Ed. – Part 2 of this series is here. Part 3 of this series is here. Part 4 of this series is here. 

Part One: Context

If you read The Trenches, follow any of our team on Twitter or Facebook, or speak to any of us in person, you’ve probably heard the term “federalism.” Further, if you’ve listened to Mark Levin in the past year, or Jim DeMint on Rush Limbaugh’s show a couple of weeks ago, or Senator-elect Ted Cruz of Texas well… ever – you’ve heard the term there, as well.

So, you’re probably wondering “What, exactly, is federalism?” And I am ecstatic that you asked. But before it can be answered, let’s lay down some much-needed context.

If you’ve taken a Political Science class, or sat in on a Federalist Society meeting on campus or a symposium they’ve hosted, you’ve learned a great deal about what federalism isn’t.

In the course of study for PoliSci or Constitutional Law, you’ll hear a plethora of euphemisms, analogies, metaphors, and adjectives attached to the term “federalism.” We’ll go into a little bit greater detail in our next article, but the list includes Dual, Layer Cake, Marble Cake, Picket Fence, Creative, Competitive, Cooperative, Uncooperative, Fiscal, New, and (my all-time personal favorite, for the lulz factor) Progressive Federalism.

As we know, if there is anything the intelligentsia within the hallowed halls of our institutions of “higher learning” are more enamored of than twisting language to suit their ends… well, they haven’t found it yet.

Worse still, with a Federalist Society chapter on the campus of every accredited law school in the country, this language twisting has become a contact sport.

Don’t get me wrong, here. I’m not knocking FedSoc (much). They do a great job of disseminating information on First Principles and federalism, as it relates to jurisprudence. But they tend to get bogged down in purely academic pursuits like the validity of such notions as “judicial restraint,” stare decisis, “substantive due process”, and the principal/agent “problem.”

These questions undoubtedly play a major role in our modern understanding of the litigatory and precedent-based jurisprudential model we follow today. But, when all is said and done, these arguments are too clever. By half.

By focusing on stare decisis, they accept the premise that a 5-4 decision, somewhere in the history of the Supreme Court, has the power to trump the Constitution itself. The Framers (rightly) dubbed that “judicial tyranny”.

By focusing on “substantive due process,” they ignore the historical significance and context of the 14th Amendment. Worse yet, they overlook the fact that this amendment didn’t nullify a single word of the original Constitution, which preceded it. (We’ll deal with the spectre of “incorporation” a bit later, as well.)

By giving in, in the early 90′s, to the notion of “judicial restraint,” they accepted the premise that a judge striking down a flawed precedent would be “activism.” This stance implies that the Constitution itself allowed for (if not condoned) judicial tyranny, and to such an extent that one swing vote by one judge appointed by one President would be sufficient, in the eyes of the Framers, to change one iota of the Constitution. Clearly nonsense.

Their treatment of the principal/agent problem (by which I mean, virtually ignoring its existence), left the door open to the opposition. Much more on this in a moment.

This, sadly, is the legacy of the Federalist Society, and it further erodes Article 3 of the Constitution by rarely, if ever, exploring the notion of what constitutes “good behavior” on the part of Federal judges.

Our modern Judicial Junta was certainly not created by the Federalist Society, but damned if their areas of most intense focus haven’t tacitly condoned its existence and, thus, sustained it.

The most disconcerting effect of these academic pursuits has been to leave a vacuum in federalist thought and advocacy, among the “unwashed masses” that exist outside the rarefied turf trod upon by the intelligentsia. As nature abhors a vacuum, it has, predictably, been filled.

And, as is all too common, it’s been filled by the other side.

The ranks of those in the Progressive Professorship and Punditry Plutocracy are far too numerous to list, of course, and the smaller subset which seeks to further bastardize federalism is growing ever larger on an annual basis.

Our focus, at the moment, will be limited to one Heather Gerken, whose claims of being “a member of the federalism tribe” could not be more disingenuous. Ms. Gerken now teaches Constitutional and Election Law at Yale, after a 6-year stint at Harvard.

As we know far too well, these Ivy League institutions have been a breeding ground of collectivist thought and indoctrination since the days of Woodrow Wilson. A fierce opponent of the Constitution, Wilson used his influence as President of Princeton (and later in political life) to instill the notion of an “organic” Constitution in the curriculum of law schools around the country. This doctrinal delinquency went largely unchallenged in those institutions for a century, until the advent of FedSoc.

