In previous posts (here and here) I have discussed Nozick’s somewhat neglected libertarian “framework for utopia,” which he lays out in Part III of ASU. Very briefly, in a perfect world the minimal state would provide the institutional skeleton around which individuals and communities could construct their own preferred modes of living. So long as people join them voluntarily and are free to leave, such communities may be distinctly illiberal. The state would function to ensure that the various sub-units do not aggress against each other, and would safeguard each person’s right of exit.
Nozick is operating here in the realm of ideal theory, and accordingly does not attempt to thoroughly address various practical problems that would arise under his framework. See ASU, 329-31. For one thing, children do not voluntarily elect to live in a particular jurisdiction, but are born, socialized, and educated wherever their parents have decided to reside. Furthermore, exit from such communities will inevitably involve certain costs. Such facts might, in the real world, require a more interventionist state than anticipated by Nozick in his idealized setting. Apart from this, there may be certain group rules and practices that are so abhorrent to other communities, even if adopted on a consensual basis, that the latter may not wish to “share the same roof” with them, even symbolically.
Putting these complexities aside, Nozick’s idea has striking similarities to the federalism that the framers understood to be the essence of our constitution. “Federalism” is defined by my dictionary as “the distribution of power in an organization (as a government) between a central authority and the constituent units.” The founding fathers embraced this idea: all responsibilities not formally delegated to the federal government were to remain with the several states and ultimately repose in the people themselves (see the Ninth and Tenth Amendments to the U.S. Constitution). The remaining substantive guarantees set forth in the Bill of Rights originally applied only to the federal government.
Thus, we find Madison, in Federalist Papers 45, reassuring his readers that:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects…The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives of the people, and the internal order, improvement, and prosperity of the State.
Obviously, the framers deference to the authority of the various states was a political necessity given the radically different attitudes towards slavery held by the newly liberated colonies, but it also reflected a deep suspicion of centralized power generally. After all, the colonists had just violently cast off the yoke of the world’s most powerful government, one that had: imposed taxation without representation, greatly curtained the freedom of the press, conducted extrajudicial searches and seizures of private property, and various other outrages.
The framers, as ardent follows of Locke’s theory of natural rights, also intended that the states would zealously guard property rights and economic liberty generally. Thus, in Federalist Papers 10, we find Madison extolling the vast superiority of a republican form of government over democracy in just these terms:
It may be concluded that a pure democracy…can admit of no cure for the mischiefs of faction…a common passion or interest will, in almost every case, be felt by a majority of the whole…and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths (my emphasis).[1]
Of course, and to the great sorrow of libertarians, things did not turn out in the way intended by the framers. Despite all the anti-majoritarian roadblocks built into the constitution, the electorate could not resist the lure of the welfare/regulatory state, introduced by the New Deal, vastly expanded by LBJ’s Great Society programs, and extended recently by ObamaCare. This trend was only possible with the cooperation of the judicial branch.[2]
The Supreme Court’s interpretation of the “general welfare” and “commerce” clauses of the constitution has, since the New Deal, bestowed on the federal government virtually unlimited authority to enact social welfare schemes and economic regulations. See the seminal cases, Helvering v. Davis 301 U.S. 619 (1937) (upholding the constitutionality of the Social Security Act) and United States v. Carolene Products Co. 304 U.S. 144 (1938) (upholding the constitutionality of a federal ban on the interstate shipment of “filled milk”).
Worse still, the Court has treated economic liberty as the poor, unwanted stepchild of the rights family. It has almost uniformly applied the least rigorous standard of review–the so-called “rational basis test”–to laws and regulations affecting property, commerce and the workplace. As a consequence of our politics and constitutional jurisprudence, there is no escaping Leviathan; instead of fifty unique political/social/economic environments from which we might choose, one size fits all.
The concentration of power at the federal level and the resulting demise of a robust federalism constitutes a devastating blow to liberty. The central government’s entitlement and welfare programs, its vast regulatory apparatus, and the taxation required to support them, deprives all citizens of the ability to live within a political economy and social structure most congenial to their values. If, for example, the people of (say) Vermont, California or Massachusetts wish to live under some more authentic version of European democratic socialism, financed by a tax scheme that includes marginal rates of 75%, they should have the freedom to do so.[3]
But, by the same token, if the people of Texas, Utah or Arkansas desire to enjoy a system of laissez faire, with minimal taxes and a much greater reliance on non-coercive solutions to social ills, they should have this opportunity. Not only would such a framework dramatically enhance our freedom, but it would provide an answer to the question of which of the political/social systems on offer is most conducive to human flourishing. People would vote with their feet, and over time dysfunctional systems would implode, while the successful ones would thrive. People could then use this data to guide their own lifestyle choices.
Nozick wrote that “Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own version of the good life in the ideal community, but where no one can impose his own utopia upon others” (ASU, 312). Sounds a lot like federalism to my ears.
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[1] In the same essay, Madison noted that with respect to the apportionment of taxes, “there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling by which they overburden the inferior number is a shilling saved to their own pockets.”
[2] An excellent description of this abdication, written for the lay person, may be found in Damon Root’s recent book, Over-Ruled: The Long War for Control of the U.S. Supreme Court.
[3] Obviously, the sudden enactment of new, or the repeal of established, rules would work a great hardship on those who had elected to reside in a particular jurisdiction on the basis of the existing order. Therefore, in the interests of justice, states should either transition to new rules over an extended period of time, or grant exceptions to objectors.
