- - Tuesday, July 27, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.

Of late it seems our nation is neither one nor indivisible. The divide between red and blue America is palpable, extreme and so rancorous it sometimes spills into violence. Bipartisanship is largely defunct and our nation’s legislative branch essentially frozen.

Yet one ray of sunshine brightens the horizon: We are living in the golden age of federalism.

Our system of dual sovereignty was at once a genius inspiration of our Constitution’s framers and a necessary expedient for its enactment. The idea, enshrined in the 10th Amendment, is that certain limited powers were delegated to the national government, with the remaining valid powers retained by the states. Alexander Hamilton argued in The Federalist No. 51 that reserving certain powers in the states would provide a “double security,” in addition to separation of powers, to constrain abuses of national power.

Despite the relentless flow of power to our nation’s capital, states continue to dominate wide swaths of governance, from education to criminal law, personal injury, domestic relations, and most importantly, the police power (the power to regulate for public health and safety). In domains that have not been taken over by the national government, states are free to call their own shots — to be, in the words of Justice Louis Brandeis, “laboratories of democracy” — so long as they do not violate the Constitution.

For most of America’s history, federalism was a partisan issue: Whichever party dominated Washington squelched federalism. One decision from the New Deal Supreme Court dismissed the 10th Amendment as a “truism,” aspirationally majestic but devoid of content.

But today, both parties embrace federalism. Even when one party or the other seeks to increase the national government’s power, it simultaneously moves the policy ball forward in states it controls.

In this regard, federalism serves a vitally important function: as a release valve for pent-up dissent. Did liberals disdain President Trump’s immigration policies? How about creating welcoming “sanctuary cities”? Conservatives who fear President Biden’s gun-control policies have appropriated the idea, creating sanctuary cities for gun rights.

Are these divergent policies meaningful, or even constitutional? Sometimes yes, sometimes no. But they reflect our doctrinal preference for decentralized authority. “Federalism secures the freedom of the individual,” the Supreme Court declared in a unanimous 2011 opinion. “It allows states to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.”

We have never experienced so much federalism. We are emerging from COVID-19 federalism, in which some states exercised tight control, while others reopened more quickly. We have abortion federalism, in which some states permit abortion until nearly birth while others proscribe it after a fetal heartbeat. We have capital punishment federalism, educational federalism, right-to-work federalism. The list is endless.

We also have what I call civil disobedience federalism, where states pursue their own path contrary to federal law. For instance, marijuana is legalized in some states, illegal in others. So far, the federal government under both parties has tolerated the divergence and may even legalize it.

That example illustrates another attribute of federalism: Where the national government is deadlocked, we can test-drive different approaches in the states. My favorite example is a policy my former colleagues at the Goldwater Institute and I devised called “right to try.” For decades, advocates in Washington toiled without success to speed up the approval process at the Food and Drug Administration for potentially lifesaving drugs. Our audacious idea was to establish in state law the right for terminally ill patients to try experimental drugs.

We expected the FDA to challenge the law to protect its regulatory hegemony. Instead, as the idea swept dozens of states, both red and blue, the FDA began streamlining its processes. Eventually the law was passed with bipartisan majorities in Congress — just in time to aid the rapid approval of COVID-19 vaccines.

Free-rein federalism is properly checked by constitutional constraints. But both sides of the ideological divide should applaud the willingness — and the ability — of states to pass laws that reflect their citizens’ values and aspirations. That means resisting efforts to nationalize decision-making on matters traditionally entrusted to the states. Indeed, where such efforts go too far, they also may transgress constitutional boundaries.

We need the release valve. Certainly, the red-blue divide exists not just among but within states. But it is much easier to affect, and change, politics at the state level than the national level. If you don’t like what your state does, you can always find more hospitable climes.

We all have a direct stake in protecting federalism, even if we don’t always like what it produces. The one-size-fits-all alternative will often look far less appealing.

Clint Bolick is a justice on the Arizona Supreme Court and a research fellow with the Hoover Institution.

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