn selected Senators and of course the Electoral College actually elects the president. State governments are local and at that time, individual voters were more likely to know their state representative than their federal representative, becuase they were more likely to see their state representative in everyday life, or at least more regularly.

Fourth, the American federal system was designed at a time when interstate travel was not only long in terms of time, but outright dangerous. Before traveling to Congress, representatives regularly updated their will and settled their affairs before leaving. Communications were, by today's standards, painfully slow. A federal government, left unchecked by state power, would be able to act without a chance for the people to respond in the manner we experience today. An act by Congress could be passed and it might be months before all of America knew about it.

While states serve as laboratories of democracy, it is not why the Framers created the federal system, the "research" function is a by-product of the modern age, not an intention of the framers. While it may seem like a quibble with Sen. Thompson, we should be more forthright about federalism. However, like Sen. Thompson, far too many people in Washington abandon federalism when it suits and embrace it when it advances their agenda. Principaled federalism is about as ancient as Ben Franklin and, currently, as dead.