The editors of the Liberty Fund’s new Law and Liberty website recently asked me to write a short article on federalism and freedom commenting on the Supreme Court’s decision in Bond v. United States, where a unanimous Court emphasized that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. My piece is available here:
In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”
The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty…..
is there any reason to believe that federalism protects individual freedom more generally? After all, history shows that state and local governments can also threaten liberty…..
Enforcing limits on federal power is no panacea for freedom. Nonetheless, federalism does promote liberty in several important ways. First, when political power is decentralized, individuals can “vote with their feet” against jurisdictions whose policies are oppressive or heavy-handed…..
The more political power is decentralized, the more areas of government policy will be subject to constraint by foot voting. Thus, limits on federal authority help realize the potential of foot voting as a protection for liberty.
State and local oppression is also less dangerous than federal oppression because it affects fewer people. An oppressive policy enacted by one state usually undermines liberty only for its own residents. By contrast, if Washington adopts the same law, it will cover the entire nation……
Ultimately, a free society must guard against threats to liberty from all levels of government. That requires imposing constraints on both state and federal authority. Liberty needs multiple institutional safeguards. Federalism by itself is not sufficient. In some situations, state and local governments can themselves become threats to our freedom. At the same time, federalism can enhance liberty in many situations by allowing us to vote with our feet and by limiting the reach of oppressive policies.
Other parts of the article describe some of federalism’s limitations as a safeguard for freedom, such as its relative ineffectiveness in protecting immobile people and property against abuse.
Arkady says:
“After all, history shows that state and local governments can also threaten liberty…..”
Can? I submit state and local governments exercise far more immediate and threatening power over you than ever the federal government.
January 11, 2012, 4:11 pmAlast says:
Another aspect is the intimacy of the oppressor to the oppressed. It is a lot easier for state citizen to reach out and touch state lawmakers than federal lawmakers. Thus the citizens have greater direct influence to counteract oppressive forces vis-a-vis state oppression versus federal oppression.
Also with federal “one-stop-shopping” oppressors (in terms of monied interests with powerful lobbies) have a single point to focus their lobbying for special favors…. sort of an all-in jackpot bet rather than having to win 50 hands of lower-stakes contests.
It also reduces foreign-state oppression.. where one states seeks a federal policy to benefit that state at the expense of other states (ethanol subsidies or mandates for example).
January 11, 2012, 4:24 pmAdam says:
Never mind that pretty close to no one has ever foot-voted, in particular because they can actually vote.
January 11, 2012, 4:25 pmAdam says:
I imagine that experience varies across states, but this may or may not be right. If you think powerful lobbies have a lot of power in Washington, you might want to visit Albany, for just one example.
January 11, 2012, 4:26 pmMark Field says:
The actual history of this country, OTOH, demonstrates that the biggest threats to liberty have always come from the states. Federalism, per se, protects no liberties at all. Federalism in conjunction with enforcement of the republican form of government clause, the equal protection clause, and the Bill of Rights is safe enough, but that kind of “federalism” can’t exist without, well, federals.
January 11, 2012, 4:38 pmAlast says:
In that role, the federal Constitution protects liberties and that is the proper protection at the federal level. I’m not saying that some protections flow from federal legislation, but net-net, a lot more damage to individual liberty comes from federal legislation that benefits. The sheer geographic size and sociological diversity of the U.S. militates that federal rules should be kept to a minimum.
January 11, 2012, 4:46 pmAlast says:
I’m sure they do, and I’m not saying it is an absolute. But on the whole, I believe the net-net will find ability of state citizens to deal with state oppression is marginally better than their ability to fight federal oppression.
Of course, you have to define “oppression”… one man’s oppression is another man’s common sense. And which side of the fence you come down on in any particular example may be highly correlated with regional influences…. which epitomizes the benefits of distributed rules rather than centralized.
