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The Liberal Case for Federalism

image of US map with state flags identifying borders

One of the most striking aspects of the United States’ system of government is its federalism: those titular states are not mere administrative divisions, but unique sovereigns with extensive powers denied to the national government. Historically, support for federalism has cut across the liberal or conservative divide: it was the liberal Supreme Court Justice Louis Brandeis who, in 1932, famously coined the phrase “laboratories of democracy” to describe how the Constitution’s Tenth Amendment allows “a single courageous State . . . if its citizens so choose . . . to try novel social and economic experiments without risk to the rest of the country.”

That began to change around the middle of the last century, as Congress and the federal courts assumed the role of champions of individual rights and equality as against states committed to marginalizing certain classes of citizens. Now, with many statehouses dominated by conservatives, partly through partisan gerrymandering, and this Supreme Court paring away constitutional protections of individual rights — most notably, the right to abortion — there seems to be little reason for liberals to celebrate our decentralized system. Indeed, at least two liberal writers have recently tweaked Justice Brandeis with the titles of their books.

But federalism can, I think, be a friend to liberals.

In this column, I will argue that a state-centric approach to the liberal project is attractive for a wide variety of reasons.

The first point is prudential and straightforward. It is always better to have two shots at achieving your political goals rather than one. If liberals have control of statehouses, defeats on the national level — whether in the Supreme Court or in Congress — need not mean the demise of their agenda.

Moreover, the chances of success at the state level are not as dim, or at the national level as bright, as many liberals think.

There is a persistent myth that when it comes to individual rights and equality, the federal government gets things right more often than state governments.

This is understandable, given the central role the federal government played in vindicating the rights of African-Americans, denied to them by Southern states, during the Civil Rights era.

But the U.S. Supreme Court has not always been on the “right” side. The Court’s seminal civil rights decision in Brown v. Board of Education outlawed segregation in public schools by overturning one of its own rulings, Plessy v. Ferguson. Similarly, the important voting rights case Smith v. Allwright — where the Court held that in allowing the Texas Democratic Party to mandate whites-only primaries, Texas violated the Fourteenth Amendment rights of its Black citizens — reversed decisions of lower federal courts dismissing the case. 

The Court’s record on labor rights is also spotty. In Lochner v. New York, the Court held that the Fourteenth Amendment’s Due Process Clause guaranteed a substantive right to contract, a right incompatible with state laws setting upper ceilings on the number of hours certain kinds of laborers — in this case, bakers — could work. In the mid-1930s, the Court invalidated a raft of New Deal legislation, prompting President Roosevelt to introduce an abortive plan to pack the Court.

Among the most shameful of the Court’s decisions concern state laws authorizing compulsory sterilization of people in states’ custody. In Buck v. Bell, the Court upheld a Virginia law allowing forcible sterilization of mental institution inmates. Justice Holmes’ opinion contained this now-infamous line: “Three generations of imbeciles are enough.” It was not until almost twenty years later that the Court, in Skinner v. Oklahoma, held that the forced sterilization of criminals was unconstitutional. I could go on.

State governments are also not as often wrong from a liberal point of view as is commonly believed. Indeed, in many areas, states have been in the vanguard of progressive change.

Wyoming became the first state to grant women the right to vote in 1890, thirty years before the passage of the Nineteenth Amendment. By then, fifteen states had already granted women full suffrage, with an additional eleven granting partial suffrage.

While the Supreme Court got it horribly wrong about compulsory sterilization in Buck, the state courts often got it right. Years before Buck, the highest courts of Michigan and New Jersey held that laws authorizing compulsory sterilization of the mentally ill in public institutions violated the Fourteenth Amendment’s Equal Protection Clause. Similarly, a Nevada court ruled that a compulsory sterilization law that applied to male prison inmates violated the Nevada constitution’s cruel and unusual punishments prohibition.

Besides the fact that the states are not always enemies of individual rights and equality, and the federal government not always a friend, there are additional reasons why state-level progressive agendas may be more successful than national ones.

By design, the authority of federal institutions is limited: Congress can only pass legislation under one of its enumerated powers, and federal courts only have jurisdiction over a limited range of cases. Not so with the states.

As long as its exercise is compatible with their own and the federal constitutions, states are free to use their “police power” — the power to legislate in the interest of security, health, safety, morals, and welfare — to pass laws on just about any issue under the sun. Similarly, state courts are courts of “general jurisdiction,” empowered to adjudicate issues governed by both state and federal law. Finally, most state constitutions are much easier to amend than the federal constitution, allowing for more rapid policy experimentation.

