Sunday, February 14, 2016

The Myths and Realities of Strict Construction

Before I begin, allow me to say that I am not exactly a strict constructionist in the sense it is usually used, I have my own interpretation of the term, and I know I differ in a few respects. For example, I believe there were a few mistakes in the Constitution, things I would change were I allowed. However, I believe that I also can present a pretty strong case for strict construction, either the more common interpretation, or my version, so I think that, despite my somewhat different view, what I am about to write will not be objectionable to most who support strict construction.

I have mentioned my liberal mother many times1, and it may come as no surprise that she and I have rather heated debates on matters political. Well, today saw yet another of these debates. She mentioned the death of Justice Alito, and started to discuss what she saw as his more "crazy" statements, such as his statement that affirmative action sets up minorities to fail (a position I support, and I said as much2). After some rather energetic discussion of the dubious benefits of affirmative action, she mentioned his belief in interpreting the Constitution as written, and this began yet another very animated debate.

It was not exactly clear to me what she found objectionable, the idea that the Constitution should be read as written, or the content of the document itself, and our argument seemed to veer between the two subjects. She offered up the usual caricature arguments, such as that no interpretation could be done, that women and blacks should not vote3, and so on. And, as the discussion jumped back and forth so much between strict reading and the content of that reading, I am afaid my arguments were probably a bit less clear than I would have liked. (Though my eleven4 year old who heard a bit of it did say "I think you're right about the law being consistent, you need to know what you can do." So maybe I was more persuasive than I thought.)  However, whether or not I was successful in presenting my case, it did make me realize that many people do not properly understand the reasoning behind strict construction, both in a fixed reading and in the content of that reading. Nor are they all liberals, as many conservatives share a number of mistaken beliefs, such as the value of strict construction resting upon the brilliance of the founders (an error I shall discuss very shortly). And so I decided to take a little time and explain two points. First, why we must approach the Constitution as a document with a single, fixed meaning. Second, why the Constitution itself is important, especially in terms of the limits upon federal jurisdiction, as this seems to be the issue most likely to make liberals object to a strict reading5.

So let us look at the first question, why a strict reading is important. Despite many liberal caricatures -- and a few conservatives who misunderstand the import -- the principle argument has nothing to do with the brilliance of the Founders of the inherent perfection of the Constitution. It is an impressive document,  but far from flawless, and the Founding Fathers themselves often disputed the exact meaning of the document, as well as debating the proper form of government. So it would be absurd to treat it as a holy book, handed down from on high by prefect saints. It is a work of men, clever men, but men, and those men themselves did not always agree. So we do not read it in a strict sense because there is some inherent, mystical value to the Constitution, something that elevates it above a simple contract. No, the reason is much more simple, much more mundane6.

We insist upon reading the Constitution as it is written, interpreting the words as they appear, settling disputes over possible meanings by referring to the Founder's commentaries, because, to put it simply, we have to interpret it somehow, and by doing ti in the manner described, we are assured there will be but a single meaning, and a consistent one.

Allow me to explain. There are many ways to interpret any document, as evidenced by the profusion of ink spent by faculties of English explaining what various pieces of literature mean.  And legal documents -- which is what the Constitution is -- are no different7. Thus, the meaning one derives from a document depends on how he approaches it. Is it literal? Is it figurative? Should I take it as implying more than it says? Should I read it to mean only what it says? And so on. Each and every person who reads a document could come up with a different meaning. Just look at the Griswold ruling to see what I mean. There, the judges managed to find a new right hidden in the "penumbras of the emanations" of the document. Of course, it is possible they were simply seeking a justification for the decision they wanted to make, but the fact that some took them at their word suggests that, at least in some cases, the assumptions they made seemed to fit with a reading which allowed for broad implications.

