The States, the Stimulus, and Federalism’s Prisoners’ Dilemma

The States, the Stimulus, and Federalism’s Prisoners’ Dilemma The stimulus is but the latest chapter in federalism’s prisoners’ dilemma.  For those unfamiliar with the concept of the prisoner’s dilemma, it is a logical tool of individual choice. There are two prisoners who are individually isolated and arrested for committing the same crime. There is no other solid evidence against either of them other than their own prospective individual and collective statements. If neither talks, both walk. If one talks, he walks, and the other prisoner suffers full punishment. If they both talk, they are both punished, but less than if they did not talk at all.

So what is the rational position? Unless you have full and complete trust in your fellow prisoner (and who would?), it is to talk because you figure he will do the same.

So it goes with federalism. You do not have to to lower your speed limit or raise your drinking age – you just have to forego matching federal highway funds. You do not have to operate your Medicaid and Medicare systems per federal regulations, you simply have to forego billions in federal dollars, etc., etc., etc. If you do not comply with the federal mandate, you are at a comparative disadvantage to other states, and your citizens are still getting taxed by the federal government at the same absurd rate. What is a rational state to do?

Like prior Constitution-extorting funding programs, which have sadly been legitimized by the Supreme Court over a series of progressively bad decisions, the “stimulus” bucks also put principled governors in a bind. Sure, Governor Mark Sanford of South Carolina and Bobby Jindal of Louisiana would prefer not to take the money, but its money their (unborn) citizens are footing the bill for anyway.

Don’t take it, stand athwart federalism’s bulwarks, take your oath seriously and defend a basic founding principle of the United States Constitution (a principle without which the United States would never have come into existence, by the way), and you increase the net societal tax burden on your citizenry. It is central government compulsion at its finest and a text book example of the classic modern-day Washington modus operandi –  one must trade principle, no matter how central to our nation’s founding, for money.

Indeed, perverse is the only way to put it. The Department of the Treasury could do no worse if its bureaucrats drove a fleet of windowless white vans across the country asking the people if they would like some candy.  What we need is a second nullification crisis that moves to constrain the supremacy clause to its true constitutional limits, challenging the tenet that the federal government can force state action by withholding federal funds.

An appropriate constitutional amendment would require that every funds transfer to individual states by the federal government that required or restricted state action or policy to receive said funds be approved by a majority of state delegations to Congress. The reason to do so by delegation being that that if the states are to be constitutionally extorted by the federal government, they ought only be able to do so if the majority of the states themselves making up the Union agree to it.  It is not rape if there is consent.

So, should Tennessee, South Carolina, Louisiana and others take the stimulus money? Under present circumstances, the answer is yes, though there is nothing wrong with making some noise while doing it. The prisoners’ dilemma suffered by the states mandates it. That being said, we must move to close the ever-expanding circle of rot that allows the central government to compel state action by witholding or mandating the acceptance of constitutionally filthy money.

That is, we ought to if we are determined to preserve both the Union and the Republic. Disappointingly, today many in power are too intent on forging the former in steel. The latter…well, I really don’t think many of them know what the latter is.

Nathan Moore is a rare breed –  a conservative thinker, author and criminal defense attorney. He lives in Nashville, Tennessee, and co-authors the political blog http://www.MooreThoughts.com with his wife, and maintains his own criminal defense blog, the Moore Law Blog (http://www.moorelawblog.com