Federalism Akimbo

I adore James Bond movies, but that doesn’t mean I like all the ways in which the franchise has been used. The same goes for delicious bacon. It’s great, but it isn’t right for every situation. Sometimes it’s just plain wrong.

I’m thinking about the misapplication of good things because of what’s happening to federalism in the United States. For a large, diverse nation such as ours, a federal republic in which the states are the sovereign building blocks of the national government is the best way to ensure liberty and “domestic tranquility.” But that doesn’t mean every way that concept is applied is good. Indeed, its misapplication and abuse can undermine the very goals our system was implemented to achieve.

Federalism prevents the consolidation of power in the hands of too few people and creates space for Americans of different beliefs to live in different ways. It’s very much in keeping with our anti-majoritarian system of government. Instead of having all power flow to one central government, we have 50 state-level centers of power that can act as counterweights to Uncle Sam. Divided power is a great protector of freedom. 

The part about the space for differences, though, gets trickier. Progressive hero Justice Louis Brandeis led the way to creating what we now call the concept of “laboratories of democracy.” In a 1932 case, the still-conservative court ruled that Oklahoma didn’t have the right to require licenses to sell ice. The decision was that it was arbitrary interference with the federal constitutional rights of the individuals. Brandeis, dissenting as part of the ascendant progressive minority, argued that states should be given room to experiment with policies that bump up against individual rights: “[A] single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”