None of this would matter if we were talking about a book or poem, but since a Constitution is supposed to establish laws by which people live their lives, multiple interpretations present a problem. Or, at least, to some people they do. For some, there is no issue. There are a number of people who are content with an infinitely malleable document, trusting that the "right people" will be doing the interpreting, and thus establishing a "government of men not laws". However, such a system, besides resting upon a shaky foundation in the assumption that the rulers will always agree with your beliefs1, is the fact that such a system is remarkably inconsistent. Today, law A may seem fair and just, tomorrow it may not, and thus, even the most scrupulous rulers -- actually, especially those who seek "fairness"9 -- would be likely to produce incredibly inconsistent government. And, as I have written elsewhere10, it is better to be ruled by a consistent despot than an arbitrary saint. It may not be immediately obvious why, but just ask yourself, if you try to plan, to arrange your affairs for the next week, month, year, what is the one thing you need? Predictability. If you cannot know what will be legal or not tomorrow, you cannot plan ahead. And thus, in an arbitrary system, one cannot plan ahead, or accumulate wealth, or invest, and thus the economy will stagnate, people will be beset by worries, and things will generally suffer.

Thus, to ensure regularity, to guarantee consistency, to provide a framework against which laws can be enacted, or evaluated, we must agree to a single reading. Of course, we could choose any reading, it would not matter, so long as it was consistent. However, there is the rub. There are not many ways of interpreting a document which produce consistent results. Far too many rely upon the individual's impression, his personal understanding and so on. Thus, we insist upon strict interpretation, reading the document as written, with the words given their plain meaning, or, when that is insufficient, the meaning history suggests the Founders would have given them. It is not because these words are magical, or have some special meaning, but because otherwise there is no way to give them a consistent, reliable meaning.

For example, the Second Amendment clearly reads as preventing the government11 from limiting the right to bear arms. Some try to twist the first clause about militia to limit that right, but the clear reading says otherwise. And, if that does not convince, the historical context (Cromwell era laws disarming the populace, Locke's writings, the discussions of the Founders) all support the clear meaning of the text. Thus, it seems clear there is a single meaning to the text.

And that, establishing a single, clear meaning, is really the main point of strict construction. Some may believe there is more to it, but the truth is we just need to have a fixed meaning against which we can evaluate future claims about the law.

Which brings me to other half of the argument, the content of the Constitution. Though I said above, strict construction does not rest upon there being some special value to the Constitution itself,  I would argue that, though strict construction does not require the Constitution be especially valuable, the fact is there are some very good ideas embodied in the document, and one in particular that troubles the opponents of strict construction, that being the establishment of a republic made up on sovereign states.

It is not surprising in modern times, with the states reduced to something only slightly more independent than administrative provinces, with senators popularly elected, with the federal government largely funded by direct taxation of citizens, and with the commerce clause used indiscriminately to force federal regulations upon the states, and the few hold outs forced to comply by the threat of withholding highway funds12, that most people would not understand the value of federalism. But value there is, and, even in today's world, with power excessively centralized and the commerce and general welfare clauses distorted into enabling acts giving the central government ever greater scope, the remnants of federalism do still impose some limits upon the government, and that is the value of interpreting the Constitution as written. If nothing else, by keeping the federal government from riding roughshod over the states, and the people, the Constitution needs to be respected.

Federalism, at least partly, is an accident of history. The new nation come into being as a league of thirteen independent, and often antagonistic, countries13. As evidenced by their first efforts in the Articles of Confederation, a centralized, unified government was not a possibility, not just rivalries between individual states, but regional rivalries as well14, ensured the states would not surrender their sovereignty to establish a new singular nation. Thus, the fact that the United States started off as a federal republic is a historical accident, an understandable one, but still, the result of the particular historical situation, and not of any conscious planning on the part of the Founding Fathers15.

However, the Founders took a necessity and made a virtue of it. It may have been forced upon them, but from the necessity of crafting a union of somewhat antagonistic states, they created a federation that brought a number of benefits. Perhaps the states would only grant the central government the very limited powers listed in the Constitution, perhaps not, but whatever the reality, the Founders worked out a system where the vastly limited scope of the central government left the states largely independent, free to pursue their own agendas, and in so doing, crafted a system which was likely to both protect individual freedoms, and also ensure that bad ideas would have a limited scope and, due to competing ideologies, would eventually be replaced by better ideas16.

But perhaps it would be better if I simply explained the rationale of the system they finally created, as so many seem to misunderstand the virtues of federalism, supporting it more out of tradition, or veneration of the Founders, than from any understanding of its benefits17. Or, perhaps it would be even easier if I were to start by explaining the reason many object so strenuously to this division of powers, and thus to strict interpretation.

