Posted by
Rogue Historian on Wednesday, April 25, 2007 3:11:03 AM
Potential presidential candidate Fred Thompson crafted an article that was mostly hailed by the Townhall community. http://www.townhall.com/columnists/FredThompson/2007/04/23/talking_about_federalism?page=full&trackbacks=true#commentAnchor I would like to differ with my conservative friends.
Thompson is preaching to the choir!
Most conservatives, judging by friends and bloggers, share Thompson's views on Federalism. Thompson is, by all accounts, a highly intelligent and successful man. The first luminary on the High Court to espouse the views repeated by Thompson was no slouch. Oliver Wendall Holmes, jr., crafted his seminal work, The Common Law, before he surpassed fourty. He was a battle-veteran of the Civil War and is credited by some with saving Abraham Lincoln's life. When the rather conspicuous Commander-in-Chief wandered onto a battlefield and into harm's way, Holmes convinced the erstwhile executive to take cover. Holmes served longer than any other Justice on the Court- over thirty years. He became a fountainhead of judicial deference- especially to states. It was Holmes who first articulated the notion that states should be left alone as political "laboratories." Thompson repeats this idea explicity in his article.
The idea that individual states should "compete" for taxpayers, in the same way that corporations compete for customers seems logical. The problem is, as Holmes himself stated,
"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."
From the first of twelve Lowell Lectures delivered by Oliver Wendell Holmes, Jr. on November 23, 1880, which were the basis for The Common Law.
If nothing else, the history of America demonstrates that States are more often on the wrong side of our most important controversies. The principal example is slavery, but there are more. The Constitution itself grew out of a need to finance our national security and delimit interference with private contracts. Alexander Hamilton, the first Secretary of the Treasury, and, according to the brilliant popular historian Ronald Chernow, the architect of our nation's economy, understood that the future of America lied in industrialization. States stood in the way of this trend. The Constitution clearly established a source of supreme law, binding on the states, or it did nothing at all. Even without the Civil War, in which more than half a million Americans died, state's rights doctrine has a tarnished history. Jim Crow Laws exemplified the extent to which Hamilton's co-author James Madison was correct, in Federalist 10, when he placed the hopes of liberty in the Federal government. Extend the sphere, he said, and there will be less cause for faction. This article is a seminal chapter in American history. Madison later changed his tune, allying himself with Jefferson and states rights doctrine.
The problem with Thompson's thesis, that "States become laboratories for democracy and experiment with different kinds of laws" is that states can't think. It is rare that an error is repeated this faithfully. It is as if this fallacy is written into conservative DNA. This analogy would have appealed to Holmes. Holmes was a positivist. He extended the notions of science to law. In this effort- as FA Hayek and others have demonstrated- lies much of our disarray. Societies are not laboratories. Legislatures don't learn from their mistakes. It is finally time to turn Holmes's famous observation on itself.
The life of the law has not been logic; it has been experience. And experience shows that states do not deserve our fidelity.