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Federalism and Consistency:

People sometimes argue that others — usually conservatives who have expressed some support for federalism — are being inconsistent: How can you argue for leaving topic X to state-level decision, but favor federal authority over topic Y? Such arguments can of course sometimes be apt. But often they seem to me overstated, (1) because they conflate different kinds of criticism of state action, and (2) because they mistake federalism (support for leaving many things at the state level, but deciding many others at the federal level) for a more categorical localism (support for leaving everything at the state level).

1. Let me begin by laying out several different kinds of questions that people can ask about whether something — and especially some matter of ostensible individual right — should be decided at the national level as opposed to the local level. (By local I'll usually mean "state," but similar questions can sometimes arise as to city/county-state relations.)

a. Should the federal Supreme Court protect a certain ostensible right throughout the nation, displacing contrary federal and state decisions? The answer here will often turn on how one reads the Constitutional text. Most federalists acknowledge that there are at least some such rights that are constitutionally protected, but they may legitimately disagree among themselves (and with those who don't much care about constitutional federalism) about which are protected, and how much.

b. Does Congress have the constitutional authority to protect a certain ostensible right by federal statute throughout the nation, displacing contrary state decisions? The answer here will turn on how one reads the grants of federal power in the Constitution, both the Enforcement Clause of the Fourteenth Amendment, and the provisions (especially broader ones, such as the Commerce Clause) of article I, section 8 of the Constitution. (A related question: Should the Commerce Clause be interpreted as presumptively prohibiting states from doing certain things that have an effect on interstate or foreign commerce, absent specific Congressional authorization?)

c. Should Congress exercise its authority to protect a certain ostensible right by federal statute? The answer here may turn on whether you think the claimed right really is morally proper (e.g., Congress shouldn't enact a statute giving parents the right to beat their children, even if it's within Congress's power to do this). It may also turn on whether you think there are practical or democratic theory reasons for resolving certain matters at the state level (e.g., the right solution may be different depending on different local conditions, the right solution will only be reached through state-level experiments, or there are special dangers in federal authority in this area) or at the national level (e.g., the actions of one state will substantially affect behavior in another state, or the claimed right is so morally imperative that we must protect it as broadly as possible).

d. Even if the federal government shouldn't step in, should people nonetheless urge all states to protect a certain ostensible right? One might, for instance, think that states have the constitutional power to restrict guns, punish various sexual practices, engage in religious speech, regulate economic activity in certain ways, and the like — but one might think that such actions improperly interfere with people's moral rights (even if not their federal constitutional rights), or yield various inefficiencies. As to other matters, one might think that states really should do their own thing, especially when one thinks there aren't really genuine claims of moral right involved, or if one thinks that diversity among states is helpful.

It's therefore important, when analyzing someone's arguments for consistency, to understand which argument they're making. There might be inconsistency in arguing for federal constitutional protection for sexual autonomy but arguing that gun rights questions should be left at the state level (though even there one can of course explain why one thinks that the Constitution should be understood as protecting one sort of individual right and not the other). But it's hard to see the inconsistency in arguing that there should be no federal constitutional protection for sexual autonomy (a level (a) argument), but that it's wrong for states to ban handguns (a level (d) argument) and that such handgun ban proposals should therefore be defeated in state legislatures.

2. More broadly, it's important to remember that few people are complete localists in the sense of believing that everything should be done at the local level, or even complete nationalists in the sense of believing that everything should be done at the national level. (Some people believe that federal courts shouldn't enforce any constitutional federalism-based constraints on what the federal government may do, which is to say that the federal government may nationalize all issues, subject only to individual rights objections; but even they don't generally think that the federal government in fact should nationalize all issues.)

Certainly "federalism" has always been understood as a commitment to preserving zones of authority for both the federal government and state governments (and likely partly overlapping zones to boot). At times federalists have stressed federal power more (consider most of the 1780s federalists) and at times state power more (consider most of the modern federalists), but that simply flows from the different issues involved at the time: Federalists arguing against supporters of very broad state power will take the more-federal-power side; federalists arguing against supporters of very broad federal power will take the less-federal-power side.

