Liberal Federalism?

Richard Thompson Ford has an interesting article up on Slate, "The New Blue Federalists: the case for liberal federalism."  His thesis is that while federalism is most oft-used as a conservative tool of judicial activism, it may also serve liberals equally well.  It’s a challenging idea, but I can’t help but feel like it would ultimately be bad for the country.

Ford in his concluding paragraph argues, "let the red states experience more of the consequences of their political
ideology and the blue states of theirs."  IMHO, that’s another way of saying that reds and blues can’t be reconciled, and that our house should be divided.  While I may be a raging lunatic liberal, I don’t favor a nation where substantive rights vary as you cross state lines.  Disunity among the states is bad for liberal business, I think, because us liberal softies are (or should be) all about coming together for the common good.  Ford’s idea would permit the establishment of liberal strongholds in the coastal states at the expense of further alienating the rest of the nation.  If SSM and other ideas become rooted in the blues, what do you think the red states will do?  The net result could be a further tightening of liberties.

I like the idea of depoliticizing federalism; it’s a concept that should, ideally, work for both sides of the political spectrum.  However, in either camp’s hands, overreliance on state’s rights can lead to a fragmented and harsher America.


  1. Steve, you assume that there is one “common good” rather than 50 “commmon goods.” I think you have to distinguish those rights/interests that have no rational reason for being aborgrated from those that do.

    For example, clearly there is no rational reason for discriminating against African-Americans; that is a substantive right that should not “vary as you cross state lines.” Abortion, on the other hand, involves a balance of interests, and (I think) should be something the states decide. Some states are going to decide that the women’s privacy rights trump the right of the fetus, others are going to decide that the reverse is true. I think that gay marriage, medical marijuana, affirmative action, etc. all fall into this latter category.

    And I don’t understand your concern that “reds and blues can’t be reconciled, and that our house should be divided.” I don’t know how you support federalism (as it seems you do) and still think that a uniform union is the goal. Since Manhattanites and Tennesseans are very different people, I see no reason why every controversial issue should be decided the same way for both of them. Unless, of course, you think that there are no rational ways of disagreeing with your conclusion, which bumps you into the former category, above.

  2. Blaine, I guess I fall into the camp of those intrigued by federalism but wary of societal fragmentation. You could be right that Manhattanites and Tennesseans are very different people; but shouldn’t we try to have some sort of common system of rights and laws for all, rather than fiefdoms of conservatism and liberalism? I’m speaking in very general terms here, but overall I think there is something desirable in union and commonality of law amongst the States.

    I’m not sure that I buy the distinction you make between rational and irrational rights. I don’t think our system says that discrimination against african-americans is not rational; it just says that it is prohibited. Rationality has always appeared (to me at least) as a secondary argument as we seek to prohibit behaviors we deem reprehensible.

    And of course there is no rational way to disagree with me! There never is, Blaine, as you know.

  3. I still think the red states/blue states maps created by the electoral college votes don’t adequately represent the reality. This country is split pretty much down the middle. Yes Bush got a clear majority of votes this time and that shocked a lot of people who hated him. But most states are pretty purple with a slight majority going over to one side or the other.

    If the red state/blue state configuration actually worked, the blues would have a hard time merely because they are not standing on contiguous territory. Maybe that’s less of a problem for federalism though and more a problem for those who would like to secede from a nation that suddenly seems too religious. Again though, this perspective doesn’t work entirely for me … I think in the next presidential election things could very easily go the opposite way.

    If the Iraqis can have a successful election on January 30th, maybe they can teach us something about federalism.

  4. Steve, sure there is a value in uniformity and commonality for some things. But surely you think there are some things that people at a local level should be able to decide for themselves. You can either buy the justification that state and local governments should be federalist ‘laboratories’ where we can test out policy before applying it to the whole country, or you can buy the more fundamental freedom of people to govern themselves, even if they’re wrong.

    As to the irrational discrimination point, I think it’s pretty clear after the Boerne Section 5 line of cases (Garret, Kimel) that the Constitution only prohibits “irrational” discrimination. (see 111 Yale L.J. 1141, 1159) Maybe you think those cases are wrong, that it should be a CONSTITUTIONAL requirement to have a wheelchair ramp outside your business. I think that’s ridiculous.

