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Federalism

9 min read

Part of Federalism and exit.

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Every episode (31)

Who argued it

Ilya Somin ×3 · Frank Buckley ×3 · Harvey Silverglate · William Ruger · Jason Sorens · Jeffrey Sutton · Ilan Wurman · Timothy Sandefur · Bob Levy · Ray Haynes · Kevin Vallier · Randy Barnett

Constitutional Law · Foot Voting · Criminal Justice Reform · Supreme Court · Administrative State · Public Choice Theory · Commerce Clause · Originalism

Background

The principle and its Brandeisian framing

Bob Zadek introduces federalism through Justice Brandeis, whom he quotes as saying that a 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. Zadek calls the fifty states laboratories of democracy and says each state experiments on what is best for it, with the success of one state dictated by the movement in or out of that state by its taxpayers. He contrasts this with one big state, the federal government, doing all the experimenting, since moving to a different country is a far more drastic decision than moving between states. Where is Everyone Going? (2013)

Clint Bolick, in a separate episode, calls federalism one of the most important innovations of the American system of government and one of the important safeguards of our freedom. He describes the idea as devolving authority to the very lowest level possible, beginning with the individual and extending to the family, the community, local government, state government, and a national government of very limited powers to do only those things that cannot be done locally. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Zadek offers his own observation in that exchange: power starts with the individual, moves to the family, and is ceded upstream to the city or town, then the state, then Washington, only for reasons of practicality. Bolick agrees, saying all power resides in the people and that national defense and the regulation of interstate commerce were practical reasons for creating a national government. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Federalism as choice and as tax competition

In the tax-migration episode, Zadek says he lives in a small town north of the Golden Gate Bridge and is willing to pay a premium to stay in California, which he describes as having punitive tax policies along with New York, New Jersey and Illinois. He says he likes that taxpayers have a choice and have voted with their feet, either by staying or by leaving, so that states have a marketplace and get a chance to test their theory in the marketplace. Where is Everyone Going? (2013)

Situational federalism

Zadek argues that federalism has become a rationalization to support a policy you wish, with conservatives embracing it when it takes power away from Washington and wanting power moved to Washington in other instances. He gives the minimum wage as one example and abortion as another, saying conservatives who want to criminalize abortion nationally take the opposite of federalism. He asks whether federalism has been cheapened as not being an end in itself. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Bolick answers that there is very strong evidence for what he calls situational federalism: you support federalism when it supports your views but not when it supports someone else’s. He says that so long as federalism is used to expand freedom, everyone needs to support it, including blue-state federalism and red-state federalism when they expand freedom, and warns that federalism will not be with us forever if we do not agree that there are certain things states ought to be able to do free from national interference. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Local government and the risk of tyranny

Bolick’s book, Grassroots Tyranny: The Limits of Federalism, embraces federalism strongly while warning that government at any level is capable of violating rights. He notes that local governments have greater impact on day-to-day lives than the national government and that the framers recognized the more you devolve power, the more it is susceptible to influence by special interest groups. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Federalism beyond the state: cities and charter cities

Zadek tells Dr. Mark Lutter that his presentation is an ode to federalism, describing Brandeis’s view that states were incubators of democracy where one state could experiment and other states would adopt what worked. He says Lutter is describing federalism at the city level rather than the state level. Lutter agrees that is one way to interpret it, saying some policies belong at the national level, such as national defense, while others are better done at a more local level because they may be more responsive to citizens’ needs. He says the most exciting area of charter cities and free cities is probably in Africa and parts of Asia, where cities are urbanizing rapidly and are relatively poorly governed, and that a charter city ranking better on the World Bank Doing Business Index could become a magnet for entrepreneurial people in sub-Saharan Africa. The End of Nation-States? (2018)

Federalism in the Trump White House

Casey Mulligan, asked whether the President has a governing philosophy, pushes back on the term and says he would not call him an ideologue, describing him as more empirical and as seeing patterns that work and reapplying them. Mulligan says the President arrived at federalism from a practical point of view, seeing it work and seeing that when somebody was not doing federalism it did not work, and that he increasingly grew attracted to that approach. Mulligan recounts advising people arguing a position in the Oval Office to give it a federalism angle, and cites a battle over Ben Carson’s agency’s regulations around zoning in suburbs, where the President wiped out regulations in place since the Obama administration. You’re Hired! Chief Economic Adviser to Trump on What It’s Really Like to Work in the White House (2020)

Measuring freedom across the states

Jason Sorens says twenty years of data going back to 2000 show that overall freedom at the state level has declined, but that excluding the impact of federal policies, freedom has actually increased significantly over time. He identifies Obamacare as the biggest factor, an example where Congress took over something previously done at the state level and increased federal regulation so that all states have to conform to a higher level of health insurance regulation. He says states, when left to their own devices, have been increasing freedom over time, especially since the Great Recession and especially in some of the more red states. Ranking Freedom in the 50 States (2022)

William Ruger says federalism has been declining since almost the very beginning, and that once the Supreme Court has spoken, states have to line up. He cites Heller and the recent Supreme Court case on the New York gun laws as restricting states in a pro-liberty direction, and Obamacare as federalizing healthcare in a way negative for liberty and the economy. He argues that if the federal government is to take something on, the Constitution specifies amendment, and that the Commerce Clause has been abused to provide a veneer of constitutionalism to actions fundamentally against the Constitution. Sorens adds that when Congress federalizes a policy it decreases freedom, citing Obamacare and GMO labeling, while when courts federalize something it tends to increase freedom, especially personal freedom, citing Lawrence v. Texas and Obergefell. Ranking Freedom in the 50 States (2022)

Across episodes

The episodes show the same question argued across several episodes without a clear development: Zadek’s Brandeisian framing of states as laboratories recurs in the tax-migration episode and in the charter-cities discussion, Bolick supplies the devolution principle and the situational-federalism critique, Mulligan describes federalism as an empirical preference in the White House, and Sorens and Ruger measure its decline and partial revival.

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