When Federalism Doesn't Go Far Enough

States' rights can't keep everyone happy with the laws they live under -- cities and counties should enjoy more autonomy

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In a profile of Rick Perry at The Weekly Standard, the always perceptive Andrew Ferguson offers several astute observations about the Texas governor's views on federalism, and especially his insistence that Americans ought to have an opportunity to vote with their feet. "Perry sees a properly federalized America as a kind of buffet table of states offering an exciting variety of cultural options from which a citizen can choose​," Ferguson writes, "something for every lifestyle and taste."

Of course, there is reason to believe that Perry doesn't believe his own federalist rhetoric, but that doesn't prevent us from evaluating it, and Ferguson declares himself a skeptic. "Perry's idea of federalism, boiled down, becomes a kind of crude majoritarianism. What if you favor both medicinal marijuana and the death penalty? What if you're a guy who takes comfort living in a state where citizens pack hand guns but you still want to marry your boyfriend?" he writes. "You're out of luck. You'll have to live in a state where the majority​ -- gun-packing homophobes or potheads with a distaste for capital punishment​ -- ​perpetuates itself by disgorging people like you. 'If you don't like how they live there, don't move there' is a principle with a corollary: 'If you don't like how we live here, leave.' You and your partner might have to secede."

Isn't he right?

Boosters of federalism, myself included, seldom acknowledge that individual Americans have preferences that overlap uneasily with the platforms of political  parties that enjoy a de-facto duopoly. For me, the laid back culture, long coastline, spectacular weather, and delicious burritos of California make it the state where I'm happiest. And I'm quite pleased that sick people are permitted marijuana here. But many public policy choices made by my elected officials leave me aghast.

There is also the fact that jobs and family often dictate choices about where to live much more than the public policy that prevails in a jurisdiction. The idea of "voting with your feet" has appeal. But does it matter in practice? And if not, shouldn't we stop citing it as a boon of federalism?

What I'd concede is that federalism doesn't offer a "buffet table of states" that includes a great fit for everyone. Even if it were strengthened, lots of folks would still live under some laws that they regard as wrongheaded. But its inability to bring about a pluralist's utopia doesn't mean that it doesn't permit more people to live under their system of choice than would total federal dominance. (See gay marriage in New York.) And the status quo could actually be improved upon by further embracing local control.

It makes sense to do lots of things at the state level: planning transportation infrastructure, running public universities, and issuing drivers licenses, for example. But is there any reason that San Francisco bars should be forced to stop serving alcohol at the same time as the ones in Irvine, Claremont, or Modesto? Or that the judgment calls about what age kids should start learning about sex education should be made in state capitols instead of individual school districts?

Everyone ought to be guaranteed certain rights, and pragmatism sometimes demands that things be done at a higher level of government. Those situations aside, why not let every community make its own decisions? There are all sorts of areas in which states are legally empowered to impose uniform policies, but shouldn't. The average household in San Francisco doesn't have much in common with the typical Rancho Cucamonga, California family -- it has much more in common, in fact, with the average household in Seattle, Washington.

Nor is there any reason to require the people of Eastern Washington to live under all the laws that urban Washingtonians manage to push through. As yet, very few politicians earnestly articulate an ethic of local control: as much as people resent being forced to live under laws with which they disagree, there is an even bigger constituency for imposing policy judgements and laws on other, supposedly less enlightened, people. And again, federal and state laws are needed in all sorts of areas. But it is only when policies are made at the local level that most people can realistically "vote with their feet," a true diversity of choices emerges, and the largest numbers possible can be governed as they prefer, with "something for every lifestyle and taste."

Image credit: Reuters