Federalism and Freedom

Published date01 March 2001
Date01 March 2001
Subject MatterArticles
Federalism and Freedom
ABSTRACT: The argument for devolution of power to state and local
governments in contemporary Supreme Court cases regularly relies
on claims about the virtues of
federalism as a means of maintaining
individual liberty. This article explores the plausibility of the argu-
ment that supplanting federal with state authority is likely system-
atically to protect individual liberty. The article argues that if there is
viable argument for "federalism as freedom," it must go beyond the
that two governments are more repressive than one or that the
federal government is more inclined to curtail liberty than is a state
local authority. The plausible claims rely on the abilities of autono-
state governments to provide a competing source of norms and
to allow escape from oppressive laws. The availability of sanctuaries
in other states is a function of rights of interstate travel and territo-
rial limitations on state jurisdiction, which themselves require feder-
alized constraints on state and local autonomy.
Seth F. Kreimer is a professor of law at the University of Pennsylvania Law School,
where he teaches courses on constitutional law, constitutional litigation, and freedom of
expression. He clerked in the chambers of Judge Arlin M. Adams of the United States
Court of Appeals for the Third Circuit in 1977-78. After three years in private practice,
he joined the faculty of the University of Pennsylvania in 1981. He has written and liti-
gated widely in the areas of federalism and the constitutional rights to bodily auton-
omy, reproductive freedom, privacy, free expression, and interstate travel.

I T comes as no news to thoughtful invoked as a bulwark against federal
observers that the Supreme Court
efforts to prevent racial oppression,
is reviving judicially enforced consti-
political persecution, and police mis-
tutional limits on national power un-
conduct. The most recent spasm of
der the banner of federalism. On a
judicial activism has taken its toll on
number of fronts, a five-member ma-
protections against official discrimi-
jority of the current Court is moving
nation based on age, official appro-
systematically to substitute state for
priation of intellectual property, and
federal authority as enthusiastically
misogynist violence. On its face, fed-
eralism seemed to
as at any point in the Court’s history.
an odd candi-
In the past two terms, the Court has
date for the role of palladium of
invalidated six federal statutes as in-
consistent with its vision of federal-
Yet the end of the twentieth cen-
ism,l a rate unsurpassed since the ju-
tury has seen an emergence of some
dicial reaction against the New Deal
state legal regimes that provide rec-
during 1935-36. Earlier Courts
ognizably more protections to indi-
rooted constraints
vidual liberties than their federal
national power
primarily in claims about historical
counterparts. From medical mari-
fidelity to founding principles, the
juana in California to assisted sui-
cide in
&dquo;slogan ’Our Federalism,’ born in the
Oregon, from protections of
early struggling days of
minors’ rights to abortion in Florida
our Union,&dquo;’
and New Jersey, to access to hand-
or the legal status of reserved rights
of states. By contrast, the argument
guns in Montana, to gay partnership
for devolution of
Vermont, states provide pro-
power to state and
tections denied
by federal law.
governments in contemporary
This article will explore the plau-
cases regularly relies on claims about
the virtues of federalism
sibility of the arguments that the
as a means
of achieving other values. Prominent
process of supplanting federal with
state authority is likely systemati-
among these claims has been the
cally to protect individual liberty, and
proposition that federalism is impor-
the constitutional presuppositions
tant as a means of avoiding tyranny
that underpin the most plausible
and maintaining individual liberty.3
When I first encountered such
arguments, they seemed to embody a
peculiarly morbid variety of humor.
States’-rights federalism had, after
all, begun as a mechanism that found
its most prominent calling in defend-
Initially, if one defined liberty sim-
ing the &dquo;peculiar institution&dquo; of slav-
ply as freedom from government con-
ery against national intervention
straint, one might believe that cur-
(Scheiber 1996). It had underpinned
tailing the reach of federal power
the evisceration of Reconstruction.’
likely to increase the liberty
In my formative years as a lawyer
of citizens by limiting the number of
and legal scholar, during the late
sovereigns who may set constraints.
1960s and 1970s, it was regularly
If a particular activity, whether it is