    In any event, regardless of whether we label them irrational/rational surely you agree that there are contested substantive rights issues that are not open-and-shut, and that the ‘right’ answer should vary depending on who is being regulated. . . or do you?

  5. Blue federalism has been championed for awhile by people like Jonathan Rauch. I admit that I am often persuaded by these arguments. The sharpest criticism that I have heard are from people on the left (typically the far left) who lump everything under the banner of civil rights and then refuse to accept anything less then universal conformity.

    The most compelling aspect of this new federalism is that it allows for people/regions to be progressive without the sort of compelled ideological subjugation that is the result of the extreme right or left.

  6. Blaine, you’re of course right that there are substantive rights issues that aren’t open-and-shut cases. But is federalism and state-by-state resolution really the best answer we can come up with?

    I like the idea of experimentation in democracy, and I like the Brandeis line of thinking in that regard, but I don’t think that it can be accomplished successfully at a state level anymore, at least not with enormously populous states like California or New York — the laboratories are too large to have controlled experiments. Experimentation in my mind is best done locally; counties/municipalities. Unfortunately the states are too activist for their own good on an internal basis (i.e., New Paltz) for local labs of democracy to successfully exist, either. So what’s left?

    I don’t think the Section 5 cases are wrong in their result, but I don’t agree that we should be hinging permitted behaviors on their rationality; in my mind that’s a dead end that leads to post-discriminatory justifications. But hey, I am far from being a con law scholar on this point.

    As for the freedom of people to govern themselves, that’s a nice sound bite but results in anarchy (and I defy anyone to prove that Joseph Smith said it!!).

  7. p.s. blaine, I figured this post would draw you out of lurking….. :)

  8. Davis Bell says:

    I think all Americans can agree on the need to close off our northern border.

  9. Oh yeah, did I mention that I’m Canadian and that I have no real vested interest in this? Thanks, Davis :)

  10. Nate Oman says:

    The only problem with Steve’s critique of liberal federalism is that it is wrong. The point only becomes valid if one has a reason to think that by and large federal decision makers are more likely to get things right than state decision makers. However, if we think that federal and state decision makers have about the same liklihood of screwing things up, it seems that you should prefer state decision makers. It is a way of managing the risk, like a diversified stock portfolio.

    The mistake is to think that we are faced with a decision between absolutist rights and pragmatic experimentation. We are talking about politics — not political philosophy. There aren’t absolute rights anywhere in the system, just plain old fashion decision makers. Strip out the metaphysical nonsense and think about managing the risk of bad decisions. It seems to me that you should decentralize everything that can be decentralized.

  11. “The only problem with Steve’s critique of liberal federalism is that it is wrong.”

    Ahhhh…. I see. My law professors had similar complaints.

    Nate, where are you getting your basis for claiming that state and federal decision-makers are equally capable of getting things right/screwing things up? It seems to me that there’s a presumption that when rights really matter or when the potentiality for screw-up is greatest, that’s when the federal gov’t intervenes, i.e. Jim Crow.

    Whether you strip out the metaphysics or you don’t, I don’t agree with your comparison of state intervention to diversification of risk. Are you saying that when the states run themselves, the diversity of result means that there’s a higher chance of somewhere, someone’s getting things right? That logic doesn’t work for me; market risk and treatment of rights aren’t behaviorally analogous. The analogy also leads to an unacceptable result when we’re talking about substantive rights; a loss on a part of your stock portfolio is not analogous to someone’s rights being ignored, no matter how distanced you want to be.

  12. Nate Oman says:

    Steve: The problem is that you are assuming that the federal decision makers will always side with protecting the proper set of substantive rights. However, if you really do think that the U.S. is sliding into a dark age of facist dictatorship — Guantanamo Bay, The PATRIOT Act, evangelical Christians VOTING!, the end of civilization as we know it, Reaganite federal judges destroying the constitution, etc. etc. — then it seems to me that federal decision makers can screw things up just as badly. The difference is that if you place your faith in federal decision makers you have a single, global point of failure (if I can switch from investing metaphors to engineering metaphors). Sure a state government can really screw things up, but they can only screw them up in a relatively limited area. In contrast the federal government can screw things up everywhere.

