New blue federalists.

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

The New Blue Federalists

The case for liberal federalism.

Many liberals who haven't yet moved to Canada have indulged the fantasy of a "blue state" secessionist movement. But the American legal tradition does offer liberals a practical alternative to secession or a condo in Vancouver. It's called federalism, aka "state's rights." Liberals often have a reflexive distaste for decentralization of political power: State and local autonomy strike them as provincial and regressive. But much of the association of federalism with conservative politics is the result of historical accident: There is nothing inherently conservative about limitations on the power of Congress and the executive. And now that both of these branches are firmly controlled by conservatives, perhaps liberals will begin to see the merits of meaningful federalism. They won't need to look far: The president, mounting that favorite hobby horse of conservatives—tort reform—has just proposed federal legislation to limit medical malpractice awards. Even a modicum of respect for the prerogatives of the states should stay Congress' hand: Tort liability has always been a matter of state law, and the effects of supposedly excessive awards in one state should have few consequences for the quality or cost of medical care in other states.

Federalism is not just for conservatives, anymore.

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Under the Constitution, the power of Congress to pass legislation of national effect is formally limited to specific subject matters. All others are, in theory, the exclusive domain of the states. But in practice, for much of the late 20th century Congress has been able to do almost anything under an expansive reading of the power to regulate interstate commerce. The durability of this expansive reading of the commerce power owes a great deal to the prestige of the civil rights acts of the 1960s, upheld as a legitimate congressional regulation of interstate commerce. Thankfully, few modern lawyers wish to argue that federal antidiscrimination law exceeds congressional authority. And, perhaps as a consequence, until recently modern courts have by and large accepted the truism that almost any activity, anywhere, potentially affects interstate commerce and is subject to congressional regulation, provided that Congress makes a symbolic gesture at its potential interstate effects.

As a result we have, for instance, federal criminal law covering small-scale garden-variety activities such as marijuana cultivation for personal use. In reaction to this nationalization of the law, "Federalists" seek to limit congressional authority to legislate in areas that primarily concern individual states: California's criminal code can deal with the prevalence of homegrown hash on the streets of San FranciscoAnd with the help of the Rehnquist Court, this idea has gained real urgency in the past several decades.

A few liberals have advocated an embrace of federalism in the past, but for the most part, federalism has a well-deserved bad reputation among liberals (though no worse, I should hope, than secession). "States' rights" has been a central part of a conservative political agenda since Daniel Webster debated John C. Calhoun; and at least since the New Deal economic regulations, social programs (and the taxes necessary to fund them) often have been imposed by feds over the objections of more conservative state governments. "Federalism" is often an alias for conservative judicial activism—a convenient rationale for invalidating acts of Congress conservatives dislike.

But the legal arguments once used to invalidate liberal policies are equally applicable to federal laws favored by conservatives. Virginians successfully resisted the Violence Against Women Act as an inappropriate federalization of criminal law, and now Californians are attempting to resist federal antidrug laws outlawing the use of marijuana for medicinal purposes for the same reason. State and local police successfully resisted being commandeered into a federal scheme of handgun registration required under the federal Brady Act; now some have suggested that cities resist federal antiterrorism policies that impinge on civil liberties and target immigrant communities. Justices who claimed principled support of federalism when liberal laws were challenged will and should be hard-pressed to abandon their devotion to states' rights when conservative policies are at issue.

Liberal federalism has similar potential with respect to fiscal policy. When liberals controlled Congress, conservative opponents of federal power railed against the redistribution of wealth through social programs. Now that conservatives are in charge, the rhetoric of the free market has yielded to the reality of fiscal pork, and liberals openly grouse that most of the red states are net recipients of federal largess while blue states are net donors. (Google the phrase "red state welfare queens" and read for yourself.) Conservatives have long admonished Congress to tighten its belt, complaining that the federal taxes necessary to fund liberal largess slowed economic growth. Now conservative spendthrifts follow the familiar pattern of people who wind up on The Suze Orman Show: They fund their binges on credit. Borrow-and-spend conservatives take as much money out of the economy as tax-and-spend liberals did. The era of big government is back, and it has a MasterCard.

To many liberals, "states' rights" is almost synonymous with the old South and Jim Crow. But the political landscape is different today than it was in the 1950s and '60s. Old Southerners used numerous tactics to dilute minority political power, such as discriminatorily applied poll taxes, literacy tests, and racial gerrymandering. Today, thanks to effective enforcement of the Voting Rights Act, these weapons of mass disenfranchisement are unavailable, and minority voters enjoy significant political influence in many state legislatures. Disenfranchised minority voters needed the federal government to act on their behalf. Today, those voters can and do look after themselves in local and state politics.

Of course this wouldn't be true without the federal Voting Rights Act. And federal law serves many other indispensable functions: By setting a floor for occupational safety, environmental protection, and civil rights protections, it prevents a race to the bottom that might occur if states could compete for industry by relaxing such standards. An extreme federalism would undermine any policy initiative that requires a comprehensive national policy. While in theory, states could agree to adopt identical regulations governing, say, minimum wages or environmental protections, coordination would be difficult and the potential for strategic holdouts would be high. (Why impose environmental regulations whose full cost will be felt at home when much of the harm resulting from inaction will be felt in neighboring states downwind or downstream?) Sensible federalism has its limits: It must not allow states to limit the enjoyment of important rights, and it must allow for federal regulation of activities with significant interstate effects.

But this is all the more reason for liberals to take federalism seriously. Given the present composition of the Supreme Court, the federalist revival will almost certainly continue. Liberals can help shape federalist principles so that important and necessary federal initiatives are not undermined. Workable principles of federalism must reflect the realities of a national market and the need for significant coordination of policy among the several states: Federalist principles should limit congressional authority, but only when interstate effects are minor or the benefits of comprehensiveness small.

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.

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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