Federalism and Liberty, or, Who Can Make You Eat Broccoli?
Michael Ramsey
Before the health care arguments began last week, Joey Fishkin had this post at Balkinization: Can Texas Make Me Eat Broccoli?
Outside the courts, one huge argument is if the government can make you buy insurance, can it make you eat broccoli? This argument seems to have a lot of rhetorical bite. But the most straightforward response is the question in the title of this post. Can your state government make you eat broccoli? If the answer is no, as it surely is, then there must be some reason, other than limits on federal power, why that is so. The most likely reason is that states force-feeding us vegetables would violate fundamental liberty interests protected by the Fourteenth Amendment.
In other words, the “broccoli argument” does its rhetorical work by turning a question of Congressional power into a question of individual liberty. And that, in microcosm, is what the entire public debate about the health care law is about, and why that public debate differs so much from the debate at the Court. Few people other than Mitt Romney really believe that it is perfectly fine for states to pass an individual mandate, yet unconstitutional for Congress to do so. That position—pure federalism, drained of all libertarian talk of personal freedom—simply does not have the political heft it needs in order to be a winning argument. And so opponents of the ACA marry federalism to individual liberty in a way that leaves them in the odd position of suggesting that if Congress has the power under the Commerce Clause to pass the individual mandate, then it could make you eat broccoli… in which case, Texas could pass a statute and force me to eat broccoli right now.
The point is even sharper post-argument, and not just because Justice Scalia brought up the broccoli argument. The argument’s most enduring line may be Justice Kennedy’s statement that the mandate would “change the relationship of the Federal Government to the individual in a very fundamental way.” Without more, though, that appears to be a liberty argument, not a federalism argument, just as Mr. Fishkin says.
But I don’t think it’s a choice between the two (nor, I assume, does Justice Kennedy). Fishkin has it wrong to say that denying federal power while recognizing state power is “pure federalism, drained of all libertarian talk of personal freedom.” To the contrary, it is worse for personal freedom for the federal government to impose the mandate (or make you eat your broccoli) than for states to do it. As Kennedy put it for the Court in United States v. Bond, “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”
It's important to consider, though, exactly how “liberties derive from the diffusion of sovereign power.” The framers’ view was that federalism benefits individual liberty because local government is closer to the people and thus more responsive and less likely to be tyrannical. As Kennedy wrote in Bond, “The federal structure … allows States to respond, … 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.” Thus while in theory states could make Fishkin eat his broccoli, they won’t, whereas with the distant and untrustworthy federal government, one never knows.
Perhaps this is so, but there is plenty of evidence of local tyranny, as anyone who’s lived in a development with a homeowners’ association will attest. And subsequent events showed that the framers were a bit too sanguine about the non-tyrannical nature of the states.
A stronger argument is one that ironically the framers seem generally not to have appreciated, but that is common in modern federalism theory. Simply put, federalism creates a market for government, in which dissatisfied “customers” can “vote with their feet.” (For discussion, see for example writing by Ilya Somin, a leading scholar on this idea, here, here and here). That in turn preserves individual liberty, not just because people actually do move to avoid oppressive regulation (though they do), but more fundamentally because states and local governments understand that people can move. States are less oppressive, not necessarily because they are closer to the people, but because people have options and states know it. As Kennedy also wrote in Bond, quoting Justice O’Connor in the earlier case Gregory v. Ashcroft, federalism “makes government ‘more responsive by putting the States in competition for a mobile citizenry.’”
Of course, to an extent there are alternatives to the U.S. national government as well. But these are harder for individuals and businesses to adopt. The United States’ internal federalism is especially protective of liberty because people and businesses can move so readily (both legally and culturally) from state to state. That’s not true internationally, so competition at the nation-to-nation level provides lesser protection for liberty. My former colleague David Law makes the case that in an era of globalization increasing inter-nation mobility has corresponding benefits for personal liberty. Nonetheless, internal federalism remains uniquely suited to protect liberty structurally.
Obviously, though, internal federalism protects liberty in this way only if the states can offer different options. The more power held by the national government, the less effective the federalism protections of liberty will be. Thus there is an immediate relationship between individual liberty and limited government at the national level. That is often not recognized, because federalism is identified with “states’ rights,” in apparent contrast to individual rights. Bond is an important case because it rejected that apparent contrast and directly linked federalism to individual rights rather than states’ rights. (The lower court had held, quite wrongly, that individuals lack standing to assert federalism-based challenges because, it thought, federalism protects states rather than individuals).
Returning to broccoli, I think Fishkin is wrong to assume that Texas could not constitutionally (try to) force him to eat it. To say the least, no provision of the text seems plausibly directed to that end. But in any event, our liberties don’t depend on conjuring such a limit from the Constitution. If that regulation were to be passed, and if it were thought unduly oppressive, non-broccoli eaters could leave the state (or, if out-of-state, decline to move there). And it would not likely pass in the first place, because the state lawmakers would know it would have that effect. As a practical matter, Texas can’t make Fishkin eat broccoli, not because something in the Constitution says so directly, but because federalism will give Fishkin broccoli-free alternatives. In contrast, the national government lacks this structural constraint on its potential for oppression. Quite unlike the states, the national government knows it has, to some significant extent, a captive population, and may be expected to act accordingly.
So actually it’s perfectly understandable that people might think a measure constitutional at the state level but unconstitutional at the national level for reasons that sound in personal freedom. The short of it is that a state measure is less threatening to liberty than an equivalent national measure because it is more easily escaped. In this way, as Justice Kennedy said in Bond, “Federalism secures the freedom of the individual” – including from broccoli. Interestingly, though, it does so in a way the framers probably did not anticipate.
originalismblog.typepad.com
For the reasons outlined by Ramsey, there is no inconsistency in believing that individual freedom derives important protections from constitutional rules forbidding Congress from enacting laws that can still be adopted at the state level. Obviously, states can and do sometimes enact oppressive policies. But the right of exit makes them, on average, a lesser threat to freedom than similar policies adopted at the federal level.
I previously discussed Bond and the relationship between federalism and freedom here.
volokh.com
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