Last night I watched the first of a four-part PBS series called Constitution USA with Peter Sagal. In it, Sagal pretends to be a biker and goes on a neo-Steinbeckian cross-country trip in a quintessential attempt to take the pulse of the heartland — and, you know, other lands on either side of the heartland….
I quite like Sagal, whom I know primarily as the host of Wait, Wait, Don’t Tell Me, an NPR game show that I listen to religiously via podcast. He’s funny and insightful, which are generally good qualities to have.
Anyway, this first episode dealt primarily with the idea of federalism, that is, the unique system set up by the founders of the U.S. in which the Federal Government was given a limited set of express powers with the the states retaining others. As Sagal explains early in the episode, this means that while the federal government can invade foreign countries, it can’t (for example) fine people for littering.1
It’s worth noting that the episode was incredibly evenhanded. Sagal touched on a variety of topics, including medical marijuana, guns, segregation, federal works projects, Obamacare and regulations concerning the amount of water that can be flushed when using the toilet. He interviewed people from a variety of perspectives, and for the most part Sagal let them speak on their own. The short interviews focused primarily on the role of the federal government as it either interfered with or promoted the common good in the eyes of the interviewee. There were, of course, some people and ideas presented that I disagreed with, but in a way that seems to be the point of the episode. The mere existence of differing powers between the states and the federal government almost dictate that disagreements in how those powers are used.
(Incidentally, I was pleasantly surprised by appearances by two of my favorite libertarians included in the interviews: P. J. O’Rourke and Randy Barnett. Perhaps I shouldn’t have been surprised, since O’Rourke is a frequent panelist on Sagal’s Wait, Wait, and Barnett is probably one of the most recognizable legal scholars. Barnett was heavily involved in a 2005 medical marijuana case that went to the Supreme Court, and more recently he was called the “intellectual godfather” of the legal arguments against Obamacare. I frequently read Barnett’s posts at The Volokh Conspiracy, a conservative/libertarian legal blog.)
One of the things I think this episode did really well was to show that there is indeed a balancing act going on here. I’ve noted before that I think many of my fellow libertarians get sucked down the argumentative hole of dismissing all federal actions as government encroachment. While I think there are a lot of things that shouldn’t be done by the federal government, I get frustrated when I see such arguments made, because there clearly are things that the federal government not only has the power to do, but was designed to do. Stories such as that of Minniejean Brown-Trickey and the “Little Rock Nine,” who effectively became poster children for desegregation, seems to be pretty solidly within the rightful purview of the federal government. At the same time, regulating the amount of water that goes down a toilet drain hardly seems on the level of fighting for civil rights.
This first episode aired on May 7, but it’s available in full at the PBS website. The next episode is scheduled to air on May 14. I’ll probably be watching it.
1. There is some nuance here not really clarified in the episode. For example, the Federal Government has pretty much full authority to police federal lands. However, such police actions are nonetheless governed by the constitution, which is not necessarily true of all state police authority.