Beating Tribalism with Federalism

Show Date
November 25, 2018
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Note: The following is from the introduction of my new book Power to the States: How Federalism 2.0 Can Make America Great Again. Federalism 2.0 is about experimentation with different policies in the states, and robust competition among them for citizens’ tax dollars. It restores powers to the states and to the people, as the founders originally intended.

Featuring: Professor Richard Epstein, Honorable Clint Bolick, Senator James L. Buckley, Travis Brown, Cliff Maloney, Joe Mathews, William Watkins, Jr., Robert Alt


This week, record numbers of Americans are headed to the polls to vote in what they believe to be a particularly consequential election.

Commentators worry about the “Balkanization” of America. East Coast liberals live in their urban enclaves; Republicans in suburban and rural areas. Conservatives absorb conservative media; progressives, progressive media. Many yearn for the civility of the “good old days.”

In fact, we have had incredibly brutal political campaigns since the founders’ era. The most bitter, insulting, and no-holds-barred presidential campaign in American history was the first one — the campaign of 1800, between Jefferson and Adams. So, I am not so sure that we have much to say for the “good old days.”

There have always been factions in our country, and there always will be. People are different, and many do not understand the life choices of others. These factions are not unhealthy. Different people have different points of view and they tend to group together. They live together, hang out together, and read the same papers. That’s natural. That is the exercise of choice. We have never had a country of people who just existed to be persuaded, and we never will.

We are entering a worrisome period of American politics. The divisions are so intense that I have never been so concerned about the country and system of government that I love. I’m usually optimistic. Now it’s hard to find optimism given the level of tribalism.

There is a clear relationship between the feeling of powerlessness and the anger toward the “other side.” The centralized and remote power of the Federal Government makes it more important for “our team” to have that power, since our lack of political control over Washington subjugates “us” to “their” will. Under the federalist system which the founders gave us, with most of the political power residing locally (or at least far closer to us than if it rested in distant Washington) we would feel, and we would be, far more in control.

With local control, Federal power would not matter all that much. “No taxation without representation” drove us to revolution. We now cry out “no political control with representation.”

I cherish the founding principles of federalism and have painfully concluded that Washington has abandoned its limited but essential constitutional mission of protecting our rights to life, liberty, and pursuit of happiness. It now uses its power to limit our natural rights — allowing us to exercise them only under carefully controlled conditions. The transfer of power from local to remote evolved from a combination of ill-advised constitutional amendments, and some unfortunate Supreme Court cases. Madison explained it best: “The essence of Government is power; and power, lodged as it must in human hands, will ever be liable to abuse.”

Before we despair, we should remember that this apparent “bug” is really a feature of the founders’ plans. Progress isn’t supposed to come from the Federal Government. It comes from individuals who make their own lives better through effort and personal sacrifice.

Of course, somebody has to write the laws. Fortunately, states remain — as Justice Louis Brandeis suggested — the “laboratories of democracy,” giving citizens the ability to “vote with their feet” in search of more limited government and greater control over their lives. States like California and New York, which find themselves losing population because of bad policies, are slowly catching on.

The founders always intended that most power over citizens should reside in the states and cities. Thus, a Californian who opposes a “nanny state” government of high taxes, and wealth transfers, can move to Texas. With most political power held by a federal government, the choice (if you can call it that) would be move to another country. This is a much more significant decision than moving to Austin, Texas from San Francisco, California.

Happily, states are rediscovering their historic powers affirmed by the Ninth and 10th Amendments. We see this in areas of drug policy, criminal justice reform, school choice, eminent domain, and even immigration here in my home state of California. Washington is more remote and aloof to Americans than England was several centuries ago to the colonists. States are responding to the needs of their citizens exactly as the founders intended.

On my show, I have never promoted the misleading agenda of “states’ rights,” which has often been used to justify even greater violations of individual liberty than federal encroachments. After all, states have no rights; only people do. (The states surrendered the most important “right” they had when they ratified the ill-conceived 17th Amendment). Instead, I aim to show how most political powers promote the preservation of liberty when they are decentralized. That decentralization begins with the devolution from Federal Government to states and localities.

For many years, I financially supported libertarian or libertarian-leaning candidates for federal office, but never saw any results. No candidate nor any group of candidates can affect even a slight change in the federal power trajectory. It has been said that insanity is doing the same thing over and over again and expecting different results. My principles now prevent me from supporting any candidates for federal office or seeking any reform at the federal level. I have decided to put all of my efforts toward state and local candidates and issues. State legislatures have become testing grounds for sound governance, and libertarian ideals are on the rise.

In this short volume of edited transcripts, you’ll learn how libertarian ideas are winning across the country, thanks to the efforts of a small handful of think tanks, student activists, intellectuals, and politicians with a healthy understanding our “first principles”.

I try to use my show to provide a platform to those who are leveraging their own resources to make a maximum difference for liberty. The more we focus our attention on what can control, the more we will see real libertarian change. State-centric power gives us the opportunity to experiment with different political viewpoints. Once a single state successfully tests a policy change, other states will copy their success, or learn from their failure.

I do not object to Balkanization. I don’t care if a progressive never reads a conservative newspaper, nor do I aspire to change a progressive into a conservative. I love the fact that California is profoundly progressive, as is New York. I love that Texas is conservative. I don’t even aspire to make people nicer. I wish they were, but I don’t want to force it upon them. It is the use of force that is dangerous. Once you take away choices, people get angry — and sometimes violent — because a different lifestyle is being forced upon them.

When power solidifies in Washington D.C., there is a demonstrative erosion of freedom. When people feel freedom disappearing, they feel powerless. This brings out the worst in them. Having power in the states gives people freedom and choice. Not having a choice means not having freedom. Let me have a choice, and I will be perfectly content.


If we had fifty states — each truly experimenting with different political philosophies — I would not necessarily respect progressive voters in California or New York. Most importantly, New York politicians could not impose their political will on Iowans, or the reverse. There are few policies beyond those which protect our natural rights, which must or should be imposed nationally. We will not lose our nationhood with states dictating the speed limit, drinking age, minimum wage, healthcare policy and the like. When we need to be one nation, such as in time of war, soldiers from New York would still fight alongside soldiers from Iowa. They might not understand nor agree with each other’s politics, but there wouldn’t be any hatred because the guy from New York would not be imposing his will on the conservative from Iowa. It would be live and let live.

This, in short, is the new federalism — federalism 2.0. It is about experimentation with different policies in the states, and robust competition among them for citizens’ tax dollars. While it is not a panacea, it is what the founders envisioned. Rather than make America great again (again?), my goal is to make America America again.