Two Faces of Federalism: An Outline of an Argument about Pluralism, Unity, and Law: Followed by a Discussion

By Robert M. Hutchins | Go to book overview

Two Faces of Federalism

I

The usual emphasis of the phrase "limited government" is on the restriction of the sphere of the state. This restriction is justified either by the incompetence of the state and its consequent lack of jurisdiction, as in religious matters, or by a preference for private as against public action, as in economic matters.

The restrictive connotation of the phrase "limited government" is not the only possible one. A constitution that directs the community to work toward certain objects in certain ways limits the government in the sense that the constitution inhibits the pursuit of other objects or the use of other means. In this sense any written constitution limits the government, for it is inconceivable that the framers would content themselves with the gratuitous remark that the people could pursue any objects by any methods that appealed to them.

The first way of talking about limited government, which emphasizes restrictions on government, is supported in the name of individual freedom, which is thought to result from immunities against government. So Mark DeWolfe Howe says,1"As I read the original Constitution and its Bill of Rights it expounds a political theory which is grounded in the belief that liberty is the byproduct of limitations on governmental power, not the objective of its delegation. . . . These distinctions I believe to be of profound importance. When they are forgotten we begin to use the word 'rights' and the phrase 'civil liberty' in misleading ways. Our rights, as the framers conceived them, were essentially certain specified immunities. They were not claims on, but assurances against the government. . . . The Bill of Rights defines our immunities; it does not catalogue our claims."

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1
In an unpublished paper prepared for the Fund for the Republic.

-5-

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Two Faces of Federalism: An Outline of an Argument about Pluralism, Unity, and Law: Followed by a Discussion
Table of contents

Table of contents

  • Title Page 1
  • Foreword 3
  • Two Faces of Federalism 5
  • A Discussion 25
  • Four Questions 35
  • The First Amendment and Education 43
  • Clarifying the First Amendment 50
  • Consensus and the Law 63
  • The Rise of Private Enclaves 71
  • The Natural Law 75
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