    Notice, this argument is indifferent to the particular outcomes that you desire. It simply requires that you make a second-best decision in the face of a world filled with imperfect decision makers.

  13. Nate, but isn’t the fragmentation of rights that could result an undesirable outcome in its own right? In my mind that goes a long way towards promoting unified approaches to legislation.

    Plus, isn’t the federal system more engineered to take input from a variety of sources and to spread decision-making over a broader group than a particular state? But I don’t want to descend into a which-has-a-better-system debate; we all know the Federal system is better. Have you ever tried to use the bathroom in a state courthouse??

  14. Nate Oman says:

    Steve: My argument is not that state decision making is better than federal decision making. I have worked in political offices at both the state and the federal level. Niether inspired me with great faith in government. My point is purely about risk.

    I suppose that there might be some structural argument that federal decision making is better than state decision making. This, for example, was Madison’s argument in Federalist No. 10. Maybe Madison is right, although it worth remembering that the “extended republic” whose virtues Madison lauded had a population roughly equivalent to modern Brooklyn.

    However, even if federal decision making is marginally better than state decision making it would have to be substantially better in order for the substantive benefits of centralized control to counterbalance the ability of decentralized decisions to mitigate single point of failure risk.

  15. Nate, you’ve failed to address my bathroom point.

    I am uncomfortable in applying strict risk-based analysis to discussions of rights and freedoms; perhaps it is a sense again that diversification and multiple points of failure, while good for engineers and investment managers, aren’t inherently desirable to politics. Naturally, I have no data to back up this supposition! Maybe it’s because I view any failure in this area to be unacceptable?

    I would also point out that the multiple points of failure analogy is also inapplicable here, because in engineering we’re talking about redundancies to keep a single plane aloft, while you’re talking about one person having certain rights that another would lack. For your analogy to really be spot-on we’d be talking about multiple safeguards for the rights of a given individual.

  16. Nate Oman says:

    1. By the bathroom criteria, the world should be ruled by McDonalds.

    2. If you think that failure is bad, don’t you want a system that on average produces less failure rather than bad failure. It seems to me that you are contrasting a world in which state governments screw up (namely the world that we live in) with a world in which the federal government does not screw up (namely a world that we DO NOT live in). The real comparison is between a world where states screw up and feds screw up. The option that I am proposing is NOT the best solution in any possible world. It is a second best solution appropriate for a second (or third) best world.

    3. Multiple points of failure can be about building in redunency or about localizing the effects of failure. You are right, however, that the analogy is not perfect. Analogies seldom are. That is why they are analogies. They are like the thing they are compared to, rather than being identical to the thing that they are compared to.

  17. Last_lemming says:

    It seems to me that you should decentralize everything that can be decentralized.

    Sure. That way, California and New York could have refused to participate in the invasion of Iraq and the whole thing might have been called off for lack of resources. Sounds like successful risk management to me.

    (Actually, I am more federalist than most liberals. But some things just belong at the national level.)

  18. “They are like the thing they are compared to, rather than being identical to the thing that they are compared to.”

    …. except your your analogy, which is neither :)

    …. and the world isn’t ruled by McDonald’s? I refer you to Jose Bove’s classic, “Le monde n’est pas une marchandise”.

  19. Lemming, no one is saying that there should not be federal law in foreign affairs. Obviously there are areas where the need for national uniformity trumps the benefits of federalism, but we (federalists: the defenders of the constitution as prophesied by Joseph Smith :)) think that should be limited to those areas that are absolutely necessary.

    and yes, Steve, there’s nothing like a nonsensical attack on federalism to pull me out of lurking ;)

  20. Blaine,

    Your comment has me wondering in all seriousness to what extent do you see yourself and your fellow federalists as defenders of the Constitution as prophesied by Joseph Smith?

  21. Matt, the Joseph Smith comment was not meant to be serious. I certainly don’t think that Joseph Smith saw the Federalist Society, led by High Priest Orrin Hatch, in that vision.

