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Federalism and consistency

Posted by Richard on September 30, 2005

Eugene Volokh has an interesting post about federalism that addresses the frequently-heard inconsistency argument — that is, the claim that leaving X in the states’ hands, but giving the feds control of Y is inconsistent or hypocritical. He made several good points, including his observation that critics of federalists’ supposed inconsistencies often "mistake federalism (support for leaving many things at the state level, but deciding many others at the federal level) for a more categorical localism (support for leaving everything at the state level)."

Volokh proposed and discussed four questions that one might ask in deciding whether something — especially an individual rights matter — should be decided at the state or national level:

a. Should the federal Supreme Court protect a certain ostensible right throughout the nation, displacing contrary federal and state decisions? …

b. Does Congress have the constitutional authority to protect a certain ostensible right by federal statute throughout the nation, displacing contrary state decisions? … 

c. Should Congress exercise its authority to protect a certain ostensible right by federal statute? …

d. Even if the federal government shouldn’t step in, should people nonetheless urge all states to protect a certain ostensible right?

He argued that many claims of inconsistency against federalists fail to recognize that the federalists are making different arguments in each case. For instance, a federalist could look at the Violence Against Women Act and conclude that this is a matter that ought to be left to the states (the answers to a, b, and c are "no"), yet support the Lawful Commerce in Arms Act as an appropriate protection of interstate commerce (the answer to b is "yes").

Since federalists are neither localists nor nationalists, they defend a federal role when arguing against localists (as in the 1780s) and a state role when arguing against nationalists (as in recent years). This has led them to stress one or the other more at different times in history, noted Volokh, even though federalists are committed to preserving "zones of authority" for both the federal and state governments:

In fact, today’s federalists probably have a broader view of the proper scope of federal power than most of the 1780s federalists had. They just tend to talk more about state power because today they think matters have swung too far in the direction of federal power.

That’s an important point. In the early years of our republic, the federalists were among the most authoritarian, big-government elements of the political spectrum. Today’s federalists, despite accepting a much broader federal role than their intellectual ancestors, are among the most libertarian, limited-government elements.

In any case, Volokh’s right that most accusations of inconsistency against federalists are simply bogus:

One can certainly argue that federalists are mistaken about where the line should be drawn, or even inconsistent in drawing that line. But one needs to do that by concretely explaining why the line should be drawn in a particular place, or why two things must in any event be on the same side of the line — one can’t just point to the federalist’s supporting national solutions in some situations and state solutions in others and say "Aha! Inconsistency!" Federalism is all about supporting national solutions in some situations and state solutions in others. More broadly, I suspect that good judgment, left, right, center, or libertarian is all about supporting national solutions in some situations and state solutions in others.

Quite right. But there’s no disputing that, sadly, the pool of national solutions has become an ocean while the pool of state solutions is a mere puddle. I suspect that staid, authoritarian old John Adams, if he were alive today, would probably be shouting revolutionary slogans and leading a modern equivalent of the Whiskey Rebellion.

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