New blue federalists.

The law, lawyers, and the court.
Jan. 6 2005 5:56 PM

The New Blue Federalists

The case for liberal federalism.

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Federalism doesn't suit the typical liberal's self-image, but one of the most persuasive defenders of decentralizing political power was that ultimate object of liberal cosmopolitan admiration (and conservative scorn), a French intellectual: Alexis de Tocqueville argued that the strength and dynamism of American democracy were found in its local communities. He was right: Local and state governments can be more innovative, daring, and proactive—in short, more progressive—than even the liberal Congresses of distant memory. A growing number of state courts and legislatures have pioneered public-school finance reform, working to ensure that kids from poor neighborhoods are not stuck in inferior schools. Many states have civil rights guarantees that are stronger than those under federal law, especially with respect to sexual orientation discrimination, which federal law does not prohibit. Californians, taking up the slack left by a federal government mired in religious extremism, have just voted to invest $240 million per year of state funding in cutting-edge biotechnology research. In many instances, what progressive states most want from the federal government is that it get out of their way.

States and local governments can be laboratories for democracy, where innovative and controversial policies can be tried out on a small scale before being applied more comprehensively. Take medical tort reform: Several states have already limited malpractice liability. If the proponents of reform are right, we should expect to see the cost of malpractice insurance and subsequently the cost of medical care drop in those states. Why rush to federal legislation when we can wait and learn from these states and their experiences? Such small-scale experimentation is ideally suited for controversial issues in an ideologically polarized nation.

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After the validation of same-sex marriage in Massachusetts, religious conservatives, pushing for the feds to ban same-sex marriage nationwide, predicted dire consequences for children, the breakdown of the nuclear family, floods, locusts—in short, the end of civilization as we know it. But the worst that could happen is that the four horsemen of the Apocalypse arrive early inMassachusetts. Do most conservatives really think that would be so bad? Similarly, antidrug conservatives claim that California's medicinal marijuana law is a prescription for reefer madness. Mellow out: If California becomes overrun with spaced-out hedonists—well, that is, evenmore overrun—then people from other states will know not to take a hit from their medical pot pipe. On the other hand, if same-sex marriage promotes stable and loving relationships and medical marijuana relieves human suffering at little or no social cost, other states, having let Massachusetts and California liberals take the risky first vows and first tokes, can join the party. And we promise not to say, "I told you so."

A house divided against itself will not stand. But that doesn't mean we can't have separate bedrooms and lie in the beds we make. A meaningful federalism could maintain fundamental rights and centralized control over activities whose effects cross state boundaries. But it would also let the red states experience more of the consequences of their political ideology and the blue states of theirs. I can't imagine a better way to advertise the virtues of progressive policy.

Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.

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