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Not coincidentally, Thomas, who has repeatedly criticized the “substantial effects” doctrine, was considered the surest vote against the health insurance mandate. (Despite Wydra’s gratitude for Thomas’ consistent federalism, she did not return the favor in the ObamaCare case, arguing that the Court should uphold the mandate.) Thomas also was one of three dissenters in Raich, the medical marijuana decision. “If Congress can regulate this under the Commerce Clause,” he declared, “then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”
Despite that setback, left-leaning drug policy reformers continue to use federalist arguments, demanding that Washington let states experiment with more tolerant approaches. Last year Americans for Safe Access filed a federal lawsuit arguing that the Obama administration’s crackdown on medical marijuana in California violates the 10th Amendment. The group says the Justice Department is not simply enforcing the federal ban on marijuana (as permitted by Raich) but doing so in a way intended to undermine state and local policy choices. “While the government is entitled to enforce its criminal laws against marijuana…in an even-handed manner,” the complaint says, “the Tenth Amendment forbids it from selectively employing such coercive tactics to commandeer the law-making functions of the State.”
Federalism also can serve the cause of gay rights. In 2010 U.S. District Judge Joseph Tauro ruled that the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing state-approved gay marriages, violates the 10th Amendment. When it comes to joint federal-state projects such as Medicaid and military cemeteries, Tauro said, DOMA forces states like Massachusetts to pretend that marriages they recognize do not exist, a requirement that impermissibly intrudes on family law, “a quintessential area of state concern.”
Bob Barr, who came to regret his role in writing DOMA as a Republican congressman from Georgia, originally viewed the 1996 law as a way to prevent one state from imposing its marriage policies on others. But as he explained in a 2009 Los Angeles Times op-ed piece, “DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws—including immigration, Social Security survivor rights and veteran’s benefits—has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.”
In this context, Josh Harkinson’s concern that Ron Paul’s federalism would “enable extremism” by letting states set their own marriage policies is puzzling. As Yale law professor Heather K. Gerken observes in the Spring 2012 issue of the journal Democracy, local and state decisions to recognize gay marriage have helped shape public opinion by disproving social conservatives’ predictions of disaster and showing the nation “happy families that looked utterly conventional save for the presence of two tuxedos or two wedding dresses.” Gerken advocates “a new progressive federalism,” arguing that “state and local governments have become sites of empowerment for racial minorities and dissenters” in areas such as marriage, education, affirmative action, immigration, and environmental regulation. “Decentralization will produce policies that progressives adore,” Gerken writes, “and it will produce policies that they loathe.” But she argues that the risks for progressives are outweighed by the benefits, including not only instructive policy experiments but a stronger democracy that integrates outsiders into the political system.
Just as federalism will not always produce policies that progressives like, it will not always produce policies that libertarians like. Federalism, like representative democracy or the federal government’s “checks and balances,” is a means to an end: By keeping most political decisions at the state and local levels, it promotes responsiveness, diversity, innovation, and competition among jurisdictions. “When political power is decentralized,” notes George Mason law professor Ilya Somin in a 2011 Library of Law and Liberty essay, “individuals can ‘vote with their feet’ against jurisdictions whose policies are oppressive or heavy-handed.” People who are unhappy with the policies of one city or state can move to another, much more readily than they can immigrate to a different country.
Federalism therefore is no mere formality, and it is not simply about “states’ rights.” As Justice Kennedy observed in Bond v. U.S., a unanimous 2011 decision allowing criminal defendants to challenge federal charges on 10th Amendment grounds, “The federal system rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’…The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.”
For this system to work, however, the distinction between state and federal powers must be determined by the Constitution, not by personal policy preferences. A consistent application of federalism is not just a matter of principle or intellectual honesty. It is a matter of pragmatism, since the same understanding of congressional power that allows the federal government to pursue universal health care also allows it to yank medical marijuana from the hands of cancer patients.
Senior Editor Jacob Sullum is a nationally syndicated columnist.