Federal vs. State Gov'ts Role in Creating Laws

[progressiveman1]

Should a state be able to make its own laws, or should the federal gov't be the sole creator of the laws?

[themadkat]

I think a state should be able to make its own laws and policies so long as none of them contradict the United States Constitution (in other words, no state may pass laws abridging citizens' rights to speak, assemble, speedy trial, etc). It's one of the reasons we have the various state governments instead of one giant blob of a nation. I also think it's a good idea to allow the states to be something of a showcase for the "marketplace of ideas" so that people can see practically what succeeds and what fails.

Of course this is all predicated on the notion that every state has the right of free entrance/exit.

[sanjavalen]

It doesn't matter as long as both are restricted from enacting laws which initiate the use of force.

Personally in such a situation I'd find States being able to make laws superfluous. The system is designed under the idea that the initiation of force is proper on individuals, or at least unavoidable, and to minimize this harm to individual liberty, as much power as can be is delegated to as low a level as it can be, in order so that the people making the laws are most responsible to a displeased electorate.) But there's nothing wrong with such a split up per se.

[DragonMaci]

I am personally unsure if state governments are even needed. I know NZ needs only a national government (we have no states so the word "federal" does not apply). We don't need the regional governments we have. We are a small country, so the one level of government is enough. But I am not sure if the same applies with large countries and state governments. Why not only have a Federal government? I don't see why multiple governments are needed.

Also, it seems to me that one set of laws is better than multiple sets of laws.

EDIT: In addition to that: the more levels of government there are the more funding is needed to fund government. I am not keen on that. I like the idea of government budgets being as low as rationally possible, especially in a laissez faire nation.

Edited June 4, 2008 by DragonMaci

[Adjutor]

Decentralization of power is always a good idea. Granted, smaller nations like NZ or the UK probably can do with a national government, even they ought to have some decentralization. The US is far too large to have a one size fits all approach, especially considering how our population is by no means homogeneous. As someone else mentioned, one of the advantages of this decentralization is the fact that you create a marketplace of ideas. Central authority destroys that.

[DragonMaci]

Granted, smaller nations like NZ or the UK probably can do with a national government, even they ought to have some decentralization.

I think "ought to have" is wrong; it is the opposite of what NZ ought to have. For there to be two levels of government in NZ would be redundant and a waste of money. Besides, as i said, one set of laws is better than multiple sets of laws. At least in a laissez faire nation anyway.

The US is far too large to have a one size fits all approach

I am not suggesting one size fits all. I am suggesting one set of objective laws fits all.

As someone else mentioned, one of the advantages of this decentralization is the fact that you create a marketplace of ideas.

That is true only of statist nations. It is not true of laissez faire nations. In a laissez faire nation one set of objective laws is what would be advantaeous. Having "a marketplace of ideas" when it comes to laws would not be; varying degrees of freedom is worse than all states having 100% freedom [from the state].

[khaight]

That is true only of statist nations. It is not true of laissez faire nations. In a laissez faire nation one set of objective laws is what would be advantaeous. Having "a marketplace of ideas" when it comes to laws would not be; varying degrees of freedom is worse than all states having 100% freedom [from the state].

I'm not sure that's entirely correct. The purpose of government in a laissez-faire society is to protect the individual rights of the citizens -- but the best way to implement this function is not self-evident. Suppose somebody makes a scientific discovery that opens up a new frontier for human action, as the discovery of radio did in the early 20th century. What kind of laws do the best job of specifying the application of individual rights to this new domain? There is legitimate room for experimentation in such issues, and having multiple governments implementing a 'marketplace of ideas' provides a laboratory for such experiments.

[DragonMaci]

The purpose of government in a laissez-faire society is to protect the individual rights of the citizens -- but the best way to implement this function is not self-evident.

I never said nor suggested it was.

Suppose somebody makes a scientific discovery that opens up a new frontier for human action, as the discovery of radio did in the early 20th century. What kind of laws do the best job of specifying the application of individual rights to this new domain?

That is an issue of future laws. It has nothing to do with having a different set of laws in each state.

