If Federalism Can't Keep Us Safe, What Can?

State borders should be a barrier to overreaching by other states.

One of the bedrocks of our governmental infrastructure is federalism. This is the constitutional recognition of the legal origins of the United States as a union of independent states. America started, of course, with 13 colonies, which became 13 states, and gradually added 37 additional states.

Though the federal government is a behemoth today, it was created when each of those states ceded some of their sovereignty to the federal government. They did this in writing. The writing is the Constitution, and it explicitly states that the governmental powers not ceded are retained by the states.

President Reagan reminded us of the origins of the country in his first inaugural address when he stated, "All of us need to be reminded that the federal government did not create the states; the states created the federal government." He also said that the beauty of the retention of powers by the states is that they are likely to exercise those powers differently and become laboratories of democracy -- hence, Reagan's famous quip that one of the benefits of living in the U.S. is federalism, because "you can vote with your feet."

So, if you don't like the over-regulated Massachusetts, you can move to New Hampshire, and if you don't like the over-taxed New Jersey, you can move to Pennsylvania. This is easier said than done, but the principle subsists, and as long as we have not surrendered the freedom to travel, we can still move to more freedom-friendly states.

This is not an academic theory; it has real-world consequences for my Fox News colleague Jana Winter. Jana is an investigative reporter for foxnews.com. Like all good folks on her end of journalism, Jana has developed sources. In the course of investigating the July 20, 2012, slaughter in a movie theater in Aurora, Colo., Jana learned from sources to whom she promised confidentiality that the alleged murderer, James Holmes, sent a notebook to his treating psychiatrist at the University of Colorado, a state-owned school. This information was earth-shattering for the Holmes case because it triggered the argument that a government psychiatrist ought to have known of Holmes' violent ideations a week before he allegedly carried them out in a movie theater.

At the time Jana learned and reported about the Holmes notebook, all witnesses in the Holmes case were under a court order not to speak with anyone, least of all reporters. When Holmes' lawyers learned that Jana reported on the notebook, they subpoenaed her notes, and lawyers for Fox moved to quash the subpoena. Fox's lawyers argued that her sources were protected by a Colorado shield law. That law compels lawyers who are seeking the names of reporters' confidential sources to seek them elsewhere before approaching the reporter. That law also permits the incarceration of reporters who decline to obey any court order compelling the production of the names of their sources.

Holmes' lawyers apparently want the names of Jana's sources because they believe them to be law enforcement personnel who violated the gag order. Criminal defense lawyers can have a field day on cross examination of cops when they have caught the cops breaking a law they have sworn to uphold. On the other hand, the press, which is the eyes and ears of individuals, a role it enjoys under the First Amendment as interpreted by numerous Supreme Court cases, would be fruitless if reporters could not promise confidentiality to sources. This goes back to the Pentagon Papers case in which the Supreme Court held that matters of material public interest in the hands of reporters -- no matter how acquired -- may "freely" be published. Freely means free from government retribution.

Here is where federalism enters the picture. Jana lives and works in New York. She was ordered by a state judge in Colorado to reveal her sources and threatened with incarceration. New York law does not permit incarceration for failure to reveal sources. So, Fox's legal team filed an application in a New York state court to block the order of the Colorado state judge. That application was denied by a trial judge, and that denial was upheld by an appeals panel by a 3-to-2 vote, and earlier this week, the case was argued before New York's highest state court, the Court of Appeals.

This should be a no-brainer. Jana voted with her feet and chose to live and work in the most First Amendment-friendly state in the union. She should be protected by New York law. If she is not, then all reporters will lose their confidential sources, and all Americans will be in the dark when whistleblowers know awful truths but are unwilling to pay the price of public revelation.

In this era of the Internet, all information is available everywhere all the time. Just because the information in the Holmes case was about an event in Colorado does not mean that Colorado law should control the fate of a New York reporter. The controlling factor should be freedom: the freedom of sources to reveal truths, the freedom of reporters to publish truths, and the freedom of sources and reporters from government retribution.

