Laboratories of Liberalism: The Insufficiency of Federalism

“American libertarians seem to have a fondness for federalism that strikes me as odd,” says Rick Hills , a law professor at New York University, “So why do American libertarians think that federalism is consistent with their commitment to individual liberty?”

Why not, instead, support a strong national government that can suppress subnational trade wars and protect a robust set of national liberties? What’s the payoff, in terms of individual liberty, from protecting subnational jurisdictions’ exclusive jurisdiction over certain topics? In my own view, federalism bears very little relationship to libertarianism.

Hill’s view may initially appear counterintuitive but I think his point if valid. Liberals oppose federalism when they should favor it and libertarians favor it when they could benefit from a strong federal government.

A related question is why do American conservatives think that federalism is consistent with their philosophy of governance? Federalism can, as often as not, be used to justify the implementation of a liberal policy agenda. For example, the health reform plan that Gov. Mitt Romney instituted in Massachusetts’s is very similar to Obamacare. Romney defended his plan by saying “the states were designed to be the laboratories of democracy.”

The use of the clichéd “laboratories of democracy” line is troubling. As federalism scholar Michael Greve notes, Justice Louis D. Brandeis’ “famous dictum had almost nothing to do with federalism and everything to do with his commitment to scientific socialism.” Indeed, the problem with the view of states as “laboratories of democracy” is that it is more applicable for instituting socialism than for advancing conservative principles.

While some forms of federalism are defensible ( Ramesh Ponnuru is one conservative that gets it right), I believe that it is ultimately inferior to other principles of governmental demarcation, such as subsidiarity or sphere sovereignty.

The principle of subsidiarity is an idea found in Catholic social thought that should appeal to all traditionalist conservatives. As the Acton Institute’s David A. Bosnich defines the term,

This tenet holds that nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. In other words, any activity which can be performed by a more decentralized entity should be. This principle is a bulwark of limited government and personal freedom.

A related idea from the Reformed tradition (and the one to which I subscribe) is the neo-Calvinist notion of sphere sovereignty . According to the Wikipedia entry :

Sphere sovereignty is the concept that each sphere (or sector) of life has its own distinct responsibilities and authority or competence, and stands equal to other spheres of life. Sphere sovereignty implies that no one area of life or societal community is sovereign over another. Each sphere has its own created integrity. Neo-Calvinists hold that since God created everything “after its own kind,” diversity must be acknowledged and appreciated. For instance, the different God-given norms for family life and economic life should be recognized, such that a family does not properly function like a business. Similarly, neither faith-institutions (e.g. churches) nor an institution of civil justice (i.e. the state) should seek totalitarian control, or any regulation of human activity outside their limited competence, respectively.

The reason these positions are exponentially more conservative than garden-variety federalism is easy to see. It would be consistent with federalist principles, though not with conservatism, for the state of Massachusetts could become a socialist utopia (or dystopia) if the people of the state so choose. The state government could, insofar as it didn’t directly contravene the Constitution, assume complete control of all internal institutions, could even redefine all other societal spheres (marriage, schools, corporations) and refuse to recognize any institution that didn’t comply. For example, Massachusetts could redefine marriage to include only polygamous arrangements and refuse to recognize any other form. As long as the Massachusetts didn’t extraterritorialize their policy decisions on other states, they would be perfectly within the bounds of federalism.

Federalism is a neutral philosophical position; it is neither conservative nor liberal. As Robert Alt once wrote in NRO article that asks, “Is Federalism Conservative?:

“Contrary to our liberal friends’ assumption, federalism is not necessarily conservative. Rather, federalism is a series of constitutional rules, and as rules cut against both conservative and liberal positions alike. Yes, federalism will disappoint those who think that the only solution is a national one, but in terms of policy outcomes, federalism proves itself to be a neutral dealer.”

Federalism also can disappoint those who believe that justice trumps ideological concerns. One of the most disheartening and shameful scenes of the last decade was to see so-called conservatives claim that the Terri Schiavo case should have been left solely to the state of Florida. The charitable view is to assume that had they known that a woman was being killed by the state without due process of law, they would have sided with justice over judicially mandated involuntary euthanasia. The less generous opinion is that they simply haven’t considered how federalism relates to conservative principles.

For if conservatives are willing to give the state the power to kill an innocent woman, willing to let adherence to procedure trump our dedication to justice, willing to put the rights of the government ahead of the rights of the individual, then we have lost all sense of what it means to be conservatives.

Federalism can be useful in drawing legitimate lines of Constitutional authority. But when it is allowed to transfer power to the states from other societal spheres, the philosophy merely creates fifty separate laboratories of liberalism.