Some years ago, Judge Douglas Ginsburg coined the phrase “a Constitution in exile” to describe those, like myself, who never reconciled themselves to the constitutional revolution of 1937, which made the world safe for the New Deal reforms that authorized the federal government to cartelize labor and agricultural markets and lots more. Fortunately, the opposition to these unwise social initiatives has not completely died away. Even so, these days, with the expanded role of government in labor, health, education, energy, and the environment, libertarians are on the political defensive.
It was therefore bracing to read my longtime friend Randy Barnett commend in the Wall Street Journal the recent spate of tax “tea parties” to protest the ever-expanding role of the federal government into all aspects of our economic and social life. The hard question, as Barnett notes, is how to convert these small protests into concrete social action.
Barnett is surely correct to note that the Supreme Court has thrown in the towel on any serious effort to scale back on Leviathan. Its anemic federalism decisions have let federal regulation devour virtually every useful activity. And its feeble defense of private property is unwisely limited to providing compensation—usually insufficient—for property that is physically taken for public use, broadly conceived. The most intrusive and ill-conceived regulatory proposals from the Obama administration will find few constitutional obstacles to overcome.
Faced with this situation, Barnett urges libertarians to ask the states to take on the task of limiting the scope of federal power. After all, one way to amend the Constitution is for the legislatures of two-thirds of the states to call for a constitutional convention whose amendments would in turn have to be ratified by three-fourths of the states.
States might undertake this initiative to escape the clutches of expensive federal mandates. State environmental protection agencies stonewalled, for example, when the federal EPA sought to dictate key land-use decisions, such as the kind of parking facilities in large cities, to control air pollution.
But the complex political economy of federal-state relations makes it a mistake to think that state legislatures will habitually rise up against federal power. Too often the same activist philosophies that animate meddlesome federal legislation are alive and well in the states. Indeed, federal programs often leave room for the states to do the federal government one level better, no questions asked.
Thus states are free to impose minimum wage levels higher than those mandated by the federal government. Some states tag-team their enforcement of clean water statutes with the federal government. Federal-state cooperation is as much a feature of modern regulatory life as is federalstate opposition.
No national constitutional convention can change these political dynamics. Indeed, my own heartfelt prayer is that no such convention will ever be called, lest statists of all stripes hijack the entire process to further dilute the now pitiful protections on both federalism and property rights. In today’s climate, libertarian delegates would at best be ineffectual spectators at such an open-ended gathering.
So, Mr. Pessimist, I will be asked, what would you do instead? There is no easy answer. So I use the only weapons that remain at our disposal: mere words. We have to point out the follies of the current trend to big government and seek to convince our fellow citizens that the current course of action is politically and economically unsustainable.
In this debate, we should not push hard any theme that insists on the smallest of small governments. Instead, we should urge a modest downscaling of political visions. No, we can’t afford to spend billions to control carbon dioxide from the tailpipes of new cars; no, we can’t afford to raise marginal tax rates for our most successful citizens from their present high levels; no, we can’t supply health care for all at the level Congress supplies it for its own members.
The sad truth is that libertarians of all stripes are everywhere on the defensive. It would be unfortunate if the politics of tea parties diverts attention from the primary task at hand—slowing down the ill-conceived initiatives that pour forth daily from the Obama administration.