The basic reason so many on the left -- and some on the right, especially among the more activist social conservatives18 -- dislike the federalist limits is because they have a pet cause and they want to use the federal government to impose their answer on everyone, essentially side stepping state opposition, making sure their answer is forced upon everyone. In fact, this came up during my argument with my mother, as she voiced one of those mistaken arguments, claiming Alito "opposed gay marriage". Now, I don't know what he personally felt about the matter, but I know in terms of the Constitution, he did not "oppose gay marriage", but argued it was a state matter, not a federal question. But, because many hoped to use federal authority to force gay marriage upon states which opposed it, his position was seen as opposing gay marriage19.

The problem with such a position is that it rests upon the assumption you are right, and everyone else is wrong, as well as the assumption that one answer is right for absolutely everyone. That is a terrible excess of arrogance. The truth is, everyone is wrong sometimes, even the most brilliant individual. And, even more important, in other cases, there is no right and wrong, some questions have more than one answer, or individuals have different answers. And, to make matters even more complicated, even when there is something akin to a right answer -- for example, let us say there is an optimal level and form of taxation -- there are those who are not willing, or ready, to accept the answer, and so would be happier with the objectively "wrong" answer, at least for the present. But perhaps that is a bit more complicated than it needs to be, so let me say it in much simpler terms: One size does not fit all. For every political question, there are going to be multiple answers, and people will not be happy if you impose the answers upon them.

And that, in a nutshell, is the first benefit of federalism, people can get the answer they wish in their locality, and, if their neighbors persist in something they think wrong, they can move to a place where the answers are more to their liking. That is impossible with federal answers, as the nation as a whole must abide by a single answer. When answers are left to the states, then there are 50 options for every question, or more if the states allow counties, cities, or even smaller units decide. And so, for those who feel strongly about this issue or that, the odds are considerably greater they will be able to find somewhere the law will coincide with their beliefs.

But the benefits do not end with individual comfort. There are three more features of federalism that make it far superior to a central government and one size fits all answers. (Though the first two are closely related.)20 First, the multitude of states allows us to objectively compare answers, and see what the results of laws might be. Which leads to the second benefit, the fact that, once it is possible to see the outcomes of laws, the laws which produce the most pleasing outcomes will tend to spread, that is good laws will eventually drive out bad. Finally, there is the benefit that everything does not rest on a single choice, a single court decision, a single election, one toss of the dice. We do not have absolute winners and losers, and the acrimonious debate such situations create. All of which is rather a lot to put forth in a single paragraph, so let us look at each in a little more detail.

First, the use of individual states (or counties or regions or whatever unit) as laboratories. We heard this one a lot in civics, that the individuals states would work as "little laboratories of democracy", but sadly, the current government does not allow this to function in any but the most trivial of matters. States have control over some significant areas, such as criminal law, but tradition, and common sense, make criminal law relatively uniform across the nation. And, in addition, the government's ability to intervene if it fears civil rights are violated means the states cannot deviate too far in matters of law enforcement. Not to mention the use of federal funds to ensure states follow the federal lead in matter such as helmet laws, seat belt laws, drinking ages, drug laws and so on. So even in those matters, there is not much variation, just superficial issues, and so, the idea of a laboratory, testing variations on the laws, is meaningless in the world of today.

But were states free to enact laws as they saw fit, limited only in questions of interstate trade21, citizenship, some election laws, and a handful of other minor matters, the situation would be different. We would be able to see what effect a given law had on a state. Unlike now, when the whole country enacts a law, making it difficult to see the effect22, with multiple states, it would be much easier. Granted, multiple differences in laws might make it arguable what effect was attributable to a single law, but given a multitude of states, and the multitude of outcomes, over time, it would be clear what was and was producing what outcome. Granted, some people might still find the cost of a given law worth the benefit they received, but at least we could objectively determine what that cost was.

Such information would also have a second benefit. Perhaps consciously, perhaps simply through a sort of legal osmosis, the laws which produced uniformly beneficial effect would tend to spread from one state to another. Maybe not every state would adopt them. Some may still consider the alternate policies worth the added cost, or some may not agree the benefit is clear, or maybe one of a hundred other possible reasons, but by and large, laws which were seem to produce better results would tend to spread. And thus, without the need for persuasion, or argument or any other intervention, over time, seeing the success of other states, states would begin to adopt the policies of those other states.