abortion, marijuana use, or gun own-
authority in the last year alone.’ But
ership, is subject to potential regula-
it is not only business that benefits
tion by both state and federal author-
from federal supremacy. Where the
ities, the chances of governmental
federal government affirmatively
intermeddling might be thought to
seeks to constrain the state’s exercise
double. Where two sovereigns may
of its monopoly on coercive violence-
issue commands, before an individ-
by, for example, limiting the state’s
ual may engage in the practice in
authority to incarcerate mentally ill
question, she must comply with two
citizens in secluded institutions9 or
sets of rules. Interests seeking to
by constraining the authority of local
limit a practice can succeed by
police to abuse the citizenry at
obtaining either state or federal
large-federal authority unambigu-
ously protects personal liberty
But this perception is not neces-
In most thoughtful definitions,
sarily accurate, for under the
moreover, governments are not the
supremacy clause of Article VI of the
only threats to liberty. Allowing mur-
federal Constitution, federal regula-
der, rape, and robbery to go unpun-
tion can preempt the effect of state
ished reduces the amount of govern-
rules. If an area lies within the
ment constraint in society, but it is
sphere of federal competence, the
hard to envision the shambles of civil
federal government may reserve reg-
society in contemporary Sierra
ulation of that area for itself, and if
Leone or Albania as paradigms of
federal rules are more permissive
individual liberty. A reasonable
than the rules states may wish to
sense of liberty entails not simply the
impose, federal authority increases,
absence of government constraint,
rather than decreases, liberty. In the
but the absence of unjust private con-
founding generation, federal pre-
straints. The addition of federal to
emption liberated interstate steam
state and local authority to prevent
transportation from local impedi-
unjust private impositions, there-
ments;’ during the McCarthy era, it
fore, may systematically increase lib-
prevented enforcement of the most
erty either by providing greater sanc-
draconian of state sedition laws;’ in
tions and enforcement agents to
the struggles of the 1990s, federal
enforce common civil norms or by
preemption was invoked to bar
protecting against private violence
enforcement of California’s Proposi-
where state law does not.
tion 187 against undocumented
In this sense, the extension of fed-
immigrants.’ Strikingly, in recent
eral power has regularly protected
terms, even as the Supreme Court
liberty. Federal protections against
has begun to prune the scope of some
violence directed at citizens who
federal powers, it has aggressively
sought to vote or to organize for civil
employed preemption doctrine to
rights or to utilize integrated public
immunize a variety of business activ-
facilities clearly increased the liberty
ities from state regulation in areas
of those citizens-though at the cost
that remain within federal authority,
of decreasing the liberty of their pro-
invalidating four exercises of state
spective assailants. Conversely, in

the aftermath of Reconstruction, the
republic&dquo; was precisely that the vari-
Supreme Court’s decision that pri-
ety of cross-cutting factions within a
vate racial violence lay outside of the
larger polity makes oppressive tri-
province of federal authority effec-
umph of any one less likely (Rossiter
tively reduced the liberty of African
1961, Federalist 10, 78, 80, 83; Feder-
American citizens. More recently, the
alist 51, 324-25; Federalist 9, 71, 75).
removal of federal protections
And, despite periodic claims that fed-
against gender-motivated violence in
eral agents are more subject to cap-
United States v. Morrison 10 decreased
ture by special interests than are
the liberty of potential victims of
states due to the difficulty of national
those crimes.
organization by diffuse interest
If there is a viable argument for
groups (Rapaczynski 1985, 341,
federalism as freedom, therefore, it
386-88), there is certainly an ade-
must go beyond the sense that two
quate stock of examples of state-level
governments are more repressive
special interest oppression in Ameri-
than one.
can history-not least in the area of
race relations-to leave the issue of
whether state or federal govern-
ments are more disposed to protect
liberty at best a subject of
The most reasonable resolution of
second support for devolution as

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