In several recent debates, various conservatives have been accused of betraying their professed commitment to federalism. The accusations have sometimes come from liberals, but more often from libertarians and other conservatives. It’s no use replying to the liberals that they are no respecters of federalism themselves; since federalism is not part of their political creed, violations of it are not betrayals of principle. But many libertarians say they believe in federalism too. So it has been possible for the conservatives in the dock to accuse the libertarians of hypocrisy right back.
If the accusers were right in each of these instances, one would have to conclude that a true federalist would oppose each of the following:
‐federal tort reform
‐federal legislation to restrict state taxes on the Internet
‐a federal constitutional amendment to ban gay marriage
‐federal laws against medical marijuana
‐federal legislation to combat rape in state prisons
‐federal bans on partial-birth abortion and cloning
‐Roe v. Wade
‐a federal ban on some kinds of state broadband regulation
‐a federal ban on state laws criminalizing sodomy
Perhaps there are people who oppose action by the federal government in each of these instances–but they seem to be rather thin on the ground. In some of these instances, I myself have made several of the a-true-federalist-would-oppose-this arguments; in others, I have defended federal action against that charge. If federalism means opposition to federal action where some people question its propriety, then most of us are not federalists, or are fair-weather federalists.
But that’s a silly definition of federalism. Is there a better one? Yes: There are several, which is the point. We have different conceptions of what federalism is, why it is valuable, and when it is violated. In many cases, then, what is really going on when one professed federalist accuses another of hypocrisy is one of two things. (1) The accuser is simply making a mistake, not realizing that the alleged hypocrite actually holds a view of federalism that is different from his own but consistent. (2) The accuser is trying, perhaps implicitly and perhaps clumsily, to argue for the superiority of his version of federalism.
Some people seem to use the word “federalism” to mean “conformity with those provisions of the Constitution that define the powers of the federal government and its relations to the states (and their relations to one another).” Others seem to mean something more like “the proper (or wisest, or most efficient, or most practicably decentralizing) division of governmental power between Washington and the states.” I’ll call these the “constitutional” and “political theory” views of federalism. Obviously, each way of looking at federalism leaves room for considerable disagreement. What does the Constitution command? What types of governmental responsibility must inescapably fall to the federal government? Most discussions of federalism do not take note of the possibility that the answers to these questions might not line up neatly. Maybe the Constitution gives too much power to the federal government (or too little). But people don’t often think that way because it’s so tempting to ascribe one’s own views about political theory to the Founders.
Was the Civil Rights Act of 1964, insofar as it overturned the decisions of southern state governments, a violation of federalism? On what I’m calling the “constitutional view” of federalism, the answer is no–at least if the Fourteenth Amendment’s grant of power to Congress to enforce its guarantees of equal protection, due process, and privileges and immunities really does cover that act. Was Glenn Reynolds a betrayer of federalism for supporting Lawrence, the Supreme Court’s sodomy decision? Not if he’s right about what the Constitution means. Am I throwing federalism out of the window by advocating passage of a federal ban on partial-birth abortion? Not if my argument about what the Fourteenth Amendment means is true–again, if we’re thinking about federalism in terms of what the Constitution says about state-federal relations.
The opponents of a partial-birth-abortion ban on federalism grounds have frequently taken the constitutional view. They say that the ban is a violation of federalism because it is unconstitutional. (They argue that the ban cannot be justified as an exercise of the congressional power to regulate commerce among the states, or of Fourteenth Amendment powers.) You’re sometimes left with the impression that if they thought the ban were constitutional, they would have no federalism objection to it.
It’s not possible to evaluate something like the proposed Federal Marriage Amendment using that way of thinking about federalism. Since it is proposed as an amendment to the Constitution, we have to think extra-constitutionally. Insofar as we’re thinking about the federalist implications, then, we have to think about federalism as political theory.
Here it may be helpful to distinguish among some of the reasons different people think federalism is a good thing. It can be defended as a way of ensuring choice, competition, and accountability. It may be regarded as a structural means of maximizing freedom and minimizing dangers to it. It may be seen as a way of realizing the goal of subsidiarity, the principle that responsibilities should be discharged by the smallest unit competent to do them. Or it can be valued as a way of encouraging experimentation with different policies (possibly as a prelude to national adoption of the successful ones). It may leave a larger number of people satisfied with the policies they live under than would be the case if a uniform national policy had to be adopted. It may be thought that the appropriate laws for a state depend on its particular characteristics. Or that it promotes a kind of civic engagement that cannot take place at higher levels of government. No doubt other reasons to support federalism can be added to this list.
As I mentioned earlier, I think a federal ban on partial-birth abortion (or abortion generally) is perfectly constitutional. But if I were adopting a constitution from scratch, I would probably leave such matters as partial-birth abortion entirely to the states. My “constitutional” and “political theory” views diverge to that extent. On the other hand, if the purpose of the federal ban is in part to challenge the Supreme Court’s existing abortion jurisprudence–and if that purpose is legitimate, as I think it is–then the federal legislature might very well pass the test of subsidiarity: Congress might be able to challenge the Court more effectively than states could. So I cannot just defend the ban’s constitutionality, but advocate its passage without, in my view, violating any federalist principle.
If the advocates of a Federal Marriage Amendment are right in thinking that it is the only way to head off a judicially imposed national regime of gay marriage and that this is something worth preventing, then they too can pass the subsidiarity test. On their argument, the states lack the capability to defend the older vision of marriage. Only this kind of federal action can work. If they are wrong, of course, then they are doing violence to federalism.
By now the patient reader may be wondering if all this meandering will take us to a destination. I haven’t actually made the argument here for why the Fourteenth Amendment allows (and indeed obligates) Congress to restrict abortion and cloning, or allows it to block certain kinds of state taxes and impose certain kinds of tort reform (but not all the kinds that are being discussed).
All I’m saying is this: Too often, the charge that some proposal “violates federalism” skips over the arguments that would render it meaningful. When the charge means only that there’s a difference of opinion over constitutional interpretation, for example, it cannot serve as a substitute for the argument that one interpretation is better than another. The fact that it is possible for people to get away with extremely lazy invocations of federalism as some sort of mantra is, in the end, one of the signs that federalism is actually in a bad state in our political culture.