Nor are policies pioneered by one state necessarily confined to that state. The idea of “laboratories of democracy” is that if a state’s experiment is successful, it will be emulated by others. In truth, there is more than just admiration at play here. The reason that California’s announcement that it would ban the sale of new gasoline-powered cars by 2035 instantly became nationwide news is that if California were a sovereign nation, it would be the world’s fifth largest economy. Policies adopted in California have a nationwide and, indeed, a global impact, whether other states like it or not.

It will be replied that state experimentation is all well and good, but certain individual rights and equality protections should not be left to the states because there is no good reason that they should vary across state lines. Women are the same in Alabama as they are in New York, and hence their claim to reproductive freedom is no less strong in the former than in the latter. The point is undeniably compelling. But recognizing the value of federalism does not require abandoning the effort to nationalize or even constitutionalize rights. Rather, it gives liberals more opportunities to push their agenda forward — even when the federal institutions are not particularly receptive to it, as seems to be the case today.

The basic problem Americans face is that the founders gave us a remarkably terse, frequently ambiguous Constitution, and then they made it very difficult to amend. The few successful amendments are usually no less terse and ambiguous than the original document. This means that there will always be deep disagreement about which rights the federal Constitution protects. Given this reality, it behooves liberals to accept that not all courts will be the Warren Court, that not all Congresses will be the Congress that passed the Civil Rights Act of 1964, and that federalism affords viable alternatives to bring about progressive change.

A Challenge to Federalism: Mask Mandates and Subsidiarity

photograph of Florida road map

In this post I want to investigate a puzzle about federalism, and in particular a puzzle for those committed to subsidiarity.

Federalism is a political system in which power is divided between more and less local governments. The United States has a federal system, decisions are made by local governments, state governments, and the federal government. Not only are decisions made by these various bodies, but different bodies are empowered to make different decisions.

Sometimes you will hear people claim they want a greater degree of federalism, and what that usually means is that they want more decisions to be made by individual states, and fewer decisions to be made by the federal government. Thus, the conservative lawyer and journalist David French published a book last year arguing that an increase in federalism is necessary to handle political polarization. French thinks that, given that California is far more liberal than Tennessee, it makes more sense to have California and Tennessee each develop their own healthcare systems, rather than have one federal healthcare system.

Now, the puzzle I want to investigate can be asked in those general terms, but the puzzle will be clearer if we look at a more specific form of federalism.

Subsidiarity is an approach to political philosophy which says that decisions should be made by the most local body capable of making the decision. Everyone in my household can decide what book to read on a Saturday afternoon, so it should be up to each person what to read. I should not decide what my wife should read, nor should she decide what I read. If we want to take a family vacation, however, then we can’t just each decide where we want to go. If we each decide, then she might go to the mountains while I go to the beach, with the result that we don’t take a family vacation at all. Where to vacation, then, must be made at the family level. We, as a family, cannot set up a sewer system, and so the county should be in charge of deciding how to distribute water and electricity. Our county cannot administrate an intrastate road system, and so intrastate roads should be handled by the state. The state of Florida cannot coordinate for national defense, and so national defense should be handled by the federal government.

Why might one support a principle of subsidiarity? Well there are lots of reasons. First, you might think that more local control allows decision makers to be more responsive to local conditions and preferences. Thus, many oppose federal minimum wage legislation on the grounds that it is better to allow individual states to decide the minimum wage that is best for them. Most people will agree that the minimum wage in Switzerland should be different from the minimum wage in Bangladesh, but if different economic conditions across countries mean we want a different minimum wage, why would the same not be true between individual U.S. states?

Second, you might support subsidiarity on the grounds that it provides laboratories of experimentation. If each state tries their own healthcare system, then we are more likely to discover which system actually works best.

Third, and I think most plausibly, you might support subsidiarity on grounds of democracy and freedom. The more local an election, the more influence an individual can exercise. If I have more say over local decision-making, then it seems more democratically legitimate for a local body to make decisions on how I can live. Not only that, but because the United States is heterogeneous, with people often clumped with others of similar political persuasion, the more we devolve decisions to local control, the more people will be governed by the sort of policies they would choose themselves. If most people in California want state-funded healthcare while most people in Arkansas do not, then a federalist system where each state can adopt their own healthcare system helps ensure that most people are governed by the system that reflects their particular political preferences.

