Overview

• Federalism may be the best configuration to create and maintain a free society, albeit not the only possible way.
• It works by allowing local communities to implement their reasonable interpretation of the Legal Principle while establishing an enforceable minimum level of freedom at the federal or larger community level.

Benefits of letting local communities decide

• Allowing local communities to determine grey areas for themselves is the best way to see which implementation of the Legal Principle yields the best results. Local communities will observe which experiments work best and compete to attract talent by adopting ever better interpretations of the Legal Principle.
  • People naturally prefer places that are free, safe, peaceful, and prosperous.

Mitigating the risks of letting local communities decide

• We should expect people who do not subscribe to the 3L Philosophy to seek to employ the mechanisms of government to impose their moral judgments on non-aggressors. Judicial review to invalidate such laws is an indispensable tool to protect against such legal aggressing.
• It is vital to have a vertical check on government actions. While local communities should be the preferred deciders of questions where reasonable minds disagree upon whether something violates the Legal Principle, they should never be allowed to obviously violate it. Federalism is the appropriate mechanism to invalidate laws when local communities generate legal rules that indisputably violate the Legal Principle.
• It should be the responsibility of the federal government or the larger geographic community to guarantee that smaller communities do not violate the Legal Principle.
• Smaller communities and governments must face proper oversight. There must be a reasonable mechanism to appeal local communities’ findings, conclusions, and judgments to a tribunal with the authority to determine whether those actions reasonably comport with the Legal Principle. Federalism, appropriately calibrated, is an essential portion of that mechanism. Having a written constitution that establishes the most fundamental laws is necessary but also insufficient.
• Freedom is “self-rule,” and democracy is “mob rule” or “majority rule.”
  • As America’s founding fathers observed, pure majority rule equates to the tyranny of the majority over the minority as applied to any issue. Because of this concern, they fashioned America as a Constitutional Republic rather than an unfettered pure democracy.
• Federal courts are likely to be needed to strike down bad-faith or unreasonable interpretations of the Legal Principle