There is legitimate room for experimentation in such issues, and having multiple governments implementing a 'marketplace of ideas' provides a laboratory for such experiments.

I disagree with that. The whole "marketplace of ideas" idea in relation to law seems to me too similar to the idea of competing governments in a single nation. At least as it has been presented so far.

[sanjavalen]

The US is far too large to have a one size fits all approach, especially considering how our population is by no means homogeneous.

No, the US - and any state, the whole world and every sentient being in the universe - does have a one size fits all.

Freedom.

[Seeker]

Federalism, like separation-of-powers, serves to curtail the potential for abuse by circumscribing the domain of various government actors. It is not a primary in the political context in the sense that the concept of freedom is, but an implementation detail, one of many practical measures for dealing with the reality that men are not perfect and that various means of constraining their potential for abuse must be devised to keep the government operating within rational bounds as much as possible. As with any constitutional safeguard, its effectiveness is not absolute; no safeguard can ultimately withstand a widespread philosophical agreement to the contrary. However, as one of many complimentary constitutional safeguards, federalism is rightly regarded as important to the preservation of individual freedoms. We should not dismiss its advantages.

[DragonMaci]

Federalism, like separation-of-powers, serves to curtail the potential for abuse by circumscribing the domain of various government actors.

I fail to see how that is the case.

Besides, if you have rational people running the government there is no issue of abuse. Rational people don't abuse power.

It is not a primary in the political context in the sense that the concept of freedom is, but an implementation detail, one of many practical measures for dealing with the reality that men are not perfect and that various means of constraining their potential for abuse must be devised to keep the government operating within rational bounds as much as possible.

Firstly, I don't think it is practical. I think it unneccesarily drives up the cost of government. Secondly, I fail to see how it keeps government within rational bounds. Besides, sych a means is unneccesary when rational people run government. As I said above, rational men do not abuse their power.

As with any constitutional safeguard, its effectiveness is not absolute; no safeguard can ultimately withstand a widespread philosophical agreement to the contrary. However, as one of many complimentary constitutional safeguards, federalism is rightly regarded as important to the preservation of individual freedoms. We should not dismiss its advantages.

What advantages does it provide when rational men run government? The ones you mentioned apply only when the men running government are not rational.

How do they does federalism achieve the things you say they do?

How does not having one set of objective laws not trump having multiple sets of laws? To me one set of objective laws is better because it makes it easier to obey the law. Having to second guess whether or not a certain action will break the law is a very bad thing. How does federalism manage to provide enough positives to make it worthwhile despite that large negative?

And even if federalism really is so useful in a large country like the US, I stand by my statement that even regional governments don't provide any use in small nations like NZ let alone state governments.

[khaight]

That is an issue of future laws. It has nothing to do with having a different set of laws in each state.

It has to do with figuring out what those future laws should be, given that they are not self-evident.

[DragonMaci]

It has to do with figuring out what those future laws should be, given that they are not self-evident.

Your point being...?

[DavidOdden]

Should a state be able to make its own laws, or should the federal gov't be the sole creator of the laws?

Only if the metaphysical facts of one geographical area are so different from those of another geographical area that Vermont requires different expressions of the idea "protection of the individual against initiation of force" from Illinois. I can't imagine what such a situation would be. Without such a fact, I don't see any justification for state-specific law.

[Seeker]

I fail to see how that is the case.

For example, the legislature of New York has no jurisdiction in New Jersey; the governor of New Jersey has no executive power in Maryland; and so forth. The federal Congress has power over the entire country, but only with respect to those limited subjects of legislation expressly authorized by the U.S. Constitution, Article I (provided that the constitition is followed in this respect - but see my disclaimer about widespread philosophical agreement for the limitation of this limitation). This is what I mean by circumscribing the domain of various government actors to curtail the potential for abuse.

Besides, if you have rational people running the government there is no issue of abuse. Rational people don't abuse power.

I suppose if you had a perfectly rational man running the government then there would be no issue of abuse, but to suggest the possibility of a perfectly rational man is to suggest that which has never existed in the history of human experience. As an ideal towards which to strive, we rightly herald the idea of a perfectly rational man. As a practical basis for the design of government in the real world, checks upon the potential for abuse by men of imperfect character are crucially necessary.

