Federalism and Freedom

Abstract

The argument for devolution of power to state and local governments in contemporary Supreme Court cases regularly relies on claims about the virtues of federalism as a means of maintaining individual liberty. This article explores the plausibility of the argument that supplanting federal with state authority is likely systematically to protect individual liberty. The article argues that if there is a viable argument for "federalism as freedom," it must go beyond the sense that two governments are more repressive than one or that the federal government is more inclined to curtail liberty than is a state or local authority. The plausible claims rely on the abilities of autonomous state governments to provide a competing source of norms and to allow escape from oppressive laws. The availability of sanctuaries in other states is a function of rights of interstate travel and territorial limitations on state jurisdiction, which themselves require federalized constraints on state and local autonomy.