Malcolm Feeley and Edward Rubin have published an important new book that expands on their previous scholarship arguing that "federalism" - defined as a constitutional guarantee of autonomy for subnational governments - is undesirable in the modern United States. For a sympathetic summary of the book's thesis, see this post by Sandy Levinson. Unlike some other critics of federalism, Feeley and Rubin are not advocates of comprehensive political centralization. Rather, they argue that all the putative benefits of federalism can be better achieved through what they call "decentralization." Even if states lack any constitutional guarantees insulating them from control by the central government, a rational central legislature can allow certain decisions to be made by the states as a matter of policy. Thus, if state officials would make certain decisions better than Washington, Congress can simply allow them to do so as a matter of policy. There is no need, Feeley and Rubin contend, for constitutional guarantees of federalism. Indeed, such guarantees are actually harmful, since they might hamstring congressional efforts to respond to changing conditions.

The major flaw in Feeley and Rubin's argument is that Congress has little or no incentive to pursue anything approaching optimal levels of decentralization. To the contrary, there is likely to be a strong tendency to expand federal power far beyond that point. Federal officials have strong incentives to expand the scope of their power, and numerous interest groups would like to impose uniform rules that prevent dissenting states from going against policies that they advocate. Some scholars argue that overcentralization can be prevented by state governments exercise of their political influence, since they can lobby Congress to limit its infringements on their powers. However, as John McGinnis and I discussed in this article, state governments themselves often have strong incentives to support overcentralization, especially if expansions of federal power are coupled with increased federal subsidies to the states. Others claim that the growth of federal power can be checked by voters, who might punish excessive centralization at the ballot box. But, as McGinnis and I explain, most voters are "rationally ignorant" and have little or no understanding of federalism issues; they are therefore unlikely to effectively check the overexpansion of federal power.

More fundamentally, Feeley and Rubin's argument can be used to justify eliminating virtually any constitutional restraints on government power. If Congress can be trusted to rationally determine the optimal use of its own authority, then we don't need constitutionally mandated protection for speech, religion, the rights of criminal defendants, and so on. Even if there were no Fourth Amendment constitutional restrictions on the use of search and seizure, for example, a rational Congress can enact appropriate statutory limits on law enforcement authority. In reality, however, constitutional restrictions on government power are needed precisely because the government is not always trustworthy, and is prone to various systematic pathologies. Overcentralization is one of them.

Some would argue that limits on central government power have few or no benefits, and that federalism is undesirable for that reason. That is an argument for another day (or at least another post). Feeley and Rubin, with their support for "decentralization" don't fall into that camp. Unfortunately, they fail to prove that Congress can be trusted to promote decentralization without the imposition of constitutional limits on its authority.

In their important new book criticizing federalism, Malcolm Feeley and Edward Rubin argue that federalism (defined as constitutional guarantees for state autonomy) is unnecessary in the modern US in part because modern Americans no longer feel any major sense of identification with state governments. Feeley and Rubin concede that federalism might be a useful institution in societies where state boundaries coincide with major ethnic or religious divisions. For example, Canadian federalism allows the French-speaking minority to have an autonomous enclave in Quebec, where they can avoid domination by the English-speaking majority. French-speaking Quebecers identify with Quebec as much or more so than with the Canadian federal government. By contrast, Feeley and Rubin claim, most modern Americans identify as "Americans" first and foremost and have little or no loyalty to their states. I live in Virginia, but I feel no meaningful attachment to the state government in Richmond. My loyalty to the state of Massachusetts, where I grew up, is largely limited to rooting for Boston sports teams.

With a few exceptions such as Mormon identification with Utah and native Hawaiians' affiliation with Hawaii, Feeley and Rubin are largely correct in concluding that modern Americans feel little loyalty to their states. But they are wrong to claim that this undermines the case for federalism. Indeed, in one important respect it actually strengthens it. As I have discussed in various articles (e.g. here and here), one of the main benefits of federalism is interjurisdictional competition. States compete with each other to attract taxpaying workers and businesses; this competition gives them incentives to adopt good policies that will be appealing to the population, and also promotes desirable innovation in public policy. A state that makes a beneficial innovation will have a leg up on its competitors. The ability of citizens to "vote with their feet" is one of the main advantages of federalism. Obviously, foot voting is difficult or impossible in a situation where there is a unitary federal policy that applies to the whole country. In that situation, we can only vote with our feet by leaving the United States entirely.

As John McGinnis and I explained in this 2004 article, declining public identification with state governments actually increases the benefits of foot voting. A citizen who strongly identifies with Virginia might hesitate to leave even if another state is otherwise vastly more attractive due to its superior public policies. But a person who feels little or no loyalty to her state won't suffer from any such inhibitions. To the extent that modern Virginians are more willing to leave than those of 100 or 200 years ago, state governments elsewhere have stronger incentives to woo them, and Virginia's state government has stronger incentives to adopt good policies that will convince them to stay. Once we recognize the importance of voting with your feet as a major benefit of federalism, it turns out that declining loyalty to state governments actually strengthens the case for limiting the scope of federal power.