There is always a common theme in these reporter sources cases, and Jana's is no different. Invariably, the awful truth is about a failure of government -- in this case a government psychiatrist. The government hates and fears the truth. Yet, if the government could control the flow of news, it would only tell us what makes it look good, and we would lack the knowledge with which to make prudent judgment about its policies. Thomas Jefferson once remarked that he'd prefer newspapers without government to government without newspapers.

A proper application of federalism could save the values of the First Amendment and the freedom of Jana Winter. If not, we face the ancient spectacle of a courageous reporter being jailed not for committing a crime, but for telling a truth. And the confidential sources will dry up, and the whistleblowers will clam up, and the government will control more of our lives.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Fist of Etiquette||

    If she is not, then all reporters will lose their confidential sources...

    And those government workers in black robes certainly wouldn't want that.

  • Snark Plissken||

    President Reagan reminded us of the origins of the country in his first inaugural address when he stated, "All of us need to be reminded that the federal government did not create the states; the states created the federal government." He also said that the beauty of the retention of powers by the states is that they are likely to exercise those powers differently and become laboratories of democracy -- hence, Reagan's famous quip that one of the benefits of living in the U.S. is federalism, because "you can vote with your feet."

    Would that be the same Reagan who signed the National Minimum Drinking Age Act into law? Which blackmailed states by withholding Fed highway funds? Well fuck him and his hypocrisy.

  • NCFisher||

    Focus.

  • AlmightyJB||

    Dependency = Slavery. They didn't have to take the money.

  • np||

    That's true, but for all intents and purposes, it still would've restricted noncompliant states through the commerce clause.

  • On The Road To Mandalay||

    President Reagan (may he rest in peace), was a far better actor in the White House than he ever was in Hollywood. With that said, he was no different than any other human being in that what he said, what he did, and what he thought were three entirely different people. And like most human beings he was capable of juggling three to five contradictory beliefs in his head at the same time, and believe in all five of them simultaneously. But he is now a famous person (while most of us are not), and his words will linger around for a very long time to come, while what most people said will disappear the moment they die. On that note, JFK's assassination is still a matter of great interest, while the deaths of millions of "ordinary" folks are of no interest at all, except to God. Think about it.

  • JidaKida||

    I dont think that is gonan work out very good at all man. Wow.

    www.Privacy-Web.tk

  • WTF||

    What have you done with WomSom?!

  • Swiss Servator, Original Gnome||

    Two words for you..."crawl space".

  • Fatty Bolger||

    Forget it WTF, it's spambot-town.

  • WTF||

    If Federalism Can't Keep Us Safe, What Can?

    A robust application of the Second Amendment?

  • Scarecrow Repair||

    Carry federalism to its ultimate conclusion, to the people themselves?

    No, I don't mean sovereign citizen, I think; I am not really sure what they are, other than demonized by the lamestream media. But we as individuals are the root of all power, so just get rid of government power period, and there's your federalism for ya.

  • mfckr||

    How Rothbardian.

    “Once one concedes that a single world government is not necessary, then where does one logically stop at the permissibility of separate states? If Canada and the United States can be separate nations without being denounced as being in a state of impermissible “anarchy,” why may not the South secede from the United States? New York State from the Union? New York City from the state? Why may not Manhattan secede? Each neighborhood? Each block? Each house? Each person? But, of course, if each person may secede from government, we have virtually arrived at the purely free society, where defense is supplied along with all other services by the free market and where the invasive State has ceased to exist.”

  • sarcasmic||

    "...where defense is supplied along with all other services by the free market and where the invasive State has ceased to exist."

    Then competing defense firms literally kill each other off, bringing into existence the invasive State when only one defense firm remains.

    Death and taxes. There will always be some group of men with the last word in violence demanding tribute in the name of protection. Always.

  • Libertymike||

    sarc, your assertion that "then competing defense firms literally kill each other off" is predicated upon what, pessimism?

  • sarcasmic||

    Without government or some other last word in violence, what's to stop one defense firm from killing the competition and becoming the last word in violence? Seems like a pretty sound business model to me. Kill the competition, and now if your customers don't pay what you want, when you want it, you can beat it out of them. Who's going to stop you?