And then there is the flip side of that argument. Those states which failed to adopt those policies, for whatever reason, would begin to see their citizens migrate to the more successful states. Perhaps some would not see too much migration. Perhaps, for example, a largely liberal state would have enough voters willing to sacrifice growth for social programs that population would remain constant23. But, for the most part, the laws which pleased the most people would tend to both attract immigrants from other states and be adopted by states for fear of losing population.

And then there is the third benefit, the one that is a bit harder to describe, but is probably a greater benefit than the others. Presently, with so much determined by federal fiat, the policy of the entire nation is determined by a single decision, be it a congressional vote, an executive order, a supreme court ruling or a regulatory decree. As such, the entire nation is split into winners and losers, and the struggle to gain control over such decisions is quite divisive. And you can see why. For example, in the case of abortion, where, before Griswold and Roe, it was fought out in fifty state houses, with some states having more restrictions, some fewer, now it has been determined by a single court ruling, and can be changed the same way. In short, 5 justices will decide for the entire nation, making control of the court the key to deciding the entire issue24. Similarly, the debate over mandatory universal health insurance made a question that should have been individual collective, and allowed a single congressional decision determine the fate of everyone, with the only hope for change being to control congress. Not only does this create acrimonious arguments, but it also ensures they will never end, the matter will never be settled. Since a single decisions could reverse the situation, there will always be a temptation to try to change things.

Now imagine a federal system. Abortion, like all criminal law matters25, would be decided state by state. And thus we would have fifty different decisions26. Of course, even in those fifty states, the law would be imposed by a single decision, but the pressures would be a little different. If your state is pretty firmly in one camp or another, it would be clear that your time might be better spent fighting the good fight in a more borderline state, rather than trying to battle against a strong opposition. Under our present system, with a single decision, this is not an option, it is all or nothing. In a federalist system, you can always move, or fight against the opposition in a more productive arena, and so, in those places where the decision is pretty clear, the question may eventually, if not be completely settled, at least reach a point where people have decided to leave it alone27.

Likely, some questions will never be fully decided, at least not in terms of the whole nation reaching agreement on a single answer. And that too is where federalism shines. After all, if people will never agree on a matter, or at least won't for a long time, then imposing a single federal answer will always create disgruntled losers and gloating winners28. If we can have fifty different answers, then the number of each is significantly reduced. After all, if it matters to you that much, you can always move.

And then there are those questions where there is no real right or wrong, or even two polarized positions. Some things are simply matters of preference, or choice, even in political matters. Or, maybe there is right and wrong, or positions which produce better or worse outcomes by some measure, but where some individuals still prefer an alternate approach29. In those cases, a state or county or region, whatever unit makes the decision in question, could enact laws which favor the local preference. By localizing laws, refusing to impose them at the federal level, it becomes possible to please a larger number of people, even in the case of very contentious questions.

And these benefits are what we got from an accident of history, and the document created in response to that accident. But to enjoy those benefits we must agree to interpret the document as it is written, as well as reverse a few changes -- both in amendments and in practices unsupported by amendments. But they can be achieved, and these benefits can be enjoyed by everyone. Which is why, I suppose, I feel so strongly about my take on strict interpretation, and perhaps why I get into such heated debates on the issue.

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1. For example, see "The Gadarene Swine Fallacy", "For Your Own Good -- The Problem with Subjective Rights", "Niagara Falls", "Call 1-800-Joe4Dictators", "Obama Recap" and "Bullies".