January 11, 2012, 4:49 pmAlast says:
I think reality is different. Businesses relocate for those reasons all the time. People flee oppressive state taxes all the time. I personally moved out of Florida because of the Florida law preventing me from recording telephone calls I am party to.
January 11, 2012, 4:53 pmHugh says:
This is essentially one of those “my legs are just long enough to reach the ground–what a miracle!” kinds of arguments. The US has worked out safeguards of individual liberty that draw upon the distinctive features of its constitutional nature–i.e., federalism. Non-federalist countries draw upon the distinctive features of their constitutional natures and can achieve pretty much the same outcomes. There’s no inherent advantage to federalism per se. The USSR was a federal system. Free, not so much. Australia and New Zealand provide us a pretty nice example of side-by-side and very culturally similar countries, one federal and one not. I find it hard to imagine drawing a meaningful distinction between the “freedom” available in one vs. the other.
Would citizens in the EU automatically become “freer” if it became a European Federation? Somehow I think those most sure of the wonders of the US constitution would tend to be deeply opposed to any such move–and precisely because they think it would erode freedom.
January 11, 2012, 5:15 pmHugh says:
Tax flight is a myth. A durable and politically convenient myth, to be sure, but a myth nonetheless.
January 11, 2012, 5:22 pmbyomtov says:
Mark Field,
And this is not unexpected. There is a much better chance of generating an oppressive majority in a state than nationwide.
Another problem with federalism that Ilya overlooks is its ability to give disproportionate power over national matters to some groups. It’s one thing to talk about the advantages of decentralizing power, but that’s only half the story. Think of foolish policies like ethanol subsidies and other farm policies, for example, that reflect these imbalances.
Since we have a Che post, a small example comes to mind. Do libertarians approve of US policy limiting citizens’ rights to travel to Cuba? Surely that’s a glaring example of federalism restricting freedom.
January 11, 2012, 5:25 pmAdam says:
With all due respect (and I mean that), you are an very rare outlier. And I don’t think your existence suggests large numbers of compatriots.
Well, depends on what you call oppression, as you said above. I rather doubt any business ever moved because of the law on one-party consent recording, for example (well, maybe a call center business).
Again, we have the oppression question. But simply as a statistical matter, I don’t think “all the time” is right.
People mostly move for job reasons. A big chunk of the rest move for family reasons. A last chunk (especially of my fellow Minnesotans) move for weather reasons.
Almost no one is going to move from, say, Minnesota to Alaska because the taxes are lower there (assuming they are).
January 11, 2012, 5:31 pmAlast says:
CBPP is not a source I’d go to for unbiased analysis. Tax flight doesn’t mean relocation solely based on taxes, but as a consideration. It is a reality, particularly as an element to relocation. Even relocation for housing and jobs is an economic decision, of which to exclude taxes from the equation makes no sense.
Plus tax flight is skewed as income increases, so a single $20 million annual income earner may only be 1 person, but it is a significant larger exit of tax revenue to the state than Joe Sixpack moving for affordable housing.
January 11, 2012, 5:39 pmAlast says:
I can’t disagree with that.
Repeatedly, evidence in cases prosecuting illegal telemarketing shows that the do exactly that for exactly that reason. When consumer record their fraudulent telemarketing calls, the first response is often a civil suit against the consumer for recording the call.
I agree that the actual quantification of the effect is unknown, and possibly unknowable with an exact number due to the many other drivers… my point is that it is a factor, and while it is a larger factor for larger incomes than smaller ones, the fact that larger incomes are more likely to do it means a small number of people, can result is a vastly disproportionately large effect on state revenue.
January 11, 2012, 5:47 pmAlast says:
I can’t disagree with that.
Repeatedly, evidence in cases prosecuting illegal telemarketing shows that the do exactly that for exactly that reason. When consumer record their fraudulent telemarketing calls, the first response is often a civil suit against the consumer for recording the call.