  • wheelock||

    Which is basically what we have now. The existing nation states are the remaining "defense firms". It seems to me that anarchists don't have to look far to find an example of anarchy, it is the natural state of our world.

  • Black&Yellow||

    "then competing defense firms literally kill each other off"

    that would be very costly for both defense firms unlike the state, which profits all gains and externalize the cost.

  • sarcasmic||

    that would be very costly for both defense firms unlike the state, which profits all gains and externalize the cost.

    Once a defense firm kills off all the competition, it becomes the state.

  • DarrenM||

    Isn't this how the Mafia works?

  • JohnInFlorida||

    As the founders tried to do, within the limiting fact that zero government = anarchy. The Constitution + 1-10 was pretty darn close to no government, and it had a good, long run till the progs achieved some real traction, chipping away at the beauty of a constrained central government.

  • ||

    ".....the ancient spectacle of a courageous reporter being jailed not for committing a crime, but for telling a truth."

    I am wondering why there was a gag order in the first place. In principal, I think gag orders are unconstitutional.

  • Raven Nation||

    I'm pretty sure you are correct:

    Nebraska Press Association vs. Stuart

    http://en.wikipedia.org/wiki/N....._v._Stuart

  • Plubius||

    Most likely because this is a high profile case, and the court is attempting to prevent the jury from being exposed to information that isn't presented in court. The court is trying to ensure a fair trial (due process, impartial jury, etc.). In other words, the rights of the accused are also at issue in this case, not just the right to freedom of the press.

    Thus, the NY Court of Appeals basically has to determine which right should trump the other in this case. While I tend to agree with the above article's conclusion in this case, I think it's far from a "no-brainer." And I don't think principles of federalism are the best justification for the conclusion; it's really about weighing the competing rights, and determining the best way to reconcile them under the facts of the case.

    The gag order applies to certain law enforcement officers, not the press, so the Nebraska Press Association case is not applicable.

  • Stevecsd||

    Why isn't this a plain jurisdiction issue? How & why do the laws of the state of Colorado apply to a resident of New York?

    Why should Jana have to comply with Colorado law if she lives in New York? Her source violated the gag order not her.

  • Plubius||

    Her source MAY have violated the gag order; the source is unknown. The Colorado court wants to find that out (to ensure a fair trial), so it has issued a subpoena for her records.

    It's not a matter of jurisdiction, because NY courts (as a matter of comity) will generally enforce subpoenas issued by out of state courts, except in certain circumstances (such as where the information sought is irrelevant or complying with the subpoena creates "undue hardship"). So the NY courts - which do have jurisdiction over her - have so far directed her to comply.

  • SIV||

    Jada Winter is an adorable girl-reporter.

  • SIV||

    "Jana"

  • John Galt||

    Indeed.

  • Raven Nation||

    BUT, she works for FAUX News and so does not enjoy regular constitutional protections.

  • Floridian||

    The problem with the laboratories of democracy is assuming it is a race to the top instead of a race to the bottom.

    "Look California just limited magazines to ten rounds, us New Yorkers will drop it to seven."

    Up next: New Jersey announces five round limit!

  • Dweebston||

    Beat me to it, although it does seem like New York has a particular and peculiar penchant for doubling down on other states' shall we say Constitutional irregularities. Something in the water, maybe.

  • UnCivilServant||

    It's the city, it's infested with stupid.

  • Floridian||

    It may be because they are such a dense population it is easy to point to an anecdote and demand legislation. Waiting for some tragedy to legislate on in a population of 1000 people is going to take longer than waiting for the same scenario to develop in a population of millions.

  • Marshall Gill||

    The problem with the laboratories of democracy is assuming it is a race to the top instead of a race to the bottom.

    You are only looking at the negative side of the equation. How many States have concealed or open carry laws? Just last year Oklahoma passed a law making it legal for anyone with a CC permit to carry openly.

    Needing government permission to utilize your innate right to self defense still sucks, but there is movement in the right direction in some states.