Without such a fact, I don't see any justification for state-specific law.

Perhaps not (as solely a matter of objective law), but that is not the same as not seeing any justification for state-specific governments (including separate legislatures). That justification is the necessity of limiting the potential for abuse as I have stated above. Do you accept that argument?

Edited June 5, 2008 by Seeker

[DavidOdden]

Perhaps not (as solely a matter of objective law), but that is not the same as not seeing any justification for state-specific governments (including separate legislatures). That justification is the necessity of limiting the potential for abuse as I have stated above. Do you accept that argument?

Your argument, from what I can determine, leads to the conclusion that in order to limit abuse of poser, the only government should be a strongly circumscribed federal one -- that a state government with vastly expanded power is a bad thing. So if that's the conclusion you intended to draw from what you said, I would agree that that is another argument against state law and government. Do you accept my argument about your argument?

[Seeker]

Your argument, from what I can determine, leads to the conclusion that in order to limit abuse of poser, the only government should be a strongly circumscribed federal one -- that a state government with vastly expanded power is a bad thing. So if that's the conclusion you intended to draw from what you said, I would agree that that is another argument against state law and government. Do you accept my argument about your argument?

No, because my argument does not actually lead to the conclusion that "in order to limit abuse of power, the only government should be a strongly circumscribed federal one". In federalism, power is circumscribed because it is divided between two levels of government and among several states, each assigned various matters to deal with in its jurisdiction. That division of power among multiple actors is a means of curtailing the potential for abuse by any one of them.

When you say "a state government with vastly expanded power", this suggests a concentration of power that would defeat the safeguard. But concentrated is the very opposite of divided and diffuse. So once again I reject that this follows from my argument or from the concept of federalism as such.

I certainly would agree that federalism alone is not a sufficient way to prevent abuse. Other relevant means include state constitutions and separate and distinct branches of government at the state level, as well as the federal guarantees of equal protection and due process of law given in the 14th Amendment and other amendments. However as one safeguard among many, federalism is a practical way to help ensure individual rights. I again point to the fact that the history of government is replete with abuses and conclude that a properly devised system of government must divide power by various means.

Edited June 5, 2008 by Seeker

[DragonMaci]

For example, the legislature of New York has no jurisdiction in New Jersey; the governor of New Jersey has no executive power in Maryland; and so forth. The federal Congress has power over the entire country, but only with respect to those limited subjects of legislation expressly authorized by the U.S. Constitution, Article I (provided that the constitition is followed in this respect - but see my disclaimer about widespread philosophical agreement for the limitation of this limitation). This is what I mean by circumscribing the domain of various government actors to curtail the potential for abuse.

I fail to see how that curtails the potential for abuse any more than only having Congress would. In fact I think it increases the risk of abuse; the more politicians you have the greater the chances of there being a corrupt one in power.

I don't think you have yet proven that multiple sets of laws is better than one set of objective laws.

Finally, even if you are right that it helps, I don't think it is necessary to prevent abuse.

[Seeker]

I fail to see how that curtails the potential for abuse any more than only having Congress would. In fact I think it increases the risk of abuse; the more politicians you have the greater the chances of there being a corrupt one in power.

Then you acknowledge the possibility of corrupt rulers, i.e. that a reliance on government always being run by rational people is unrealistic. Good. Now you merely need to ask whether the possibility of corruption is best mitigated by limiting the power of each individual ruler, which renders cases of corruption manageable by way of checks and balances, versus vesting one ruler with the whole power of government, which should he be corrupt would be catastrophic. This is the practical nature of such safeguards; a government that incorporates them is a government for men who live in reality.

I don't think you have yet proven that multiple sets of laws is better than one set of objective laws.

If federalism, on balance, is beneficial, then I have, because having multiple sets of laws follows from having multiple sets of lawmakers. You cannot have your cake and eat it too.

Finally, even if you are right that it helps, I don't think it is necessary to prevent abuse.

If we acknowledge the possibility of corruption, then we must acknowledge the practical need for measures to deal with it, including divided power. We can certainly debate the implementation details. I simply argue that, as one means among many, the advantages of a federal system ought not be dismissed.

