Tuesday, June 21, 2011

Herman Cain Is Wrong on Federalism

By Tim Dunkin


                In a recent interview, the former CEO of Godfather's Pizza and current Republican presidential contender Herman Cain was asked about the issue of gun control.  The first part of his answer was great – he stated that he opposed gun control, supported the 2nd amendment right to keep and bear arms, and so forth.  However, the second part of his answer to this question bothered me quite a bit.  Cain said that he believes that while the federal government cannot infringe on our 2nd amendment rights, the states nevertheless have the right to do so.  Essentially, the states can regulate and even ban certain types of firearms if they so choose.  While I appreciate Cain's appeal to federalism – an oft-forgotten and ignored principle in our government today – I find his application of the principle in this case to be incorrect.


                Now, I like Herman Cain.  Out of the many candidates stepping forward to throw their hats into the ring for a chance to unseat the Worst President Ever in November 2012, Herman Cain has been pretty high on my list.  Obviously he, like every other candidate, has some imperfections.  However, he is unapologetically pro-life and pro-marriage, he's solid on the fiscal issues, and he genuinely seems to look to the Constitution for the answers to political questions, unlike the vast majority of our politicians today.  Up to this point, what he's been saying has been great.


                However, I think he's wrong on his understanding of federalism in this particular instance. 


                I'm a big proponent of federalism and states' rights.  I take the 10th amendment to our Constitution seriously.  The fact that our government has not had a similar view for over a century is largely the reason why we're where we're at, politically speaking.  However, a proper understanding of federalism involves a right comprehension of both the 10th amendment, and the overall thrust and context of the Constitution as a whole.  In other words, we can't decontextualize that amendment, ripping it out of the document and applying it without reference to the spirit and text of the rest of the Constitution.


                The balance of powers between the states and the federal government, the division of functions that are reserved to each, goes beyond Article I, Section 8.  This is where anti-incorporationists (whose arguments Cain was essentially making) fail in their ideas about federalism.  What we need to understand is that the very fact that the Bill of Rights was included as part of the federal Constitution – ten amendments that were made from the very start for the purpose of smoothing its eventual ratification – works to federalize the rights that are affirmed therein.  As the wording of the 9th amendment suggests (which I have previously shown to be referring to the prior eight amendments in the Bill of Rights), the rights affirmed are held by "the people."  This is not a reference to the states, but to the body of the citizenry as a whole – a group whom the Founders understood to be as much citizens of the United States, as a federation, as they were of their particular states.  The rights affirmed by the Bill of Rights are held by every citizen of the United States. 


At this point, the Supremacy Clause of the Constitution comes into play, whereby no state is free to step outside of its constitutionally-provided sphere of power and overturn a properly-applied federal law.  For instance, no state is free to step in and start making its own patent law that countermands federal law.  No state is free to create a competing currency, or start granting its own terms and conditions to foreign emissaries.  Likewise, no state is free to overturn the federal protections afforded by the Bill of Rights.  Because that Bill specifically affirms these rights to "the people" apart from their states, the states therefore, per federalism properly understood, cannot overturn these rights.  Or put another way, our fundamental liberties are not open to nullification or interdiction (principles which, in other areas where the federal government is overstepping its boundaries, I would support).


When you think about it, it is patently absurd to propose that it be any other way.  What sense does it make to say that we're going to forbid a distant federal government in Washington, D.C. from abrogating our 1st amendment or 2nd amendment or 4th amendment rights, but then turn around and allow a state government to overturn these liberties with impunity?  Is it okay for New York, for instance, to have some of the most freedom-unfriendly, anti-gun laws in the country, simply because it's a state, and not the federal government?  What about all the states (and this is most all of them) that have basically buried our liberty to be free from unreasonable searches and seizures under an avalanche of warrantless, no-knock Gestapo-type SWAT raids under the guise of "fighting the war on drugs"?  What about Indiana's Supreme Court deciding that people shouldn't bother trying to actually exercise their 4th amendment liberties?  How does any of this serve the cause and principle of liberty that this country was founded upon, and which was the whole reason the Bill of Rights was added to the Constitution?  How do the citizens of New York or Indiana or any other state actually and effectually enjoy or use their natural liberties?


Yes, the federal government may be overreaching in what it does in many, many instances – TSA groping, idiotic BATFE persecution of gun traders, and so forth – but this does not justify states in making the same sort of overreaches.  It just means that BOTH spheres of government need to be restrained and reduced back to their proper roles.  All the same, the implicit anti-incorporationist argument that the federal government can be restrained from violating our rights, but that the states are perfectly free to do so, is ridiculous.


As I pointed out in a previous article, the constitutional mandate that the states maintain a republican form of government (Art. IV, Sect. 4) extends far beyond the mere matter of organization and type.  Indeed, that mandate has a direct bearing on this issue.  The Founders understood that a republic was more than just a particular mode of government.  It was more than just a division of powers and a collection of popularly-elected magistrative positions.  A republic, as the Founders understood it, was itself supposed to be a bulwark of liberty.  For example, at two different points, Jefferson observed, 


"From the moment that to preserve our rights a change of government became necessary, no doubt could be entertained that a republican form was most consonant with reason, with right, with the freedom of man, and with the character and situation of our fellow citizens." (Reply to the Virginia Legislature, 1809)

"To establish republican government, it is necessary to effect a constitution in which the will of the nation shall have an organized control over the actions of its government, and its citizens a regular protection against its oppressions." (Letter to Lafayette, 1816)


To the extent that a political system does not protect its citizens against its own oppressions, it was therefore not a republic, no matter what its style and political order were.  In other words, for a political system to qualify as a republic, it had to do more than just let the citizens elect their leaders or divide powers up between differing spheres of government – it had to do things like protect the security of the people in their possessions and property, to refrain from hindering them in their exercise of their personal liberties, and so forth. 


This all matters for the issue at hand because if the states do not respect the natural liberties of the people (again, using the language of the 9th amendment), then they cease to qualify as "republican" governments.  The citizens of those states still may elect their governors and legislators, they may have three branches of government, but they are not republics anymore.  This fact, and the constitutional mandate to maintain such a type of government, effectively federalizes the respect for our natural, inherent liberties as well, and serves to (theoretically, at least) positively forbid states from violating those liberties.


What this all means is that in a truly constitutional, federal system, ALL government is supposed to be restrained from infringing upon the inherent rights of the people.  Not just the federal government, but the states as well.  New York should not be able to impose onerous, anti-gun regulations on its citizens.  If people in New York want to own a gun, they should be free to do so, and if they don't want to, well, nobody is making them buy one.  The only place where the state should become involved is when somebody who owns a gun then proceeds to use it to harm another citizen – through crime, negligence, etc.  No harm – no involvement.  Likewise, police in the state of Indiana should not be able to perform random, house-to-house searches without warrant and probable cause on the grounds of nebulous "public safety" concerns.  If they want to search a home, then they need to present credible evidence to a disinterested magistrate and get a warrant that says what they're looking for and where they can search. 


In short, if we're going to affirm the principle of federalism, we need to do so rightly, as that principle is expressed throughout the Constitution.  Federalism is not a buzzword.  Federalism also does not hand ALL power to the states.  It is a framework within which what should be local is kept local, and what should be federative is kept federative.  And, as we see from the Constitution, as well as what common sense should tell us about maintaining our liberties, the possession and enjoyment of our natural liberties is common to all citizens of the United States, regardless of state, and is not up for annulment by any state.


So, in this case, I'm going to have to heartily disagree with Mr. Cain.  While I like and respect him, and have been generally pleased with what I've seen and heard of him to date, I oppose his particular (and I would say peculiar) ideas about federalism as he applies them here.  Our rights do not exist on the sufferance of any state, just as they do not exist on the sufferance of the federal government.  The proper role of government at both the state and the federal levels would be to refrain from infringing