  • Floridian||

    I appreciate your optimism but other than finally recognizing the second amendment what freedom has been advanced by the states? Pot has been quasi legalized but it looks like they are going to screw it up with heavy taxation. Now that the race to ban food/drinks is on I'm not real optimistic about the total balance on the scale of freedom vs control.

  • Jquip||

    "Shall not be infringed"

    Suddenly realizing that perhaps they should infringe more lightly, and gain revenue, by handing out permission slips at $X a pop to do what they're not allowed to keep you from doing...

    That's the right direction only in the sense that arranging the deck chairs on the Titanic was the most proper thing to do.

  • R C Dean||

    It creates opportunities for races to the top and to the bottom.

    The race to the top (of Total State intrusion) generally happens on Blue turf (like CA and NY).

    The race to the bottom generally has been happening on Red turf (Texas, for example).

  • DarrenM||

    Then you should have no problem with this. Blue states will be examples of how wonderful blue policies turn out and red state will be examples of how terrible states turn out with *those* policies. You just need to be patient. In the end everyone will submit to the collective and be happy.

  • Doctor Whom||

    The writing is the Constitution, and it explicitly states that the governmental powers not ceded are retained by the states.

    When you try to explain that to the prigs, they don't even try to debate; instead, they instantly resort to name-calling.

  • Doctor Whom||

    *progs

    Thank you, autocorrect.

  • WTF||

    "Prigs" actually works.

  • Rich||

    "You know it. I know it. But the prigs don't know it. The ponies don't know it."

  • John Galt||

    Pro-
    Regressive
    Illiberal
    Goon
    (s)

  • John Galt||

    Progs = Pro-regressives

  • DarrenM||

    Progs = short for TProglodytes.

  • Libertarius||

    Collectivism
    Our feelings know it's true
    Obama will protect us
    And Bernanke too

    Federalism,
    It's selfish to imply!
    Fiat dollarz, welfare and open
    borders for all time

  • LynchPin1477||

    Maybe this is a silly question, but I'm not an expert on the legal system. But if she acquired the information in Colorado (and I'm not sure that she did), then shouldn't she be subject to Colorado law? The law itself may not be a good one, but is it the place of New York to make that determination? If she had stolen something in Colorado and then went back to New York, I would expect her to be extradited.

    This just doesn't seem like a Federalism issue to me.

  • Eduard van Haalen||

    There's a bunch of rules about enforcing the laws of one state in another - I don't know how that will work out in this case, but it's not cut and dried.

  • Raven Nation||

    Napolitano is not clear here: she was investigating the case but she may have done it via 'phone & e-mail from her NY office.

  • Ken Shultz||

    Do you think Americans should be extradited to Saudi Arabia for refusing to reveal their sources there?

    As far as I'm concerned, different states are more or less like different countries. I don't see why New York is compelled to enforce the laws of Colorado.

    If abortion were illegal in Colorado but legal in New York, and a woman had undergone an abortion in Colorado, do you think New York would be compelled to effectively enforce Colorado law and extradite her for a "crime" that isn't a crime in New York?

    What if someone in Colorado had been indicted for having smoked marijuana in New York? Smoking marijuana isn't illegal in Colorado, so why would Colorado be effectively compelled to enforce the laws of New York and extradite her?

    Isn't states not being compelled to enforce the laws of other states half of what federalism is all about?

  • trshmnstr||

  • trshmnstr||

    Somewhat ironically, it appears that NY is one of the states trying to trash state sovereignty by expanding their long arm statutes outside the realm of reasonableness.

  • LynchPin1477||

    Do you think Americans should be extradited to Saudi Arabia for refusing to reveal their sources there?

    There are extradition treaties that cover this sort of thing, right? I would not support entering into a treaty that would cover the case you described above, but if said treaty existed, it seems like the U.S. would be legally obligated to do so. Of course, without some way of enforcing the treaty obligations, that doesn't mean much.

    I'm not sure what the standards for extradition are between States. I would defer to those in the cases you cited.

    Isn't states not being compelled to enforce the laws of other states half of what federalism is all about?