    Joseph actually said: “Even this nation will be on the very verge of crumbling to pieces and tumbling to the ground; and when the Constitution is upon the brink of ruin, this people will be the staff upon which the nation shall lean; and they shall bear the constitution away from the very verge of destruction. ” [spelling and punctuation modernized] (Dean C. Jessee, “The Historian’s Corner” BYU Studies Vol. 19, No. 3, Spring 1979, p. 392)

    I think it’s an interesting question as to what Joseph did mean, and I’m not sure what I think about it. It seems that Joseph meant that the Constitution is important, even inspired, and that whatever is inspired about it is going to be (or is being) challenged and that members of the priesthood are to save it.

    I haven’t figured out what exactly it is that is inspired about the constitution, let alone how members of the church are supposed to “bear the constitution away from the very verge of destruction” to have a really strong opinion on the matter. I am certainly interested and would welcome a thread on the topic so that other more enlightened thinkers than I can weigh in.

  22. Note Nate’s recent post on T&S on a similar/related topic

  23. Joseph Smith is quoted as saying:

    . . . And he taught us relating to the Kingdom of God, as it would become organized upon the earth through “all nations learning war no more,” and all adopting the God-given constitution of the United States as a Paladium [sic] of Liberty and Equal Rights. in Johnson, Patriarch Benjamin F. “An Interesting Letter from Patriarch Benjamin F. Johnson to Elder George S. Gibbs.” 1903. Ts. Americana Collection. Harold B. Lee Library. Brigham Young University, Provo, UT. And in his book I Knew the Prophets. It was recollected to be during a meeting of the Council of Fifty.

    This has been subsequently quoted by N.B. Lundwall, D.M. Quinn, and D.Q. Cannon.

  24. I wrote my own blog about this:

    I don’t see how any liberal could ever support federalism that extended to civil rights and liberties. I don’t think states should have the right to determine rights and liberties (like abortion, anti-discrimination, etc.), unless they want to *add* to them (like medical marijuana). Otherwise, it is the exact same principle as allowing states to determine if they want slaves or not. Federalism might be constitutional, but so is the federal government protecting the rights of all American citizens.

    However, on economic issues, I can see how federalism could be recourse for liberals, given the current political climate. I don’t see why we shouldn’t embrace diverse solutions. However, I don’t see how this can be a lasting ideology. The reason conservatives abandoned federalism is because they become the majority on the national level. Once liberals are back in charge, will they resist doing the same? I don’t think that’s realistic.

    But I think these are vary interesting ideas that need to seriously be explored more by liberals as new avenues for progressive change.

  25. Tom Manney says:

    I hate it when I’m late to the ball.

    Steve, accepting that red states and blue states should be allowed to go separate ways does not mean that never the twain shall meet. We can be reconciled — just not any time soon, so let’s make the most of a lousy situation.

    Philosophically, I don’t agree with federalism. As a liberal, I regard people higher than state. But I have been thinking a lot of about a liberal federalism — since I enjoy some of its fruits, living in California — and I’m all for it since it’s the best we can hope for right now.

    I’ve never shared the my fellow LDS’ reverence for the U.S. Constitution. I think it’s chock full of goof-ups. The 1st Amendment is mischievously vague. The 2nd Amenment is laughable. And so on. This is not to say this it isn’t an excellent document, but it is only correct so far as it translatable. And logical too. The absurdity of the Constitution is particularly tragic with respect to the distribution of senators and the electoral college — both of which disenfranchise blue state votes and have made a HUGE difference to which parties were in power for the last ten years at least.

    Due to my disenfranchisement, an impish part of me can’t help but feel somewhat entitled to thumb my nose at the regime which enjoys so much illegitimate power. Bring it on: pot cultivation, gay marriage, socialized health care, Kyoto Accords on a state level. (And here in the West, we have the added advantage of a highly supportive 9th Circuit Court of Appeals.) I’m for anything which increases civil rights and expands fairness, improves conditions for working classes, and steps up efforts to heal the earth. If we can’t seek these things for all Americans, let’s at least seek them for those we can.

  26. So federalism is nothing more, for any political perspective, than a chance to get power whereever you can?

  27. Tom Manney says:

    You say power; I say change. I’m not trying to be philosophical about it, just pragmatic in times that call for a strong dose of pragmatism.