In fact, today's federalists probably have a broader view of the proper scope of federal power than most of the 1780s federalists had. They just tend to talk more about state power because today they think matters have swung too far in the direction of federal power.

So again one can't just say "If you're such a federalist on the Violence Against Women Act, why are you in favor of national rules governing gun manufacturer liability?" Federalist theory does support national rules in some areas (for instance, regulations of commerce that substantially affect the national economy) and local rules in other areas (for instance, punishment of noncommercial criminal activity).

One can certainly argue that federalists are mistaken about where the line should be drawn, or even inconsistent in drawing that line. But one needs to do that by concretely explaining why the line should be drawn in a particular place, or why two things must in any event be on the same side of the line — one can't just point to the federalist's supporting national solutions in some situations and state solutions in others and say "Aha! Inconsistency!" Federalism is all about supporting national solutions in some situations and state solutions in others. More broadly, I suspect that good judgment, left, right, center, or libertarian is all about supporting national solutions in some situations and state solutions in others.

3. All this may be obvious — but it's the sort of obvious that people miss. Pointing out supposed inconsistencies in others' positions is such fun that people tend to do it a bit too promiscuously. And sometimes, of course, pointing out inconsistencies is helpful: It may help persuade some people that their own philosophies should lead them to a particular result; or it may persuade others that a particular kind of position is inconsistent and thus shouldn't be given credence.

But we need to be careful in allegations of inconsistency (and especially of hypocrisy). Often the inconsistency is more illusory than real, or at least demonstrating it requires a lot more argument than critics actually provide.

UPDATE: My colleague Professor Bainbridge posts his take on a related issue. Quick excerpt: "I am an unabashed proponent of competitive federalism -- i.e., the idea that having corporate law regulated at the state level promotes competition between states seeking to attract corporations to incorporate in their state, which competition tends to lead to efficient legal rules. Does this mean I am ideologically constrained to support Spitzer's crusade even if I think he is more concerned with raising his profile for a widely-predicted future gubernatorial campaign than cleaning up the corporate swamp exposed by Enron et al.? I've been puzzling about that question for a while, and have finally concluded I can be a competitive federalist and still want Spitzer to shut down."

Medis:
Just a small point, but under (c), and under possible reasons for resolving a matter at a local level, you might want to include something like "there isn't an objectively 'right' solution, even as a function of 'local conditions,' so it would be good for different localities to adopt different solutions so that citizens can 'vote with their feet'".
9.28.2005 3:42pm
frankcross (mail):
This is all true, but it doesn't mean that hypocrisy is not rampant. Conservatives favor conservative action at the national level but not liberal action. Liberals vice versa. It seldom has much to do with the legitimate principles that you raise.
9.28.2005 3:45pm
Medis:
frankcross,

Yep, and even just this blog post is plenty long and complicated enough to find all the wiggle-room you need to justify such forum-shopping. All of which just goes to show that claiming to be a "federalist" is pretty much empty rhetoric these days.
9.28.2005 3:51pm
SimonD (www):
As regards the sub-question in question 1(b), if you mean the "negative commerce clause", yes I believe that the breadth of the commerce clause limits (if not quite outright precludes) the ability of states to interfere with interstate commerce.