    I don't see this as New York enforcing the laws of Colorado. It is about respecting jurisdiction. New York isn't prosecuting people for things that are illegal in Colorado. And if the crime wasn't committed within Colorado's jurisdiction then I don't think Colorado has any basis for an extradition request.

  • R C Dean||

    I don't see why New York is compelled to enforce the laws of Colorado.

    Its messy (see, also, "Full Faith and Credit" Clause). Typically, though, a state court order can only be enforced in another state if it is adopted ("domesticated") by a local court.

    Which seems to be what is happening in NY. The question then becomes whether the "foreign" order is consistent with or contrary to local law.

    An example: if State A has a law recognizing certain kinds of liens, and you get that lien in State A, you can get it domesticated in other states that recognize that type of lien. However, a state that does not recognize it, probably won't domesticate and enforce it.

  • LynchPin1477||

    Thanks for that. If that is indeed the case then, based on what was in the above article, it seems like NY should refuse the CO request.

  • OneOut||

    Was she in Colorado when she learned it ?

    maybe she read it on the internet.

  • Jquip||

    If she was physically in Colorado when she acquired it, then sure. If she was not, then she wasn't within Colorado's Jurisdiction. In which case, the Federal Courts are the way to go on it.

  • NCFisher||

    Not sure acquiring the information is so much the problem as disclosure. IAE, it is a bad law, and bad laws are prolonged by compliance. NY should refuse and the citizens of CO should then change it.

  • DarrenM||

    If it matters, the 'crime' was not revealing her sources. Obtaining the information in the first place was not the crime.

  • idic5||

    "This should be a no-brainer. Jana voted with her feet and chose to live and work in the most First Amendment-friendly state in the union."

    Not accurate. The reporter was NOT working in NY. She was working in CO. The Federalism idea of different states being labs for different ways of governance is very interesting and more than this was the basis of our founding. But like lots of good ideas, it is challenged when you pop the hood and try to apply the poetic ideas contained in it.

    WHen you work or ply a trade across state lines w/ differing codes, then what? which state wins? I suspect that is what the courts are trying to figure out now.

  • Ken Shultz||

    "When you work or ply a trade across state lines w/ differing codes, then what?"

    If she needs to be extradited from one state to another, then the state she's being extradited from gets to decide whether to extradite her--regardless of where the alleged crime took place.

  • OneOut||

    But was she actually IN Colorado when she got the information ?

    This is similar to online gambling. In that arena the government claims that the gambling takes place where the player is not where the server is.

  • Jquip||

    Neither one wins. You take it to the Federal jurisdiction. That's the entire underlying idea of a 'jurisidction.' What happens wholly in your sphere, is wholly yours.

  • Marshall Gill||

    If Federalism Can't Keep Us Safe, What Can?

    I really like the Judge (no homo) but this is terribly worded. It should read "If Federalism can't keep us Free, what can". People who want government imposed "safety" are rarely concerned with Liberty.

  • Ken Shultz||

    I think it's appropriate.

    Don't you want to be kept safe from the laws of other states?

    I have enough trouble keeping track of the laws of the jurisdiction I'm in. I certainly want to be kept safe from the laws of 49 other states.

  • OneOut||

    Really. What an impossibility to abide by the laws of all 57 states.

    And the reverse is true. Do states allow people from pot legal states to smoke when they are in non legal states ?

  • Jquip||

    Of course not. Again, Jurisdiction. The interesting problem isn't the reverse. It's when the State you are a citizen of disallows something like gambling, pot, or marital aids, and you make use of those within a different State.

    The easy answer is that your home State can pound sand. The real answer is that the police hang out at the State border and see if you bought a pack of cigarettes in Raleigh or Gainsboro. And then there's shopping for Thai teens...

  • Libertymike||

    I trust the Thai teens of which you write are the 18 and 19 year olds.

  • NCFisher||

    His context is being free, not 'safe' as in the NSA protectorate.

