The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In an excellent recent Wall Street Journal op ed, National Constitution Center President and leading left of center legal scholar Jeffrey Rosen explains how both left and right can benefit from strengthening constitutional federalism:
Many of the issues that recent presidents have tried to decide at the national level through executive orders are best resolved at the state or local levels instead. In an era of fierce partisan divisions, all sides are beginning to see the virtues of our federal system in accommodating differences-and encouraging experimentation-on issues such as immigration, law enforcement and education.
Federalism has long been a cause on the right, but now it's just as likely to be a rallying cry on the left. Rep. Zoe Lofgren, the top Democrat on the House Judiciary's immigration and border-security subcommittee, recently said: "The Constitution, specifically the Tenth Amendment, protects states' rights, and it prohibits federal actions that commandeer state and local officials. When it comes to immigration, these principles seem to be overlooked"
The framers of the Constitution would be pleased with this emerging consensus. By creating a national government with limited powers, they intended to allow the states and local governments to pursue a range of different policies on matters within what used to be called their "police powers"-that is, their authority to regulate behavior, maintain order and promote the public good within their own territory. The founders considered this arrangement the best way to protect liberty and diversity of opinion, as well as to defend political minorities from nationalist tyranny and concentrated power….
A respect for federalism and state autonomy is perhaps the only way that all sides can peacefully coexist in today's political environment. With dysfunction now reigning on Capitol Hill and federal courts increasingly ready to strike down the unilateral action of presidents, Americans will at least be able to take some comfort in local autonomy and control. In these polarized times, citizens who strongly disagree with each other may be able to unite around the goal of making federal power less intrusive and national politics less of a contest where the winner takes all.
Later in the article, Rosen explains how reinvigorating federalism can help curb federal government overreaching and enhance state autonomy in such fields as education, immigration, and law enforcement.
I don't agree with every single point Rosen makes. But I certainly agree with the bottom line. Like Rosen, I have long argued that both left and right can potentially benefit from stronger cross-ideological support of federalism, and that stronger enforcement of constitutional limits on federal power can help defuse the partisan hatred that is helping to poison our politics. I also agree with his view that the recent federal court ruling against Trump's executive order targeting sanctuary cities is a notable example of how the left can benefit from constitutional federalism as well as the right.
Going beyond specific issues, decentralization of power can give people greater opportunity to "vote with their feet," which often leads to better decision-making than when we have to decide issues at the ballot box, at the federal government level. There is much we can do to make foot voting easier for all Americans, particularly the poor and disadvantaged.