2. There are studies to support this, but just simple economics would make it clear this should happen. After all, a scarce commodity in high demand will always end up overpriced. I won't go into great detail, but the situation is as follows: Minorities are, as the name suggests, in short supply. Thus, if the top tier colleges begin to bid for those who would qualify for not just top tier but also second tier schools, the second tier schools will have to take those who would only qualify for, say, third or maybe even fourth tier schools. And so on. Now, in some cases, this may inspire the students to work harder and succeed, but in most cases, it seems more likely to make them take longer to finish, or to fail entirely. And the studies support that conclusion. And that ignores a number of other problems, such as the fact most beneficiaries are children of upper and middle class minorities, who are not very "diverse", as their lives are more like those of white students than other minorities. (Actually, I wanted to ask my mother -- but forgot as other matters arose --  if all blacks, for example, think alike. If not, maybe we should emphasize diversity of experience or belief, rather than assuming in a racist manner all people of one race have the same thoughts and attitudes. Is it not possible a class of all one race, but drawn from many different environments might have more "diversity" than one with many different races all having come from upper-middle class lives? I do not accept that "diversity" has any inherent benefit upon education, or anything else, but if it is supposedly valuable, promoting by race seems a simple minded, ineffective and somewhat bigoted way to try to achieve it.)

3. This is the most absurd straw man argument imaginable. The ability to amend the Constitution is written into the document, and thus completely acceptable to strict interpretation. Of course, those of us believing in strict interpretation may object to specific amendments, as might anyone. (I personally object to quite a few -- see "Minimal Reforms".) But the ability to amend the Constitution is disputed by no strict constructionist I have ever heard.

4. I almost wrote "ten tear old" as his birthday was very recent.

5. This is not the only issue which causes liberals to object to a strict reading, but it is definitely the most common. After all, most liberal causes which reach the supreme court amount to imposing a single, nationwide policy upon the states, and in most cases the challenge is predicated upon federal jurisdiction and states' rights (though rarely worded that way -- see "Noble Goals"and "The Civil War"). Thus, I think ti is fair to say, without the question of federal jurisdiction, the left would not be terribly interested in questions of strict interpretation.

6. In a way this reminds me of the nonsense one hears about democratic process allowing dispute to eventually reach the best possible solution. That argument is absurd. There is a mechanism in the Constitution to try to reach the best possible forms of government, but that is federalism, not democratic election of officials. Election, sad to say, is simply a means to allow turn over of control without the need for violence, as I discuss in "Misunderstanding Democracy". But years of bad Civics textbooks and a lot of mistaken homilies from politicians have convinced us otherwise.

7. As evidence, view the number of "lit crit" professors of English or literature who have tried their hand at legal studies. (Cf "Why People Don't Take Academics Seriously".)For the most part, sadly, they have managed to bring the same sort of confusion and madness they brought to literature to the field of law. Deconstructivism is not a good fit for legal thought, though I suppose for liability lawyers seeking a way around contracts and waivers it may be a godsend. (See "The Litigious Culture", "Oven Mitts and Safety Regulation", "Who Is Safer?", "Worker Safety", "A Possible Tort Reform, and the Costs", "The Perversion of Liability Law", "Still More on Liability Law", "A Misleading 'Right to Know'", "'Better Safe Than Sorry' Usually Leaves Us Even More Sorry, And Much Less Safe", "The 'Right To Sue' As Our Only Right", "Liability Law and Cost-Benefit Analysis", "Warnings and More Warnings - Another Look at Consumer Protection", "Consumer Protection", "Consumer Protection, Cartels and the Failure of Regulation", "The Harm of Class Action", "More Thoughts on Class Action Suits".)

8. This is a problem with most authoritarian philosophies, or interventionist ones, the people who support them silently, perhaps unknowingly, assume the future ruler will "see sense" and always act as they would. It is why most dictators end up killing off their most ardent supporters very early in the regime. See "The Inherent Disappointment of Authoritarianism". Arbitrary government also introduces the problem of replacing the market with patronage, which, though appealing to some, is often more risky than supporters imagine. See "Moral For Me, But Not For Thee", "My Censorship Is Your Discretion", "The Other 99%", "Patronage", "Subsidies and Censorship", "Patronage Versus Choice", "The Secret of Success, or, Why Government Fails" and "A Question for Artists of the Left".

