Vertical Federalism, the New States’ Rights, and the Wisdom of Crowds
Ronald D. Rotunda, Vertical Federalism, the New States’ Rights, and the Wisdom of Crowds, 11 FIU L. REV. 307 (2016).
21 Pages Posted: 21 Jun 2016
Date Written: 2016
The framers were concerned that the rights found in the Constitution were mere statements — “parchment barriers” — that would not be enough to protect the people from the abuse of power. Thus, they sought to control power by separating it. This separation of powers within the federal government is not the only method the framers designed to preserve liberty. They also embraced another form of Newtonian mechanics to balance power and thus preserve liberty — what we may call vertical separation — using the states to check the power of the federal government. The states, no less than the three branches on the federal level, protect the liberty of the people by dividing power between the federal and the state governments.
Vertical federalism protects our liberties and makes us the envy of the world, first, because the states are an important counterbalance to the federal government. The framers used power to limit power. Second, because when the independent states go their independent ways they implement what the economists call the “wisdom of crowds.”
Keywords: states’ rights, federalism, separation of powers, Sebelius, commerce clause, spending clause, democracy, Obamacare
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