I agree that the actual quantification of the effect is unknown, and possibly unknowable with an exact number due to the many other drivers… my point is that it is a factor, and while it is a larger factor for larger incomes than smaller ones, the fact that larger incomes are more likely to do it means a small number of people, can result is a vastly disproportionately large effect on state revenue.
January 11, 2012, 6:00 pmAlast says:
I can’t disagree with that.
Repeatedly, evidence in cases prosecuting illegal telemarketing shows that the do exactly that for exactly that reason. When consumer record their fraudulent telemarketing calls, the first response is often a civil suit against the consumer for recording the call.
I agree that the actual quantification of the effect is unknown, and possibly unknowable with an exact number due to the many other drivers… my point is that it is a factor, and while it is a larger factor for larger incomes than smaller ones, the fact that larger incomes are more likely to do it means a small number of people, can result is a vastly disproportionately large effect on state revenue.
January 11, 2012, 6:05 pmHugh says:
Something seems to be badly out of whack in the Volokh.com commenting system.
January 11, 2012, 6:47 pmStephen Lathrop says:
That could be. But oppressive polices in South Dakota with regard to credit cards have certainly had gigantic national effects. Corporations are always on the lookout for race-to-the-bottom opportunities in indulgent states. They often find ways to export the results nation-wide. Health insurance companies are currently pressing to do the same.
And note this: when state policy in one state affects residents everywhere, there is not a thing anyone outside that state can do about it. You get situations where residents of the state in question essentially get to plunder everyone else, and none of the others get so much as a vote. That’s a bigger restriction of liberty than anything at the federal level.
January 11, 2012, 6:56 pmRandy says:
“First, when political power is decentralized, individuals can “vote with their feet” against jurisdictions whose policies are oppressive or heavy-handed…..
The more political power is decentralized, the more areas of government policy will be subject to constraint by foot voting. Thus, limits on federal authority help realize the potential of foot voting as a protection for liberty.”
Rubbish. Jim Crow laws, segregation and general harassment laws existed in southern states for decades, the majority of black people did not move out of their oppressive states.
Many blacks did move northward during the Great Migration, but that did nothing to put any constraints upon the local governments. If anything, it could be argued that the blacks who were the most likely to agitate for change due to their education, energy, youth or ambition, left for the north, therefore depriving the south of the very people who would most likely agitate for change. Therefore the people who were left were less likely to raise a ruckus, and so the cycle of discriminatory practices could be kept firmly in place.
Although one could argue that the Great Migration is proof of “voting with their feet” it really changed nothing for the blacks who decided to vote with their feet and stay put. The term “voting with your feet” cuts both ways.
I’m all in favor of federalism, but to claim that is is a bullwark for freedom is just silly.
January 11, 2012, 7:11 pmRandy says:
I would also note that federalism failed to stop oppression of certain blacks prior to the Civil War.
At first, if you escaped as a slave, you were a free man if you reached a free state. The free states liked that, but the southern slave states did not. According to this theory, the institution of slavery should have weakened with those slaves “voting with their feet.” But escape was dangerous and dicey at best, so the percentage of slaves that could vote with their feet was quite small. I don’t see how that argument has any value.
But even if it did, there is no evidence that escaped slaves weakened slavery laws at all.
Worse, the southern states were able to pass laws that made if more difficult for escaped slaves to actually be free in a free state. This, of course, violates the concept of federalism. But if federalism is so easily violated, then how can it be a bullwark for freedom? If it crumples so easily, I wouldn’t place my faith in freedom on such a weak concept. History proves as much.
January 11, 2012, 7:18 pmMark Field says:
This strikes me as ideology speaking. It’s flat out impossible to tote up the various costs and benefits of all the federal laws ever passed. What we can say is that any downsides to those laws pale in comparison to things like slavery and Jim Crow.
Indeed. This is exactly what Madison said in Federalist 10.
January 11, 2012, 7:20 pmyankee says:
Also worth noting that the more localized government is, the easier it is for localized interests to engage in rent-seeking at the expense of everyone else in the area. An obvious example is local merchants who band together to ensure that chain stores with lower prices can’t move in, or licensing regulations designed to exclude out-of-state competitors.
January 11, 2012, 7:56 pmAmphipolis says:
It’s not worth much when so many buy into another type of freedom – freedom from want, ignorance, sickness, etc. which a benevolent government is supposed to somehow impartially guarantee.
What do you do when the citizens confound slavery and freedom?
January 11, 2012, 8:01 pmHugh says:
Sulk about it on a blog?
January 11, 2012, 8:06 pmCDU says:
I know plenty of people who have moved specifically to escape oppressive state gun laws.
January 11, 2012, 9:46 pmCDU says:
I know plenty of people who have moved specifically to escape oppressive state gun laws.
January 11, 2012, 9:46 pmAnthony J. Lawrence says:
Indeed, he asserted it, but he didn’t prove it. And his buddy Hamilton disagreed:
Hamilton’s notes of the convention June 1, 1787:
January 11, 2012, 11:13 pmAnthony J. Lawrence says:
Sorry about the bad block-quoting there. I couldn’t fix it. Hope all can tell what’s being said by me versus what was said by Hamilton, Madison, Mark, and byomtov.
January 11, 2012, 11:18 pmShane says:
I don’t believe that the idea that state and local governments are more accountable to the individual because they’re “closer” is actually true in practice. Local governments are far more prone to corruption and capture by special interests, less subject to media oversight, etc. I also imagine that more Americans can name their Senators or representatives at the federal level than their city councilmen at the local level. Similarly, voters probably have a better idea of what the political positions/priorities of their President are than those of their mayor.
Finally, I would be far more comfortable making a complaint about an FBI agent than I would be making about a local policeman who violates my civil rights. Intuitively, I’d say the feds are more accountable for their abuses than local law enforcement is.
In fact, the greatest limitations on my property rights come at the local level. The state has building codes, then the city comes and offers more restrictive ones about land use, and then the homeowner’s association has even more restrictions on property I own. Overall, I’d say weaker central government leads to something that seems more like feudalism, which isn’t good for individual freedom, either.
January 11, 2012, 11:23 pmJ. Aldridge says:
How can State and local oppression be dangerous under a republican government? People of the states were never known for oppressing themselves. States that oppressed blacks did so because they did not consider them citizens or 100% persons but not all states did. Aliens could be oppressed but only if they choose to reside in a state that didn’t desire them.
January 12, 2012, 4:06 amLou Gots says:
Plenty of gun-culture people have moved from the P.R.N.J. to Pennsylvania over Jersey gun laws.
January 12, 2012, 4:57 amAJ says:
Federalism in part simply supports the notion that the national government does not have the authority to regulate in all matters and it cannot exercise any power, only those enumerated and those reasonably adapted from the enumerated powers. This protects us from one-size-fits-all legislation on local matters and the liberty to have the states function as laboratories of democracy and to struggle with sometimes complicated issues. There are states with different income taxes, entitlement benefits, gun laws, corporate laws, immigration enforcement rules, marriage laws, custody laws, etc., and no one is prohibited from immigrating to a state that is more to their liking on these issues. By limiting power, we are protected from one-size-fits-all mandates and bullying that does not have local support The opposite side of this argument is advanced by the social planners and know-it-alls that worship at the altar of uniformity and prefer sub-optimal uniform solutions to a variety of competing solutions, always inventing new fears to justify their side getting more power and control. Ilya has it right.
January 12, 2012, 8:09 amMike Hansberry says:
Aren’t you failing to consider that there were free states under our federal form of government? If we had one national government from the start, slavery would have existed in all “states”. You make a glass is half full argument, and do not take into account that Federalism allowed states to ban slavery as well as to protect slavery.
Federalism is divided government in the vertical axis, the three branches being the horizontal division. Both act to protect liberty in their own way.
For instance, in addition to voting with their feet, if a person gets a raw deal from his local government, he can appeal to the state government. If still not satisfied, he can appeal to the Federal government. At the local level, like minded people can pass laws that work for the majority of those people. That of course can be oppressive for those in the minority -though they have the options of walking or appealing to higher level of government.
Federalism and the broad extent of the union set barriers for oppression on country wide basis(the basic message in Federalist 10) While a faction might gain firm control in some local area, they can not gain control at the national level as they would be opposed by other factions, moreover the power they can exert at the local level is checked by the next highler level of government and the local people’s ability to move away.
January 12, 2012, 9:10 amMike Hansberry says:
Have you asked your self why the Feds are in your opinion more accountable?
In the case of a corrupt local police force, one can appeal to the county sheriff. In not satified to the state police, if still not satified, to the FBI.
It works the other way as well. If the FBI becomes corrupt(not just one agent, but many), state level law enforcement organizations might expose the corruption, If there is only one national police force the tendency of any organization is to protect itself and to cover up / play down abuses.
If we put all our eggs in one basket -what then? Who do we appeal to if there is only a national police force? The divisions(firewalls if you will) in government tend to contain corruption and allow it to be exposed/rooted out by other levels.
January 12, 2012, 9:33 amRandy says:
I understand that. But my point is that freedom *diminished* for blacks in the years leading up to the Civil War in the so-called free states. If federalism is a bullwark against freedom, then how is it that it didn’t stop the backwards trend?
The people in the states such as New York wanted laws that protected escaped slaves. The federal gov’t said no — an escaped slave could still be captured and send back south. I agree that’s a violation of federalism, but the federal gov’t DID in fact do that.
So — if it’s so easy to brush aside the freedom benefits of federalism, then they aren’t worth much to begin with, right?
January 12, 2012, 11:13 amRandy says:
I do agree, and I am glad that we have these safety valves. Although they don’t always work, they are better than nothing.
I would note that gay marriage advocates are taking advantage of the concept of federalism. Some states allow it, and many do not. However, we have several candidates for GOP president who don’t like this and approve of a federal amendment to outlaw any state from having SSM, which would be a violation of federalism.
Not everyone likes the concept.
January 12, 2012, 11:28 amMark Field says:
More likely, we wouldn’t have had one national government under that condition.
It’s true that there are rare occasions in which an individual state has protected liberty when the national government failed (e.g., MA and marriage equality). By far the more common situation, though, is that the states and local governments have violated rights and the national government has had to protect them. In practice, the benefits of states rights have been few and the costs enormous.
January 12, 2012, 1:21 pmyankee says:
SSM supporters are only taking advantage of federalism where convenient. When it doesn’t work out at the state level, they turn to the Federal government, as with the Perry case. Nor do SSM advocates support retaining Section 2 of DOMA.
Neither side has demonstrated any consistent devotion to federalism principles. Both see federalism as a tool to be used when convenient and discarded when not.
January 12, 2012, 1:31 pmyankee says:
No, we wouldn’t. The slave states would not have accepted a national policy abolishing slavery, and the free states would not have accepted a national policy requiring them to permit it. And the mere prospect of a national policy on slavery was enough to rupture the nation.
Jim Crow is a much better example of the failure of federalism. The Southern apartheid system was instituted after federal troops left, and it lasted until federal troops returned.
January 12, 2012, 1:41 pmKirk Parker says:
Randy,
This happened because the slave states kept upping their ante… and then eventually lost big-time.
January 12, 2012, 6:35 pmRandy says:
DOMA is federal law which violates principles of federalism. I don’t see how removing violation of federalism violates federalism. You’ll have to explain that one to me.
As for Perry, the constitution is the supreme law of the land. If a state engages in a practice that violates the constitution, it is hardly a violation of federalism to correct it.
Federalism, as a principle, doesn’t mean that states can do whatever they like. It means they can do whatever they like *within the confines of the constitution*.
January 12, 2012, 7:15 pmbyomtov says:
Federalism, as a principle, doesn’t mean that states can do whatever they like. It means they can do whatever they like *within the confines of the constitution*
Indeed.
And ISTM that the incorporation doctrine – an expansion of federal power at the expense of the states – has increased rather than decreased freedom.
January 12, 2012, 10:22 pmKirk Parker says:
Wellllllll….
Not sure I’d so describe it–rather incorporation per se only extends constitutional prohibitions on federal actions to the states, so really only the federal courts have more power here. I can’t see a single thing that Congress couldn’t legitimately do before incorporation that they can after. Instead, most of the real harm in that direction comes from the infinitely-expandable commerce clause and from substantive due process.
January 12, 2012, 10:54 pmAnthony J. Lawrence says:
Agreed.
More assertions, and they aren’t at all obvious to me – again, with the exception of slavery, which seems to be the predominant issue overshadowing your lens and analysis.
January 12, 2012, 11:25 pmAnthony J. Lawrence says:
Another interesting point to add:
Both incorporation of the bill of rights and the gay-rights and marriage issues were products of the judiciary (federal and state), not the federal legislature (the federal legislature is trying to go the opposite way, in fact, in the latter case currently). So, of the two major examples actually cited (again, excluding slavery) by byomtov and mark field, the forces involved in protecting the rights of the individual were not those cited by Madison in Federalist no. 10 as the benefits of the enlarged sphere of the national republic, i.e., a refined field of electors, faction control, etc. It was rather the dues ex machina of the judiciary – hardly a Madisonian solution.
January 12, 2012, 11:37 pmMike Hansberry says:
Are you arguing the federal government should have had less power or more power in regards to slavery?
The tyranny of the many over the few has always been the problem, the question is which system tends to promote the most freedom? The next question, if one believes a federal system is an improvement over a national, is how much power to invest in the federal government?
January 13, 2012, 2:14 amMike Hansberry says:
Possibly not, but that might have been a worse outcome for Liberty as well. The Union with all its flaws looks pretty good in terms of protecting liberty when compared to other nations over the long run of history.
However, in a federal system, appealing to the next level of government is exactly how it is supposed to work.
The national government has done its share of abusing as well (fugitive slave act, Indian removal, imperialism, war mongering+drafts, and economic mis-management). Would the national governemnt have done more abusing were its scope of powers larger from the beginning? What would have stopped them? Who stopped Congress from screwing up social security and the federal budget so badly?
January 13, 2012, 3:12 amAJ says:
Federalism is about dividing power. By denying states the ability to legislate in certain matters in order to secure individual liberty, you are not shifting additional legislative or regulatory power to the national government (you are taking power away from more levels of government). So, a discussion about slavery is provocative, but it would seem to only be relevant if the federal government had assumed the power to regulate the slave market, say via the commerce clause (and then ban all slavery). But that’s not what happened. In the end, the Constitution was amended to forbid the practice. It’s the same thing with segregation. The power to segregate was shown to violate equal protection because separate was shown to always be unequal. The Congress did legislate in the Civil Rights Act, but that simply clarified the reach of Brown to avoid a continuous stream of court cases testing separate but equal with respect to public accommodations. The better test of federalism is the liberty to legislate on local matters as one sees fit – to craft rules and regulations that might fit a given locale. That is why it is so pernicious when Congress insinuates itself into clearly local matters and imposes a one-size-fits-all solution. Also, the invention of new rights by the Supreme Court using SDP causes it to act as a Supreme legislature and snatches state authority to legislate on complex and contested subjects. However one feels about abortion (is it a woman’s liberty or is it a liberty to be born?), having one side dictated will ensure that the solution will remain controversial.
January 13, 2012, 8:36 amJ. Aldridge says:
Not a quote of mine.
January 15, 2012, 4:08 amJ. Aldridge says:
Wasn’t it the Constitution that said NO (Article IV)?
January 15, 2012, 4:14 am