Ms. Gerken advances Wilson’s adulation for Bismarck’s Prussian “bureaucratic state” in a fairly unique way, with her advocacy of “progressive federalism.” Her concept enthusiastically affirms the existence, and necessity, of this illegitimate Fourth Branch of government. She seeks merely to reform it at the margins.

Her primary focus is in the areas of establishing “voice”, “exit”, “agency”, and, ultimately, “implementation” in the hands of society’s minorities (both political and racial, so she says). Since those are largely academic terms, let’s explore them in slightly more detail.

The concept of “voice” is not as abstract as the rest, since it stems from the deep seated (if positively erroneous) notion of America as a democracy.

In a democracy, the logic goes, everyone is franchised with a say in the direction of local, state, and national policy. But certain members of society, being political and/or racial minorities, rarely see ideas they vote for carried into reality through policy.

This is, in essence, what Heather means by “voice.” It entails a losing proposition, wherein one’s voice has no net positive effect. They can create commotion, but not exert control. These downtrodden souls’ only hope is for the majority to hear their voices, and act to rectify their complaints. Not exactly a position of power.

With “exit”, however, these factions leave the scene altogether, establishing their own power structure among themselves. Boycotts are a somewhat crude example of exit. This strategy works well in sending a message, Gerken argues, but does nothing to empower these minority factions within the existing system and, of course, change from without is virtually impossible.

Considering the limited effectiveness of those two avenues, “agency” and “implementation” are heavily emphasized in Heather’s “progressive federalism” model, and they go hand in hand.

The idea is to push bureaucratic governance down to an extremely localized level, thereby allowing majority-minority cohorts a much larger place in their requisite administrative agencies, due to sheer numbers in the local population’s available labor pool.

Once this takes place, the political and/or racial minority group will wield enormous influence, leading directly to implementation of their policy positions, which are most likely the direct opposite of those espoused by the national numeric majority.

Notice that, although Ms. Gerken constantly harps on “democracy”, her model explicitly throws majority rule under the bus by focusing on installing these minorities into hired administrative positions, rather than duly elected ones.

Further, her entire premise rests on an inverted understanding of the principal/agent problem. What is the gist of this problem? In short, the principals hire agents to safeguard their interests. The “problem” arises when other interested parties turn the agents to their interests, whether through direct payoffs (i.e.: money or in-kind contributions), or political payoffs (i.e.: influence or clout). This is commonly known as “capture.”

In America, as codified in the Constitution, the people themselves are the “principals”, while governmental bodies act as agents, for the sole purpose of securing unalienable and natural rights. The checks and balances inherent in the Constitution (and further shored up by the complementary doctrines of Separation of Powers and Non-Delegation) provide all the necessary protection the people need against agency capture. Elections play a role in curbing capture, as well, although it is interesting to note that capture become a much bigger problem after the passage of the 17th Amendment (which allowed for direct election of Senators). So, a more “direct democracy” model is at least correlative to increased frequency and scope of agency capture.

And here is where my earlier critique of FedSoc comes in. If those points were stressed, Gerken’s rewriting of the nature of this principal/agent problem would find no takers.

Instead, with her 100% fallacious understanding of which entities constitute “agents” vs. “principals”, Heather has gained wide acclaim. Her model views the state, local, and national administrative functionaries as the agents, and the Federal and/or state governments as the principals.

Governments, in her model, establish these administrative bureaus as agents to implement the elected bodies’ legislation. But, for that model to be accurate, one must also point out that it facilitates principal and agency capture. This is carved in stone by the fact that the salaries of individual administrators are paid by the governments their requisite agencies represent. And they are paid with money the government takes by force from the people. This establishes government as the principal in the equation, directly confiscating the birthright of the people.

Thus, her entire premise is flawed from the foundation up (an almost universal feature of Progressive premises, as we’ve demonstrated here numerous times).

Humor me as I destroy Ms. Gerken’s theories a bit more thoroughly, before explaining why you should care.

We already know that Ms. Gerken is working from two false premises: that America is a democracy, and that the government is the principal, rather than the people.

But it gets much worse than that. There are two insidiously erroneous statements she repeats frequently, in outlining “progressive federalism”. And she says them in such a matter-of-fact tone that many audiences have (and will continue to) simply accept them, unless they are refuted utterly.

The first: Heather constantly uses the term “highly decentralized, and partly politicized system”, when referring to bureaucratic agencies. This is repeated, almost as a mantra, throughout her talks.