So what is the puzzle? The puzzle is raised by policies where a less local government bans a more local government from restricting even more local decision-making. The example that started me thinking about this came from my home state of Florida. Governor DeSantis recently signed a bill to end all local COVID-19 restrictions and emergency orders. In doing so, Florida has joined other Republicancontrolled states in passing laws that prohibit local authorities from instituting more restrictive COVID precautions.

As someone who generally supports subsidiarity, how should I think about these policies?

We could make a federalist or subsidiarity argument both for and against these state policies. The argument against these policies is easy: subsidiarity says that we should generally defer to more local decision-making. A state coming in and saying that a local town cannot have their own mask mandates overrides that local control. Counties and cities should be free to make their own decisions, as such, it is inappropriate for the state to ban cities from passing mask mandates.

However, you could also make an argument for the other side. You might say that it should be up to individuals whether or not they wear a mask. Individuals and families should be free to make their own decisions. As such, it is inappropriate for local authorities to maintain mask mandates at this point in the pandemic, and as such it is right for the state to step in in order to protect individuals from the overreach of local governments.

To help understand the conflict, imagine we iterated this puzzle at a higher level. Just as Florida passed a law banning cities from requiring masks, suppose the U.S. Federal Government passed a law banning states from prohibiting mask mandates. You could say this is bad for federalist reasons, the federal government should leave it up to the states. But you could also say this is good for federalist reasons, this ensures that states don’t overstep and violate the freedoms of local authorities.

This puzzle of subsidiarity is actually just a particular example of a puzzle that crops up in lots of places. Consider, for instance, this puzzle raised by Marcia Baron:

“An administrator once told me about the following dispute. A speaker had been invited to campus. The point of his lecture would be to oppose free speech. Some of the faculty objected strenuously to having him to campus and favored ‘uninviting’ him. Free speech is a great value, and they did not want to see it undermined by this or any other speaker. Others defended the plan to bring him to campus – and they did so in the name of free speech.

How could both parties appeal to free speech – and only free speech — in defense of their respective views? Those who opposed the speaker’s visit saw free speech as a goal, a goal which would not be advanced and might well be hindered by a speaker who spoke against it. Those who supported the speaker’s visit saw free speech as a matter of principle, imposing a side-constraint on our conduct. In the view of the former, what is desired is that free speech flourish, and to that end it might occasionally be necessary to squelch (what would otherwise be) free speech. In the view of the latter (those who supported the speaker’s visit), free speech is a value not in the sense of a goal to be promoted, but a value never to be violated. It would be a violation of free speech to prevent a speaker from speaking on the ground that his or her views were considered noxious, outrageous, or dangerous. That allowing the speaker to speak might undermine the cause of free speech by winning over some impressionable college students to the speaker’s side is irrelevant, in the supporters’ view. Those who opposed the speaker’s campus visit viewed free speech as a goal to be promoted or advanced. Those who opposed the attempt to uninvite the speaker saw free speech as a matter of principle: as constituting a side-constraint on our conduct. Side-constraints work this way: they tell us that no matter how worthwhile the goal, there are things which we may not do even if they are crucial for that goal.”

This is, I think, the same sort of puzzle. Can we restrict speech to maintain more freedom of speech? Can states force decisions on local governments, to stop them forcing decisions on others? And if Marcia Baron is right, the question we need to answer is does subsidiarity work like a side-constraint, or like a goal to be promoted? If it is a goal to be promoted, then these state policies might make sense. If it is instead supposed to act as a side-constraint these policies are problematic. How does one decide?

I don’t think there is any easy answer. Even if you look at one particular reason for accepting subsidiarity it can be tough to decide. Suppose you think that more local bodies are better able to make decisions for themselves. One the one hand, that might support allowing local governments to decide what is best for their specific conditions. But on the other hand, that might support letting each person decide for themselves whether or not they want to continue masking. And there is something to both these thoughts. Ideally, those who are vaccinated can mostly go without masks and those unvaccinated should continue wearing masks. So, ideally, people could make the best decision for themselves.

But then again, sometimes people make bad decisions and impose risks on others, and you might think that local authorities are in the best position to know how high the general risk is in a given local community.

In this particular context I’m inclined to think that local authorities should be empowered to make emergency decisions. I think the principle of subsidiarity means that states should not dictate what local governments can do.

But on the other hand, sometimes I support overarching restrictions. For instance, the Constitution is federal law that prevents states from imposing a religion on their citizens. I think the choice of religion should be up to individuals, and as such it is appropriate for the Supreme Court to impose on states a prohibition on compelling religious practice.

The puzzle persists, then, and there are no easy answers.