  • rogerfgay||

    We do need to throw in a little democracy at least. We currently have no way to break free of the two-party scam. We're not getting rid of the partisan system either. With a proportional partisan system (properly implemented parliamentary approach), we get representatives from even smaller but sufficiently popular parties. They can also report back to us on what's going on. When parties no longer serve, they can be downsized simply by losing support, and those that represent us better will increase in power. For those of you that cry, we're a republic not a democracy ... note we can still be a republic and we can retain Constitutional limits to power. I'm not suggesting that we throw everything else out for a "pure democracy" (what Communism called itself). I'm suggesting that we make what we have now actually work, including elections that matter.

  • AlmightyJB||

    The smaller the country becomes (ie communication/transportation) the weaker federalim becomes. 200 years ago the actual logistics of the federa; government controlling the states was a nightmare. Same really for States controlling towns and cities for that matter. Not to mention the fact that the hardship involved in moving anywhere meant most people never moved more then once if at all. Most probably never left the county they were born in. Now we live in a mobile society were people may be expected to move multiple times to different states for the same company. Because of that shrinking of America, you'll be hearing the argument that the rules should be the same for everyone. I belive Mitt Romney actauuly made that argument concerning gay marraige when running for president. It's unfortunate but I think probably inevitable that more and more people are going to expect consistancy across state lines in a number of issues. I certainly do think people will continue to vote with their feet when it comes to economic viabilty (i.e. they'll continue to migrate to where they can prosper). Hopefully, that remains a check on government regulation, taxation, and interfernece in business.

  • NCFisher||

    I'm not so sure. We've always been a mobile society, immigrants who dislodged the aboriginal natives, spread along the east coast then westward. I see more governors either considering or asserting state sovereignty, open challenges to Fed. drug and immigration laws, rebuking bribes to extend unemployment and Medicaid subscription, and on. Various elements within the GOP establishment are practically declaring war on libertarians, Tea Party, and constitutionalists (a fight I relish, btw).
    There are encouraging cracks in the two-party veneer.

  • OldMexican||

    That application was denied by a trial judge, and that denial was upheld by an appeals panel by a 3-to-2 vote, and earlier this week, the case was argued before New York's highest state court, the Court of Appeals.


    Lawyer: "In the case of Colorado vs Jana Winters, Fox News reporter, we petition that the court..."
    Judges: "Fox News reporter? Off with her head!! Next!"

  • optimusratiostultum||

    gotta love the "vote with your feet bit" its so true, but unfortunately people get to the new place and then enact the same stupid laws that they just tried to get away from.

  • On The Road To Mandalay||

    As I recall (and I could be wrong on this), it was decided "back in the day" that the Federal Government would handle Defense and Foreign Policy. It is these two areas that are bankrupting us!!!!!!!! Think about this!!!!!!! How much does it cost per day to remain in Afghanistan where the U.S. has now been three times as long as we were involved in World War II? Not to mention all those other places we are hunkered down, and where it costs millions every day to stay there. Why does the United States still have bases in Europe nearly 70 years after the end of World War II? Why do we still maintain large forces in places like South Korea and Japan? Why are we in debt to China up to our national collective necks. Why did we ship our manufacturing base to China? Are we in Afghanistan to control and protect the Opium Poppy supply? Ha!
    Why are we in the so called Middle East? Oil? Biblical fantasy? Ww now have Africa Command. Is this to protect endangered species of big game? MY POINT IS THAT DOD AND STATE COSTS US GIANT BUCKS. Have these expenditures made the U.S. any safer from anything. Is it "unpatriotic to raise such issues.

  • optimusratiostultum||

    because after the korean war we kept our standing army. Previously after all other conflicts the military was reduced to "cadre" strength. When we went to war new armies had to be trained and raised before an invasion could take place. We kept the army around so we could interfere with other countries during the cold was.btw this is what Ike meant by "military industrial complex" he knew that it was different from the rest of american history.

    Note that the fall of the Roman republic was predated by the Marian reforms, where the usual Roman armies raised for a single conflict and then disbanded were replaced by the standing armies we know as the legions. Julius Ceasar would not have been able to take over the republic without them.

  • thorax232||

    Federalism is a farce. Try anarchy.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement