Federalism and Freedom

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.

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