9. I abhor the word "fair", but as arbitrary decisions often rest upon it, I am using it here. To understand my aversion, see "The Most Misleading Word", "Luxury and Necessity", "Res Ipsa Loquitur", "A Question of Fairness", "Protean Terminology", "One More Meaningless Word and Its Consequences", "Confucius, Aedes Aegypti, Pluto, Sub-Species, Conservatives and Republicans", "Misunderstanding Arbitrary Definitions", "Weasel Words and Hollow Words", "Semantic Games", "Misleading Terminology", "Smoking Versus Sex -- Want and Need Take Two", "Can We Ban the Word 'Scarce'?", "Government by Emotion" and "Selfishness as Reason - 'Wants', 'Needs', 'Fairness' and Other Guises for Arbitrary Decisions".

10. See "Predictability", "The Consequences of Bad Laws", "Traffic Lights, Predictability and Conservatism", "Inflation and Uncertainty", "In Praise of Contracts", "Contracts and Freedom" and "Juvenile Culture and Totalitarianism".

11. The federal government, that is. Though the 14th amendment makes the distinction irrelevant (a modification to which I object -- "Minimal Reforms"), the Bill of Rights originally applied exclusively to the federal government, the states were free to act as they wished, within the limits of their own constitutions, except in the few areas where, by signing the Constitution,  they agreed to limit their freedom (interstate commerce, citizenship, etc.).

12. See "The Glory of Eisenhower?" and "The Dishonesty of Transportation Spending".

13. I use the word "country" as "state" in this context may be misunderstood. We are so used to seeing "state" as something akin to "province" that we forget it means exactly what it says. A "state" is a state, a separate, sovereign entity. The "United States" is not one country, but a league of fifty countries, sharing power in a few areas, but otherwise sovereign entities. Time may have eroded some of that sovereignty, but the origin, and for some time,t he reality of the "United States" was that "states" were actual states, not provinces or districts. (See "The Benefits of Federalism" and "'United States' is Plural".)

14. Jefferson Davis' history of the Civil War presents a rather interesting, if one sided, history of the regional rivalries, including a number of controversies often omitted from history books. Of course, the North-South rivalry was not the only division, for example, the west was often at odds with the more established states.

15. Much of history is made up of such accidents. For example, the union of England and Scotland was mainly an accident of marriage, and the lack of a viable heir for the Tudors. Historically, there was no inevitability of a union. Scotland and England were quite antagonistic throughout much of their history, and Scotland was closer to France than England. There are hundreds of such instances where a single, rather unpredictable event resulted in a historical outcome which could easily have gone the other way. For example, had Princip had worse aim and had Archduke Ferdinand survived the assassination attempt World War I would have been avoided, or at least postponed. Or had Pompey and the optimates taken the treasury from Rome with them when they fled, it is quite likely there would not have been a Roman empire, as Pompey's diminished position -- even if he won a final victory --  does not seem as likely to allow him to claim the authority a victorious Casear  and his heir did.

15. Good and bad may be improper terms to use here. In many cases, there is neither good nor bad, just ideas more or less suitable for specific individuals or groups, and thus often it may not be bad or good so much as more or less suitable to a specific state. On the other hand, some laws may be a bad fit for any imaginable group, or a particular solution may produce better results by any imaginable measure, and thus good and bad may not always be inappropriate.

17. I discuss the virtues of federalism in "The Benefits of Federalism", "Minimal Reforms" and "The Case for Small Government".

18. For tactical reasons it may make sense to keep common cause with activist social conservatives, but logically there is little common ground between them and small government conservatives. In fact, even tactically there may be strong arguments against it. After all, the activist social conservatives (Huckabee being a good example) often seek expansive federal powers to force their views upon reluctant states, a position which opens the door for the same policies to be sued by the left. Thus, whatever benefit they may provide in votes and funding, they represent a serious Achilles' heel, as one cannot both support them and repudiate efforts to extend federal power.

19. This is akin to claims that Bush "banned stem cell research". Actually, it is wrong on two counts. First, he opposed research on new stem cell lines, saying nothing about existing stem cell lines. But even within that limited realm, he did not truly ban anything. All he did was prevent the federal government from funding such research. Researchers were still free to do research, they just needed other funding.

20. Actually, some other benefits exist as well, given certain situations. (See "Minimal Reforms".) For example, if the federal government lacks direct taxes and is funded entirely by the states, we are allowed to choose our type and rate of taxation by moving, while -- assuming senators are selected by states rather than popular vote -- senators act a a check on federal spending, and a force for fiscal restraint. And the list goes on. But for now we will focus on the three main benefits listed in the essay.