I am acutely aware that this view brings me into sharp disagreement with Justice Thomas -- see Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564 (1997) (Thomas, J., dissenting) -- and fairly sharp disagreement with Our Hero -- see Tyler Pipe Industries v. Department of Revenue, 483 U.S. 232, 254 (1986) (Scalia, J., dissenting). I am not persuaded. However, I am inclined to disagree, and I think my views are in alignment with the work on this subject done by Prof. Brannon Denning. See particularly The Dormant Commerce Clause Doctrine and Constitutional Structure and Confederation-Era Discrimination Against Interstate Commerce and the Legitimacy of the Dormant Commerce Clause Doctrine.
9.28.2005 4:10pm
Noah Snyder (mail):
I think a lot of liberal frustration with federalism is rooted in the fact that, by coincidence of history, there are no states that are as liberal as Alabama or Kansas is conservative. There's no Northern California, no D.C., no Western Oregon. No British Columbia. Mass. is too catholic and too sanely New Englandy to push the envelope in the way one of those non-states would.
9.28.2005 4:15pm
Dilan Esper (mail) (www):
I agree with Professor Volokh's analysis of the issue. But I think that some of the frustration about federalism comes from the fact that for many people, the argument is completely situational and not a product of any detailed thinking about the structure of government.

In other words, you get conservatives who cheer decisions that prohibit the federal government from redressing violence against women, but who in the next breath advocate a national ban on partial birth abortion without even acknowledging that there is a federalism issue implicated by such litigation.

So while I agree that everyone draws distinctions, and that distinctions have to be drawn (and that Professor Volokh's categories are very helpful in this regard), that's different than simply trotting out federalism as an objection whenever Congress does something that one doesn't agree with.
9.28.2005 4:28pm
mdemeusy:
Thank you Professor Volokh. Understanding of this issue is much needed because it is hardly, if ever, explained in law school. There seems to be little interest.

This past spring, my law school (Seattle U) offered an Advanced Con. Law on Federalism/Separation of Powers, and I was one of only five students in the class.
9.28.2005 5:02pm
Justin (mail):
I think this adequately sums up the problem with federalism (as opposed to, say, the term that's escaping me which is the model of "European federalism"). Volokh's (quite correct) description of federalism is so ephermal (word of the week) that it allows any political entity to nicely tie things they like which easily have national solutions (and this may often depend on the national political mood, since consistency over time is not required), and state and local issues for those which they want to break from the national status quo. Thus, since right now the federal government's natural state is not criminalizing guns or abortion, conservatives often feel gun rights need a national solution but abortion should be a local one. Conversely, liberals have lately argued that abortion should be a national issue, but (when considering DoMA), gay marriage should be left up to individual states.

In other words, Volokh's description leads precisely to the adoption of what conservatives tend to criticize most about liberal jurisprudence: its so dependant on a multitude of difficult to discern values that one can interpret it to get to any prferred policy outcome.
9.28.2005 5:39pm
Justin (mail):
PS "But we need to be careful in allegations of inconsistency (and especially of hypocrisy). Often the inconsistency is more illusory than real, or at least demonstrating it requires a lot more argument than critics actually provide."

That assumes, almost explicitly, that one does not first make the decision what should be left to the states and then find the logical reasoning afterwards, which may have nothing to do with the ACTUAL reasoning to come to the decision. (i.e. basic tenant of legal realism)

PPS Professor Bainbridge completely makes my point. It's painfully obvious he likes state regulation of corporations because its ineffective (notice his focus on the race to the bottom prisoner's dilemna he celebrates in order to attract or hold onto businesses), though it's very easy to find superficially consistent reasons why this is not the case. When contrasted between an issue where his superficial reasons and his actual reasons are in conflict, he ultimately chooses to support his actual reasons (he likes less regulation), but focuses on MORE superficially consistent reasoning (though almost by definition inconsistent with his original superficial reasoning).

I should also point out to Professor Bainbridge that it's at best amusing, given the systems of Democracy, to say that someone's activity is based on the fact that it is very popular, and therefore should be "shut down". I'm unsure if federalism can have ANY valid support as a comprehensive theory or government (as opposed to an effort to cripple its effectiveness) ABSENT some tying of the state's determinations to what its citezenry prefers.
9.28.2005 5:51pm
Challenge:
"In other words, you get conservatives who cheer decisions that prohibit the federal government from redressing violence against women, but who in the next breath advocate a national ban on partial birth abortion without even acknowledging that there is a federalism issue implicated by such litigation."