Her reasons for doing so are obvious: To frame the debate and insinuate the premise into the consciousness of the audience. The more people believe that our massive bureaucratic state is, in fact, “highly decentralized” (let alone the level of politicization), the more benign and innocuous they will believe it to be.

But nothing could be further from the truth. If anything, the massive bureaucratic regime we labor under is highly centralized and disgustingly politicized. Businesses, large and small, across the nation, are faced with an administrative infrastructure that heaps over 80,000 pages of new regulations, in one year, atop the massive preexisting pile. How could anyone label such a Federal behemoth as “highly decentralized”, and do so with a straight face?

When the Federal government issues a regulation on the amount of raisins in any baked good which claims to contain them, and enforces that rule on a single local bakery, how can any honest person dare accuse that Federal body of being “decentralized”? And countless other examples of this absurdity exist. This one happens to be my favorite, for obvious reasons.

And need we even venture into the “partly politicized” claim, given the dozens of examples we can point to of would-be whistle-blowers who have been intimidated and/or forced out of their jobs by department heads in various bureaucratic agencies? The Departments of State, Justice, and GSA spring immediately to mind, leaving to the realm of speculation how many hundreds of other low-level functionaries there might be, whose tales we’ll never hear because they have been effectively silenced.

But, perhaps even worse than Heather’s nonsensical mantra regarding centralization and politics within the myriad layers of bureaucracy, is one she repeats with equal frequency and gusto. Exploring the depths of the errors contained in this statement could fill our server space, so I’ll simply trust you to ruminate on this point accordingly.

She gives away her entire ulterior motive, in these six seemingly benign words: “what a democracy owes its minorities.” Once again, her claim is that the word “minorities” includes both racial and political, but one quickly gets the sense that this is mere lip-service.

Regardless, the point must be reiterated that America is not, and never has been, a “democracy”. Furthermore, neither political and racial minorities, nor any other American citizen is “owed” anything under our Constitution, save that their rights not be violated. In the event such a violation occurs, it is the duty of law enforcement (or the governmental body charged with doing so) to pursue justice on their behalf. And that is the extent of anything “owed” to anyone in our country. People like Ms. Gerken would do well to remember this, and be reminded of it often, even in the halls of academia.

Now, to close, I’ll address the main unspoken questions burning in your mind since about paragraph seven: “Why should I care about this, Bradley? What does it have to do with me?”

You should care a great deal, if you seek to restore our First Principles which, after all, is the only way to restore our prosperity, uniquely American culture, and moral standing in the world. You see, Ms. Gerken has been widely acclaimed as a “rising star” in the legal academy. In fact, just this year she was the guest lecturer at Duke University, for a very prestigious lecture series that has been conducted at that school for over half a century. (You can find it easily enough on YouTube, should you choose, but I will caution you that it is a mind-numbing hour. I’ve watched it myself. Four times.)

And now I can hear the follow-up question, perhaps only half-formed in your mind, “But, Bradley, she’s giving a Progressive speech to a Progressive crowd of law students. How does that affect me?”

It’s much worse than that. And this is the insidious nature of Progressivism that I harp on constantly here: language twisting. Simply by attaching the word “federalism” to her theory, Ms. Gerken has piqued the interest of many in conservative circles, as well. She has been invited to speak at Federalist Society chapters, has been a guest speaker at other colleges, at the request of right-leaning professors, and has even been written about, at length, twice just in 2012, on the Volokh Conspiracy blog. (Pretty favorably, I might add.)

Progressives excel at infiltrating our ranks, gaining stature and clout, and twisting the language to suit their ends; all while convincing many on our side that their goals are noble and, if not overlapping ours, at least run parallel. We must learn to recognize this, at the outset, call it out, and educate others on how to spot and weed it out, as well.

We cannot allow our First Principles and actual federalism to be further bastardized, much less with our tacit acceptance or explicit aid.

As for what actual federalism is, we’ll discuss that in the next installment – Federalism, In Theory – coming soon here at The Trenches. Stay tuned…

About Bradley S. Rees

Spent 15+ years in the fields of regulatory, tax, and education reform. Ran in GOP primary for VA-5 Congressional seat from Nov. '08 to October '09. Host of "The Brushfire Hour" (now only in podcast form at BlogTalkRadio) and "The Sons Of Liberty Show" sponsored by Conservative Broadcast Media on spreaker.com Primary author at http://sonofliberty2k10.wordpress.com

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bureaucracy, federalism, heather gerken, leviathan, progressive, regulations