I remarked earlier (and derivatively) that federalism should be for citizens, not just states. Mark Levin takes issue with this comment, saying that federalism is “about state authority and the structure of our government as enumerated in the Constitution,” and that “[p]rotecting individual rights per se means everything and nothing.”

I’m not sure we really disagree. Let me try to explain what I meant, and see what Mark thinks. To start with: I think one of the reasons that federalism is a good idea is precisely that the division of coercive power protects individual rights. So far so good?

Also: The Constitution does not include the word “federalism.” It does, however, include many provisions that divide authority among the federal and state governments. Some of these provisions constrain the federal government, and some of them constrain state governments. A constitutional federalism—which is the most defensible federalism around—is not just freedom for state governments to do whatever they want to do. They should not be able to impose their laws extra-territorially: Madison County, Illinois, should not be able to make product-liability laws for the whole country and call it federalism. They should not be able to legislate on inherently national subjects: States can’t declare war or abstain from wars on their own, whatever Osama bin Laden believes. Mark: Disagree with anything here?

The Constitution’s limits on the federal government are not just there for the glory of the states. The feds may not assume certain powers even if every state in the Union wants them too. They are there for the citizens.

Assuming that federalism equals “states’ rights” creates two problems. The first is that limits on federal power will not be taken seriously if they do not protect states’ “sovereignty.” The Supreme Court has been much more likely to restrict federal power when state governments have yelped—but these may be precisely the cases where the political process is most likely to restrain federal power and where the court is least needed. The medical marijuana case, to return to the genesis of these posts, illustrates the point: Whether the federal government has the power to criminalize the medicinal use of marijuana probably shouldn’t turn on state policies, but it does in the Supreme Court.

The second is that constitutional limits on the states that are as much part of the federalist architecture as constitutional limits on the feds will be ignored. The Supreme Court’s record on the compact clause, the full faith and credit clause, and other state-restricting provisions of the Constitution, I think, amply bears out this concern.

I agree with Levin’s comments about the overpraise of Supreme Court cases that imposed pathetically weak limits on federal power.