Federalism Archives

My talk was a variant of a lecture I've given before on "The Fable of Federal Environmental Regulation" (see, e.g., here), albeit with fewer policy prescriptions and a larger dollop of public choice analyses of environmental regulations (see, e.g., here).

The Pacific Legal Foundation has launched the Rapanos Blog to cover the Supreme Court's upcoming decision in the Rapanos and Carabell cases. These cases challenge the scope of federal regulatory jurisdiction under the Clean Water Act over wetlands not directly adjacent to navigable waterways. I wrote about the cases for NRO here. There's also a great discussion of the cases, including a debate among some of the lawyers involved, here.

CEI's John Berlau reviewed David Schoenbrod's new book Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People in yesterday's WSJ. This is a very important book. Schoenbrod was among the original attorneys at the Natural Resources Defense Council. Among other things, he helped lead NRDC's litigation to remove lead from gasoline. Saving Our Environment chronicles Schoenbrod's gradual disillusionment with today's centralized regulatory regime and the delegation of broad regulatory authority to unelected regulatory bureaucracies. Schoenbrod does not endorse free market environmental policies, as such, but his book has many important lessons for pro-FME and conventional environmentalists alike. My own review of the book will appear next spring in The Independent Review.

Over at Bench Memos, Mathew Franck takes after Arthur Schlesinger for saying in the New York Times that the Federalist Society doesn't understand history because the historical Federalist party was for strong central government and thus the Federalist Society should be called the Anti-Federalist Society.

Franck's response makes good points, but he doesn't point out the best rebuttal to Schlesinger. The Federalist Party of Adams and Hamilton coopted the phrase federalist themselves. Before they took it over, federal generally meant those opposed to strong central government. The popular strategy of coopting your opponents' catchphrases and twisting the meaning to your own to undermine your opposition and steal any of the positive associations with the term that were created by your opponent's investment in 'branding' is not new. The central-government folks stole the federalist term, which had previously been associated with decentralized government to reduce hostility towards their pro-central government goals by both creating confusion and giving the impression that they weren't extreme in how much central government they wanted, because "Hey, we're all federalists and believe in limited government."

Professor Isaac Kramnick briefly discusses this cooption in his introduction to the Federalist Papers for the Penguin Books version found here at Amazon.

On page 37 of his introduction, Kramnick writes:

A second tactical move by the advocates of the Constitution was their appropriation of the name Federalists. For some time a believer in federal principles was one who stressed the distinct sovereingty of the states and who opposed any consolidating tendency, any inclination to establish a powerful national government that would undercut the states. Those who sought a strong national government in the 1780s were usually called "nationalists." In the course of the ratifying debates, however, the name Federalist was adopted...by men in favor of the new national or federal government proposed in the Constitution. These federal men or Federalists in turn referred to the opponents of the Constitution as Anti-Federalists.

UPDATE CORRECTION: My initial post confused the introduction's author with another version of the Federalist Papers. This post has been properly corrected.

DISCLOSURE: I have been a dues paying member of the Federalist Society for two years and involved at the student level at Northwestern Law.

Last spring I presented a paper at the NYU Environmental Law Journal Symposium on State Roles in U.S. Environmental Law and Policy. I argued that current environmental protection efforts are plagued by "jurisdictional mismatch." The federal government focuses disproportionately on matters properly left in state or local hands, while neglecting areas in which the federal government has a comparative advantage. As a result, states reduce their efforts on state and local matters and increasingly involve themselves in matters of federal concern. This mismatch undermines effective environmental protection of all types -- whether one advocates traditional regulation, market instruments, or property-based strategies. A draft of the paper is now posted on SSRN and the abstract is below.