Federalism and Liberty

[Sanford Levinson]

Surely my colleague Doug Laycock (with whom I do *not* always agree) is
absolutely right that it is misleading to say that federalism (i.e., states
rights) protects liberty.  What it does is to protect the right of locals to
regulate as they wish, which is, to be sure, a kind of local liberty, but
the point is that, even most generously interpreted, it is a *collective*
liberty and under no plausible account a protection of the liberty of
vulnerable individuals or groups.  This is, of course, not a remotely
original point:  As Madison argued in the 10th and 14th Federalists, a
central the rationale for moving to the national level is precisely to
prevent the ability of local majorities to engage in tyrannical behavior
over locally vulnerable minorities.  To paraphrase Mae West's comment about
goodness, defense of individual liberty "has nothing to do" with the
arguments for strong local government.  But, then, why turn to James Madison
for insight as to the purposes of the United States Constitution when we
have the Federalist Society to provide us with authoritative accounts?

Sandy Levinson

Doug had written:

>        In this regime, federalism does not protect liberty but reduces it.
>Federalism does not produce separate, limited, and weak sources of
>regulation; it produces multiple, duplicative, and strong sources of
>regulation.  If the feds don't regulate you, the state, county, or city will.
>
>        RFRA was an example of federalism actually doing what it is supposed
>to do -- one level of government checking another in the interest of the
>liberty of citizens.  Boerne is simply another license to regulate.
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX  78705
>        512-471-3275 (voice)
>        512-471-6988 (fax)
>        dlaycock at mail.law.utexas.edu
>