Earlier this year, the liberal Princeton historian Sean Wilentz published a widely quoted essay in The New Republic comparing the political opposition to President Barack Obama’s health care act and other federal initiatives to the racist secessionism of the Confederacy and Jim Crow South. “There are those who now seek to reopen this wound in the name of resisting federal legislation on issues ranging from gun control to health care reform,” Wilentz wrote. “Proclaiming themselves heralds of liberty and freedom, the new nullifiers would have us repudiate the sacrifices of American history—and subvert the constitutional pillars of American nationhood.”
In Wilentz’s skewed telling, support for federalism—which is simply the idea that federal law should control in some limited areas while state or local law should control in others—comes across as no better than supporting the worst forms of state-sanctioned brutality. And he’s not alone in that negative judgment. Liberal New York Times’ writer Kate Zernike has referred to the “echo of slavery, Jim Crow and George Wallace” discernible in Tea Party criticisms of the Obama administration, while MSNBC host Keith Olbermann recently attacked Tea Party political candidates for wanting to “march this nation as far backward as they can get, backward to Jim Crow.”
Yet while these and other liberal commentators demonize the federalism championed by conservatives and libertarians, others on the left have been successfully employing the concept of federalism to advance a progressive political agenda. Just yesterday, the Supreme Court heard oral arguments in AT&T Mobility v. Concepcion, a case centering on a cell phone contract whose terms passed muster under the Federal Arbitration Act yet ran afoul of a more stringent California law. In this case it was progressive activists urging the Supreme Court to side with state law over federal regulatory power. As Brooke Obie of the liberal Constitutional Accountability Center put it, “Will the Court follow its federalism principles and allow state contract law to be enforced?” Yesterday’s oral arguments suggest the Court probably will. “Are we going to tell the State of California what it has to consider unconscionable?” asked conservative Justice Antonin Scalia.
Similarly, in last year’s Wyeth v. Levine, the Supreme Court ruled that federal law did not preempt a state failure-to-warn lawsuit against a pharmaceutical company even though the drug warning label in question was approved by the Federal Drug Administration, a decision cheered by left-wing consumer advocates and criticized by free-market policy analysts. The ruling was also notable for its unusual 6-3 line-up, with conservative Justice Clarence Thomas concurring in the judgment written by liberal Justice John Paul Stevens (which Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined) while fellow conservative Justice Samuel Alito authored a dissent joined by Chief Justice John Roberts and Justice Scalia.
The usual left-right tables were also turned this year in the landmark gun rights case McDonald v. Chicago, where many liberal activists argued that state and local governments should be allowed to serve as “laboratories of democracy” when it came to gun control while libertarian lawyers spearheaded the successful movement to make the Second Amendment apply to the states.
In other words, there’s nothing inherently liberal or conservative about making an appeal to federalism. It’s a legal and rhetorical tool used—sometimes correctly, sometimes not—by both sides of the political aisle. Unless liberal critics like Wilentz, Zernike, and Olbermann will also admit to hearing the “echo of slavery” in state-level consumer advocacy campaigns, or in the many ongoing state and local efforts to legalize gay marriage and medical marijuana, they should stop smearing federalism and start evaluating the merits of the actual issues. That might not be as easy as tarring your political opponents as closet white supremacists, but it does have the advantage of being intellectually honest.