Edited June 5, 2008 by Seeker

[DragonMaci]

Then you acknowledge the possibility of corrupt rulers

Of course. I never gave you indication otherwise.

Now you merely need to ask whether the possibility of corruption is best mitigated by limiting the power of each individual ruler which renders cases of corruption manageable by way of checks and balances, versus vesting one ruler with the whole power of government, which should he be corrupt would be catastrophic.

You misread me. I never said anything about individual rulers. I said government, ie, multiple people.

Also, in a laissez faire society the term "ruler(s)" does not apply to the government because they do not rule over people, they merely protect people's rights.

This is the practical nature of such safeguards; a government that incorporates them is a government for men who live in reality.

So far in this post you mentioned safeguards, but not what those safeguards are, which leaves it hard to agree or disagree with this point. However, since it was in the same sentance as the error about what I said I assume it is connected to that error in some way, thus does not address anything I actually said.

I have, because having multiple sets of laws follows from having multiple sets of lawmakers.

It does indeed follow. However, since you have yet to prove that multiple sets of lawmakers is better you have not yet proven that multiple set of laws is best. You have not yet proven that a system that will make it harder for people to know what and is and is not illegal harder is best.

You cannot have your cake and eat it too.

I never suggested otherwise.

If we acknowledge the possibility of corruption, then we must acknowledge the practical need for measures to deal with it, including divided power.

Speak for yourself. I clearly do not acknowledge the neccesity of seperation of powers, meaning "we" is not true.

We can certainly debate the implementation details.

That is not the debate. The debate is whether or not it is neccessary at all.

I simply argue that, as one means among many, the advantages of a federal system ought not be dismissed.

I am not doing so. I am debating whether or not there are any advantages because I do not see any.

Finally, you seem to be saying that it is always good to have seperate of powers in any country regardless of size. I don't think it is true. I think doing it with a country that is smaller than Texas (eg, NZ) would be more wastage than help. Besides, if Texas needs only the federal and state governments why does this small country need a government covering an even smaller territory than Texas? And if the small nation needs regional governments why does Texas not need regional governments as well? If it is necessary to break down the small nation why not to break down Texas?

Edited June 5, 2008 by DragonMaci

[Seeker]

It does indeed follow. However, since you have yet to prove that multiple sets of lawmakers is better you have not yet proven that multiple set of laws is best. You have not yet proven that a system that will make it harder for people to know what and is and is not illegal harder is best.

I apologize for confusion and edited my post to clarify my point. I do not claim to demonstrate that federalism is necessarily beneficial, only that it is one possible means to safeguard liberty. I will address your other points subsequently.

Edited June 5, 2008 by Seeker

[Seeker]

Of course. I never gave you indication otherwise.

Then we agree on that point.

You misread me. I never said anything about individual rulers. I said government, ie, multiple people.

Also, in a laissez faire society the term "ruler(s)" does not apply to the government because they do not rule over people, they merely protect people's rights.

Alright, then I'll use the phrase "government official", i.e. person running government, instead: Now you merely need to ask whether the possibility of corruption is best mitigated by limiting the power of each individual government official which renders cases of corruption manageable by way of checks and balances, versus vesting one government official with the whole power of government, which should he be corrupt would be catastrophic.

So far in this post you mentioned safeguards, but not what those safeguards are, which leaves it hard to agree or disagree with this point. However, since it was in the same sentance as the error about what I said I assume it is connected to that error in some way, thus does not address anything I actually said.

By "safeguard" I mean a constitutional provision that serves to protect individual rights.

I never suggested otherwise.

I never said that you did.

Speak for yourself. I clearly do not acknowledge the neccesity of seperation of powers, meaning "we" is not true.

Then you must argue that the possibility of a single corrupt official invested with the whole power of government is admissible as a rational option. I wholeheartedly reject that concusion, so indeed, we disagree.