21. Ideally, interstate trade laws would be limited to the removal of barriers to such trade, not the use of the power to impose all manner of regulations. Unfortunately, such a power has to be granted in pretty broad terms, as if a state is only barred from raising tariffs, they can easily find other ways to impeded trade, so the state needs the ability to stop all such subterfuge, but along with the grant of such wide ranging power, it would help if someone made clear the intent behind such a grant. Sadly, this was overlooked in the Constitution.

22. Some might argue we can see the effect of a given law in subsequent changes, but experience says otherwise. For example, when a stimulus fails to produce economic growth, it is blamed on global economic decline, or a failure to grant sufficient power, or some other confounding cause. (See "Government Quackery", "Sleight of Hand", "Recipe for Disaster", "Rewarding Failure" and "The Endless Cycle of Intervention".) With multiple states to examine, all experiencing the same environment, it would be easy to dismiss such allegations, an see the true outcome of the laws enacted.

23. Though I personally favor a minimal government (see  "Reforms, Ideal and Real", "In a Nutshell", "Collective Ventures Versus Government", "Collective Action and Government", "Denying Reality", "Another Look at Exploitation", "In Loco Parentis", "Harming Society", "Hard Cases Make Bad Law", "De Gustibus Non Disputandum Est", "The Consequences of Bad Laws", "Hugging You to Death", "There Are Other Solutions", "The Free Market Solution", "The Problem of Established Perspectives", "Two Sided Processes and Claims of "Unfair" Outcomes", "The Oh So Useful Middle Class" and "The Problem of Established Perspectives".), and believe for the most part states would adopt such policies over time, I also recognize that some people are willing to endure quite a bit for their personal goals. So I am under no illusions that the entire nation would adopt such policies, no matter how much time elapsed. (After all, I live in Maryland, arguably the highest tax per capita in the US.) A few states would probably continue imposing liberal policies, though only a few, as eventually the costs would be clear and a lot of less dedicated souls would be tempted to leave, starving liberal states of the money needed to be a liberal state. In addition, a few social conservative bastions would probably persist in enacting public morals laws, regardless of consequence or cost, though, again, I think it would be only a few for the same reason as the liberal states. But, in the end, I do imagine the majority would discover that minimal government has tremendous benefits.

24. This is similar to my argument against the Libertarian party, and formal Libertarian policy in general. (See "Why I am not a Libertarian".) Imposing liberty from above, as a decision handed down, is both illogical (forcing liberty from above?) and also fragile. If a policy can be enacted by a single decision, it can be reversed the same way.

25. Abortion is a criminal law matter because, if it is illegal, then performing or receiving an abortion is a criminal act. Thus abortion is, logically, a matter of criminal law.

26. Actually, more than fifty, since we have the District of Columbia. And US territories and protectorates which, under federalism, would enjoy similar independence. In fact under a true federalist system many of the distinctions between states, territories, protectorates and so on would become meaningless. But, since I can't recall the precise number of all such entities, and "fifty" is both traditional and such a nice round number, I shall stick with fifty.

27. Sadly, such states do exist in our country, states where the populace is hugely for or against gay marriage, or abortion or whatever else. Unfortunately, because the federal government can step in and change state policy, those who strongly support or oppose gay marriage or abortion or whatever, will try to argue the matter is a federal concern and force what they think is right on the "poor benighted souls" in those states whose decisions they oppose. Thus, even when such decisions are currently made at the state level, matters are never settled, as there is the possibility of forcing a federal decision.

28. There is the potential for conflict whenever the government can confer benefits to individuals. (See "The War of All Against All", "Government Funding and the Creation of Strife", "Chaotic Government" and "The Road to Violence".) However, even if we do not eliminate such conditions -- though minimal government largely will ("Transparency, Corruption and Reform", "Power and Disorder") -- until such conditions are eliminated, by limiting government power to the smallest possible political unit, the harm done, and potential for conflict, will be kept to a minimum.

29. For example, the benefits of vaccines are pretty well established, and the harms shown to be largely imaginary. But there are still a significant number of anti-vaccine believers. So, perhaps some regions where they form a majority would enact different policies, even if they were objectively costly.

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