one state allowing factories to pollute an interstate river that negative affects farms in states downstream
At its core, pollution is a property rights issue. Those who have their life, liberty, or property damaged by another should have the right to adequate compensation. As such, robust property rights solves this issue at the individual level, i.e. the damaged parties recover their losses from the polluter(s). BTW, that property-rights solution by itself solves the negative externality problem. As the damaged parties receive compensation for the damages, the polluters are forced to bear the cost of their pollution and will either scale back production accordingly or find innovative ways to mitigate the pollution.
If there is a federal government, its core mission should be to simply ensure that the individual states do not interfere with each other's rights. This was the original intent of the 10th Amendment and the Commerce Clause.
10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Commerce Clause (Article I, Section 8, Clause 3):
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
The original intent of the Commerce Clause was obliterated by the Supreme Court in 1942 in Wickard v. Filburn. In that case, the Supreme Court ruled that the federal government's 'right' to regulate interstate commerce under the Commerce Clause extended to the activities of a small wheat farmer in Ohio even if his wheat was intended solely for his own consumption (i.e. as feed for his own animals and seed for future planting), because the combined (potential) effects of other small wheat farmers acting in a similar manner could (potentially) exert "a substantial economic effect on interstate commerce" by affecting the national price of wheat.
The result of that court case was unfettered and unrestricted regulation, by the federal government, of every aspect of commerce, thus shattering the restrictive intents of both the 10th Amendment and the Commerce Clause.
states could basically say 'if this vehicle is fine in California or Texas or X, then it's fine in this state'
It is highly likely that states would form associations wherein they would mutually agree to certain standards, much the way they currently do with respect to transportation issues (see AASHTO) and reciprocity for handgun licensing and engineering licensing.
I'm thinking of a scenario where something like a new airline wanted to operate in the US, or anything that needs to operate in multiple states to establish economies of scale
This is a perfect example. Every state would be able to regulate the aircraft that are allowed to operate within their respective borders. As such, regional associations would likely form, thus ensuring public safety without giving federal bureaucrats and politicians sweeping powers.
In fact, I have asserted to my students that the reason we do not have flying cars as a normative mode of personal transportation today is because of the FAA. I came to this conclusion after reading Where Is My Flying Car? by. Dr. J. Storrs Hall.
In the book, Dr. Hall quotes Federal Air Regulations Part 91, section 1443, paragraph (c) and points out the fact that
It’s not about flying. It’s not about aircraft. It’s not about maintenance of aircraft. It’s not about who is qualified to do maintenance. It’s … rules regarding who is allowed to do paperwork about maintenance. The entire Federal Aviation Regulations/Aeronautical Information Manual, which every airman is responsible for knowing, is 1,150 pages long. (italics in original)
Under a federalist system, where each state sets its own air travel regulations, the state of Texas could set up its own regulatory system wherein would-be innovators with respect to flying cars could be relatively free to experiment with various ways to solve that need, and be assured of at least one extremely large regional market (i.e. the state of Texas) for their resulting product.
In fact, I have commented to my students that the state of Texas could revolutionize personal air travel by simply declaring a moratorium on all FAA regulations within the state of Texas, adopting their own set of common sense regulations, then broadly announcing and advertising that
the Great State of Texas is open for business to all innovators who want to develop safe and reliable modes of personal air transportation.
Although no state has ever (to my knowledge) pre-empted federal regulations in quite this way, it is not all that different from the states of Colorado and Washington (in 2012) deciding to ignore federal criminal laws related to cannabis.
This all makes a lot of sense to me! Thank you.
One thing that super annoys me about the EPA (although there are many things) is that those small trucks common in Japan are not allowed in the USA because their not efficient enough for their wheelbase size - despite being way more efficient than vehicles much larger. I would love it if a state could simply ignore that regulation and then other states could access the data.
Same with flying cars. I don't want flying cars crashing into my house... but I'm perfectly happy with Texas allowing them and working out all the requirements to make them safe and trustworthy - giving other states valuable data before making their own decisions. That passage about the maintenance paperwork is absolutely fascinating... how much innovation has been lost/not followed because of similar such rules?
I wonder if this would actually make the American people less polarized as national political figures wouldn't matter as much as individual state Governors...
If the vast majority of all government power resides at the individual state level, and if citizens are free to flee oppressive states, then no oppressive state government will be able to remain so for very long.
I require my students to read the first 29 pages of Frederic Bastiat's essay The Law. In that essay, Bastiat says:
In other words, strip the government of its powers and limit its powers as Bastiat suggests, to "the collective organization of the individual right to lawful defense" then there is no reason to fight or struggle over who holds that power, as long as they are effective at combatting true injustice (i.e. violations of an individual's life, liberty, or property). That is because we will have stripped away the government's power to inflict injustice, i.e. to "legally" violate individual's rights to life, liberty, and property.
Bastiat refers to such government-initiated injustice as legal plunder, which he defines as follows:
I've never ever thought of USA states having so much power before and how that could play out. I really appreciate your time and effort with this... I'm not sure I deserve it, but I appreciate it.
Obviously it can be difficult for poorer people to flee an oppressive state, it does take resources to move interstate... but hopefully you'd see other states potentially enticing people away from oppressive states with resources or services to potentially help prove their success? Maybe?
You've mentioned using the law both individually and a state level a couple of times... how would people get fair trials? Assuming judges in a state are biased towards that state, or polluting factories have more legal resources than individuals, etc? The legal system is a huge part of this solution, but it doesn't necessarily always work fairly (at least not currently)... (which isn't a reason to not try this solution at all, I'm curious if there is a way to think about this).
Although this is true, it is the threat of people moving that will be the primary deterrent. States will know that their most productive citizens can leave and they will foster policies to protect against that. Poor people will thus benefit even if they can’t easily leave.
It’s similar to local grocery store prices. Most customers don’t go to multiple stores comparing prices, but the fact that some do and anyone can generally forces the local stores to maintain competitive prices.
Oh, that's a really good point. I keep forgetting to factor in the threat or the potential of eventualities to incentivize good outcomes.
This would be the same as under the current system. Trials are already local, due to the constitutional requirement for a “jury of peers”.
The difference being that if a state is known to have a corrupt judiciary, that will be reason enough for productive members of society to leave, thus creating a strong incentive to not have a corrupt judiciary.
It's true that trials are already local, but that's potentially part of the bit I'm struggling to get my head around...
In a scenario where factories in one state are polluting the waterways required by farms in downstream states, the crime of affecting the property/liberty of the farms would fought in the factories state... and if that state has corrupt government and therefore corrupt judiciary, then the farmers won't really stand a chance, especially if the factories have the resources to delay, counter-sue, etc until the farmers run out of resources, especially since it can often take 4+ years to even get to trial.
Or would you imagine the farmer's state would take up the matter on behalf of the farmers and make it a state vs state fight?
Sorry, I'm not trying to nitpick, I'm just trying to get my head around this block/bias that I have against the current justice system.