If I were a member of Congress I'd vote for the PBA ban, if I were a member of the Supreme Court, I'd probably strike it down (as well as Roe v. Wade).

The abortion issue is more complicated than you let on, because the Supreme Court has not only created a "right" to abortion when there is none, but it has recently struck down partial birth abortion bans. Congress is the only political branch which can respond to this insanity. The states have tried and they have been rebuked. Congress is in effect challenging the Supreme Court, calling their bluff on the "constitutional right" to partial birth abortion. Do you really want to fight the American people so a few fringe doctors can murder viable babies? Most abortions are far from what I would describe as murder, but PBA, because of the lack of medical purpose and lateness in which it occurs, is essentially legalized infanticide.

In a word, the delicate balance of the "separation of powers" becomes deformed when one branch is abusing its constitutional authority (in the case of PBA and abortion, that branch is the Supreme Court). I think it may be justifiable when other branches try to rein in that abuse, even if crossing some lines on their own.
9.28.2005 6:11pm
randal (mail):
frankcross, Medis, Dilan:

Exactly right. The inconsistency (or rather, lie) comes about when you claim to support a position because of federalism concerns when really it's the issue that's driving your idea of federalism.

Federalism has become little more than a defense of specific issue positions. Rarely do you see it employed as an issue-agnostic philosophy.

Eugene, you're correct that there's no necessary hypocrisy. But that's an uninteresting point to make. The real point is, people today draw their personal line between national/local control based completely on the issues at hand. If federalism lets you draw the line where ever you want, then federalism is a totally empty concept.
9.28.2005 6:18pm
cpugrud:
I agree that the general inconsitency derives from passionate motivations regarding pet causes. While people are much closer to elected representatives at the local and state level, and more able to push changes through at those local levels, they do so under the danger of being overruled at the federal level.

I tend to build from the bottom up when searching for that line. My summarization of the intention of the bill of rights is "You are free to live your life however you may please so long as you do not infringe on the rights of others to do the same." Something so simple necesssarily leaves a lot of gray in specific cases, but it's a place to start.

Should the role of the federal governement be to only set the minimum standards, leaving the states to experiment? I would suggest that the founders intended to states to act as marketplaces of ideas placed into action, so states could experiment within reasonable boundaries and the people could decide what worked best, either with their votes or their feet.

But you need to start farther up the chain, with the Constitution and the Bill of Rights. Rather than setting the minimum standards, I would argue that the Constitution establishes the rules of the game, and the Bill of Rights sets aside the sacred cows that may not be sacrificed.

While the federal government sets the minimum standards by which all states must abide, the Bill of Rights sets the maximum boundaries which no states must exceed. There is certainly a terrific range of grey between those two extremes.

Over the last 100 years there has been a tremendous shift of power and responsibility from the states to the federal government. I believe this does a tremendous disservice to the populous by removing power, control, and responsibility far away from the average citizen. Some senators represent millions of voters, how can any one of those voters hope to actually influnce a senator's position?

Advocating pet policy can be very effective at a local and state level. Look at the numerous successful initiatives involving medical marijuana. But, if you really want to make sure your pet policy stands successful, you have to push it through at a federal, or even more preferably, judicial, level.

Just a thought.
9.28.2005 7:05pm
Splunge (mail):
Mr. Volokh could further adduce that an argument can be made that criticism consisting largely of accusations of hypocrisy strongly suggests a lack of any substantial moral merit.

That is, if all you can complain about is hypocrisy, people may reasonably infer you have no relevant ethical principles, the application of which would underwrite more potent and sincere criticism.
9.28.2005 7:09pm
Wince and Nod (mail) (www):
No way, Justin. The fact that federalism is a general solution and that federalists often choose different specific solutions does not mean that advocates of federalism are actually results oriented. One could make the exact same argument that you have just made about democracy. Democracy is a general solution. Advocates of democracy often choose different specific solutions - like a judiciary which is allowed to overrule a democratic majority. That doesn't mean that advocates of democracy are results oriented.