Finally, you seem to be saying that it is always good to have seperate of powers in any country regardless of size. I don't think it is true. I think doing it with a country that is smaller than Texas (eg, NZ) would be more wastage than help. Besides, if Texas needs only the federal and state governments why does this small country need a government covering an even smaller territory than Texas? And if the small nation needs regional governments why does Texas not need regional governments as well? If it is necessary to break down the small nation why not to break down Texas?

To the contrary, in some circumstances, particularly in smaller countries, federalism might be impractical, and I certainly do not urge it in such circumstances.

Edited June 5, 2008 by Seeker

[DavidOdden]

No, because my argument does not actually lead to the conclusion that "in order to limit abuse of power, the only government should be a strongly circumscribed federal one".

...

I certainly would agree that federalism alone is not a sufficient way to prevent abuse.

That abuse has to be prevented by allowing no government the power to do improper things (so it's not federalism alone). Let's assume as a basic principle that no governments may act except to protect against initiation of force. Now the question becomes, what work does federalism do; exactly how is there any limit on the abuse of power coming from spliting governmental functions between state and national government?

In federalism, power is circumscribed because it is divided between two levels of government and among several states, each assigned various matters to deal with in its jurisdiction. That division of power among multiple actors is a means of curtailing the potential for abuse by any one of them.

First, we can see in our faces every day that the division of power leads to an expansion of power, not a limit. Murder is now not just a state crime, it is in many cases a federal matter. That means that two governments get a whack at an accused, which is, I would say, an abuse of power. Second, if I don't see how it limits power for there to be 50 statutes and state-level processes (course of appeal, etc) regarding fraud, rather than a single such national law. I just don't get it how this limits government power. Maybe the problem comes from not agreeing on the measure of "power". If the federal government were entirely responsible for laws, the federal government would have more total power, but states would have none, and the effect would be net decrease in power yielded by governments against an individual. (Not just an equality, but an actual decrease, because by eliminating state government, there could not be both federal and state laws against acts -- as there actually exists extensively).

I again point to the fact that the history of government is replete with abuses and conclude that a properly devised system of government must divide power by various means.

Well, we agree that this happens, and presumably agree that this indicates that the idea of separation of powers is not actually realized. My solution is to make it impossible to proliferate law at multiple levels, by not having multiple levels. What I want to see is an argument that having mutiple levels of government actually results in decreases in government power. It is an observed disaster, and it seems to me to be an inevitable disaster to the extent that it is possible for multiple governments to have something to say about one and the same thing. So I don't see any way that having state governments restricts total power directed against the individual.

[DragonMaci]

Alright, then I'll use the phrase "government official", i.e. person running government, instead: Now you merely need to ask whether the possibility of corruption is best mitigated by limiting the power of each individual government official which renders cases of corruption manageable by way of checks and balances, versus vesting one government official with the whole power of government, which should he be corrupt would be catastrophic.

You are totally missing what I am saying. It is not a matter of many government officials verses one government official. It is a matter of many governments (assumingly with many government officials) verses oone government (again assumingly with many government officials.

By "safeguard" I mean a constitutional provision that serves to protect individual rights.

There is no debate over a constitution being necessary; it definately is.

I never said that you did.

Then why bring it up at all?

Then you must argue that the possibility of a single corrupt official invested with the whole power of government is admissible as a rational option. I wholeheartedly reject that concusion, so indeed, we disagree.

No, it is not true that I must. Read the first paragraph in this post for why.

To the contrary, in some circumstances, particularly in smaller countries, federalism might be impractical, and I certainly do not urge it in such circumstances.

I said "regional governments" not "federalism". The regional government system is different to federal systems.

What David said about both state and federal laws is a major difference; in regional system there is national law and all regional laws (called bi-laws) are on different issues or are based on national law (some national laws leave room for variations from region to region via bi-laws).

I agree with David's most recent post by the way.

[Qwertz]

I was going to ramble on and on about the benefits of Federalism, but then I remembered you were asking about legislative power. Assuming a perfect government, there's no need for inferior legislatures - one will do you. But there are plenty of reasons to have inferior courts that operate in geographically smaller areas. Same with police. Imagine if there was exactly one court in the whole country. Yikes.

But having inferior legislatures would only make sense if protecting individual rights required different laws in different geographic areas.

~Q