Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Don't Go Overboard With Federalism

Written by johnleemk on 2:02:44 pm Apr 15, 2007.

The question of federalism and states' rights is an interesting one. Many countries have federalist systems of government, where substantial autonomy is devolved to the states or provinces. The United States is the most well-known example, but Canada, Australia and India all have federalist systems.

Naturally, how federalism is practiced varies from country to country. Some nations have developed very interesting federal systems. Switzerland, for instance, requires that all constitutional amendments be approved by a referendum, and that there must be a majority supporting the amendment in at least half of the provinces.

The question of how far one must go in federalism is another interesting one. Some so-called federations, such as Malaysia, don't devolve more than a few powers to the states; state and local governments are seen as instruments of federal policy, rather than autonomous entities.

Other countries have taken an extreme route and in some cases, made the states more powerful than the central government. One such country is Switzerland, where one urban legend has it that if the country had been invaded during World War II, it would not have surrendered simply because the central government lacked any actual authority to surrender.

The merits of federalism have been discussed before, so this time let's focus on the problems of federalism. More specifically, let us discuss the problems of federalism when it goes overboard.

One obvious problem is that different states will have different policies and different laws. As a result, something that may be a crime in one state may be perfectly legal in another. People and corporations will often "forum shop" to get the best jurisdiction; this is especially true for companies, which don't have personal issues to consider. (There's a reason so many American companies are headquartered in the state of Delaware.)

Another problem is duplication of effort and a lack of cooperation that hinders efficiency. One example is the United States again, where tracking criminals can often be difficult because each state has its own law enforcement agencies, and each agency has its own database.

There is also a risk that individual provinces and states will develop too much of an independent identity, and refuse to come to the aid of other states for the sake of the country. This actually happened to the United States during the War of 1812, where one state refused to render the federal government assistance against the British invasion.

These costs are usually outweighed by the benefits brought by federalism. Because each state is able to implement its own policies and laws, it is able to innovate and experiment with new ideas in governance. If successful, these experiments can be implemented in other states; California, for example, is attempting to enact strict emissions regulations on automobiles. If these work, they could be a model for other American states to follow.

Since these benefits have already been discussed in detail before, let's not delve into them further. Instead, let's focus on the question of when is federalism enough? At what point have we gone too far in devolving powers to the states?

The American experience in federalism offers two helpful examples. The first is the Articles of Confederation, which predate the actual US Constitution. These articles were a tremendous failure when the states refused to act for the greater good of the country, and enacted laws going against the federal government, at the expense of the United States as a whole. For this reason, the Constitution was drawn up to replace the Articles of Confederation.

Later, the Americans actually waged a whole war on the question of federalism. The American Civil War's main issue was slavery, but an issue of equal importance was federalism. How powerful was the federal government supposed to be?

The Confederate states thought that it should not be able to contravene the laws and wishes of the individual states; naturally the federal government thought otherwise. Matters came to a head when Abraham Lincoln was elected; the slave states thought that he would use the federal government machinery to put an end to slavery.

As a result, they rebelled against the federal government, causing so much suffering over this issue of "states' rights". (A peripheral issue, of whether states can secede from the federation, was also considered; this is a thorny one which is not directly relevant to how far federalism can go.)

It seems quite clear to me that the American Civil War illustrates the consequences of getting carried away with federalism. A question as fundamental as human rights should not be something that the states can touch.

The answer to the problem of how much federalism is enough appears to be having a Constitution that adequately defines the prerogatives of federal, state and local governments. While it should refrain from codifying and setting in stone the issues that each level of government should have jurisdiction over, it should at least attempt to roughly delineate in principle the responsibilities of each level.

Federalism is a good thing; a unitary state suffers from being unable to experiment with new laws and policies on a small scale, and also is unable to effectively govern at the community level. But a surfeit of a good thing is a bad thing. Federalists should not get carried away with states' rights. When we talk about the prerogative of any level of government, we should consider what policies it is appropriate for that level to be carrying out and implementing, rather than blindly hewing to some ideal of "liberty" that merely empowers some government (be it a local, state or federal government) over the individual.

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