I prefer federalism because I believe that the people are better able to influence local politicians than those far away. I am appalled by the federal Partial Birth Abortion Act, even though I am pro-life, because I think it is unconstitutionally based on the Commerce Clause. But I would support federal legislation making it a crime to transport a minor across state lines to avoid state parental notification laws. That is a proper federal concern.

Bainbridge's example is beautiful. I support state regulation of corporations. I don't support all state regulations of corporations. See the difference four letters and blank make?

Yours,
Wince
9.28.2005 7:25pm
BobVDV (mail):

Exactly right. The inconsistency (or rather, lie) comes about when you claim to support a position because of federalism concerns when really it's the issue that's driving your idea of federalism.


Maybe I'm just the token liberal here, but I remember all too well that Alabama (state motto: "We Dare Defend Our Rights") et al. justified segregation as a states' rights issue. I think much liberal angst over federalism (Federalist Society?) stems from the (mis)use of "States Rights" against the civil rights movement.
9.28.2005 9:18pm
David M. Nieporent (www):
In other words, Volokh's description leads precisely to the adoption of what conservatives tend to criticize most about liberal jurisprudence: its so dependant on a multitude of difficult to discern values that one can interpret it to get to any prferred policy outcome.

Sure, Justin, if by 'values' you mean "the text of the constitution." That's what distinguishes it from "what conservatives tend to criticize most about liberal jurisprudence."

The difference between guns and abortion isn't "values," but constitutional text vs. the sweet mystery of life.
9.28.2005 9:19pm
Justin (mail):
Wince, you're defending a half-decent poin, but its not the point I was addressing. Bainbridge, given the context, believes the federal government can and should pre-empt Spitzer. Volokh, given the context, believes that certain issues based on a fairly flexible set of variables can be either dealt with at the federal level or the state level without a natural hypocracy. What you're arguing for is the European concept that I can't think of the name of (com-something-or-other, I know bainbridge has discussed it but got the concept wrong). The problem is, this isn't federalism.

David, here is the FULL TEXT of the 10th amendment:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.


Enjoy, using the text and the text alone, explaining how various modern drug, medical, contraceptive, and sexual orientation issues fit into the text of the 10th amendment. Or stop using silly, meaningless, 4th grade, out of context statements that make you look like you got your law degree from Tom DeLay speeches.

This isn't a 2nd amendment discussion, so I'll ignore how you can read the 2nd amendment to permit your handgun but prohibit Mohammad Atta's nuclear warhead (the text, if anything, would support the opposite). But please, if you're going to respond to my points in a superior tone, please, have something vaguely intelligent or relevant to say.

Splurge, we're not arguing hypocracy here for its own sake. We're arguing something akin to hypocracy, actually: that "Federalism" provides no real useful guidance at all, and that its application depends primarily/solely on the preferred policy outcomes of its advocates. Furthermore, to the degree "federalism" provides "some" useful guidance, its susceptability to manipulation causes more harm than good as a limiting principle.
9.28.2005 10:13pm
Justin (mail):
Subsidiarity!!!!

That's the concept I was thinking of.

I do my best thinking in the shower :).
9.28.2005 10:21pm
Daniel Chapman (mail):
That explains why your arguments are all wet :)
9.28.2005 11:10pm
SimonD (www):
Enjoy, using the text and the text alone, explaining how various modern drug, medical, contraceptive, and sexual orientation issues fit into the text of the 10th amendment.
They are reserved to the states, who may act in whatever way they see fit provided that action does not fall afoul of their own constitutions (in which case they may be challenged in State court) and provided it neither abridges the priveleges or immunities of a U.S. citizen (pricipally, the first eight amendments) nor provides disparate protection to various sub-groups of its citizens. IMHO.
9.29.2005 11:03am
Medis:
SimonD,

It seems to me that your interpretation amounts to cutting off the Tenth after "respectively".
9.29.2005 11:45am
Unnamed Co-Conspirator:
Justin, what does Hippocrates have to do with federalism and will you explain what you mean by Hypocrasy? As near as I can tell, given the topic here, it's a Hypocratic [sic] position on federalism. I had never heard it mentioned before. Silly me -- I thought Hippocrates was just a physician.
9.29.2005 12:04pm
Medis:
Although making politicians swear to "first, do no harm" is not a bad idea.
9.29.2005 12:50pm
Justin (mail):
Simon, thanks for not answering the question at all. I mean, if that's the answer, then how the hell did Randy Barnett lose? Oh yea, you forgot to embue any meaning into the terms "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states" and simply started with the assumption that your pet causes all qualify.

Coconspirator, my spelling sucks. I don't care. If your superior spelling makes you believe you are also superior in all other walks of life, more power to you.
9.29.2005 3:34pm
Roy Lofquist (mail):
Dear Sirs,

It is impossible to have a constitutionally rooted debate about federalism because of the 17th amendment. The 10th reads more like a political afterthought to come up with a round number. The linchpin of federalism was the provision that the senators be appointed by the state legislatures. This is stated in a number of contemporary writings. Reread the Constitution and substitute "the ambassadors of the sovereign states" anywhere you see senate or senators.

Regards,
Roy
9.29.2005 6:45pm
Wince and Nod (mail) (www):
Justin, Simon did answer the question. He provided the principle and left the details as an exercise for the reader. What do you expect when you ask a question on a blog which would require tens if not hundreds of pages to answer? Well, all right, you probably want an executive summary.

Me, I'd like to point out that drugs, medicine, contraception and sexual orientation were all known in Colonial times. We've had medicine, drugs, contraception (of varying efficacy) and sexual orientation since ancient times. The condom - a pretty darn effective contraceptive - was invented in the sixteen century. Since they aren't mentioned in the Congressional powers, they are and were subject to regulation by the states. Ask something hard.

Oh, and the ancients had (1) religion, speech, writing (including pornography, satire, libel, political advertisements), peaceable assemblies, petitions (2) armaments, (3) soldiers and houses ... do we really think these political questions are new? Most technology has an ancient counterpart, and people haven't changed at all.

Yours,
Wince
9.29.2005 7:34pm
Tom Perkins (mail):
Hello Mr. Lofquist, you wrote:


It is impossible to have a constitutionally rooted debate about federalism because of the 17th amendment. The 10th reads more like a political afterthought to come up with a round number.


And this would be true if it were the only portion of the document which dealt with relations between state and national authorities, or if it modified them all into inconsequentiality (which I agree it may yet do). There are other portions of the document which the 17th does not modify, for example, the 14th amendment and the "guarantee of republican" government clause.

Their meaning is unmodified by the 17th, although for their meaning, their effectiveness, they are now entirely dependent on the judiciary structurally and the general electorate politically.

I am unaware of what all writings there may be which expand on what was thought of when the "guarantee of republican government" was written, but I have the impression they meant constitutionally limited representative democracy. This implies that the states now have no power to pass laws unless they are specifically given the power to do so in their constitutions, and still have no power to do so if their constitutions abrogate the enumerated rights of the national constitution.

Absent contradictory originalist evidence, this may be a constitutional basis for Mr. Barnett's presumption of liberty.

Yours, TDP, ml, msl, &pfpp
9.30.2005 2:18pm
Roy Lofquist (mail):
Dear TDP,

What the 17th did was to take the decision as to what is a state right away from the states and invested it in the judiciary which has studiously avoided the issue.

Regards,
Roy
9.30.2005 3:54pm
Tom Perkins (mail):
Dear Roy,

Not quite, the decision is placed much as before, with the intervening layer of self interest found in state legislators removed. This does mean state governments now have no voice in the federal government, and this may vitiate federalism--however ths judiciary could still maintain it, and the populace could vote into office legislators who will insist on it. That hasn't changed.

That said, I wish heartily for the repeal of the 17th amendment.

Yours, TDP, ml, msl, &pfpp
9.30.2005 4:21pm