Bond, Federalism, and Freedom

Ilya Somin reconsiders federalism and the protection of individual freedoms.

In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”

The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty.

Bond arose out of a tragic domestic situation. Philadelphia resident Carol Anne Bond discovered that a close friend of hers was pregnant, and that Bond’s husband was the father. In an effort to get revenge on this woman, Bond allegedly placed dangerous chemicals in areas the other woman was likely to touch, with the result that the latter got a burn on her hand. Prosecutors charged Bond with violating a federal law that forbids the use of chemicals that can cause death or serious injury to persons or animals, except for a “peaceful purpose.” Bond’s lawyers contended that this law is unconstitutional because it violates the Tenth Amendment, which holds that “the powers not delegated” to the federal government by “the Constitution” are “reserved to the States… or to the people.” Only states, Bond argued, have the authority to regulate criminal behavior of this type.

The federal government claimed that Bond is not allowed to raise this argument because the Tenth Amendment’s constraints on the scope of congressional power are intended to protect state governments, not individual citizens. The Supreme Court, as we have seen, decided otherwise because federalism protects individual freedom as well as state sovereignty.

Bond and the Individual Health Insurance Mandate

Bond has some important potential ramifications for the Obama health care plan individual mandate case. Twenty-eight state governments and numerous private parties have filed lawsuits challenging the constitutionality of the Obama health care plan provision requiring most Americans to purchase government-approved health insurance by 2014. Lower courts have split over the issue of whether or not the mandate exceeds the scope of federal power under the Constitution. Many defenders of the mandate claim that the plaintiffs aren’t making a “real” federalism argument against the law, but are actually trying to protect individual liberty under the guise of promoting federalism. Bond shows that this is a false dichotomy. A federalism-based limitation on congressional power can protect individual liberty as well as the authority of state governments. If the federal government’s power to impose mandates is limited, that both protects individual freedom and gives state governments greater scope to determine their own health care policies.

That does not mean that the Court will necessarily strike down the mandate. The justices who signed on to the Court’s opinion in Bond include four liberals who are almost certain to conclude that the mandate is constitutional. It does, however, eliminate one of the pro-mandate side’s standard rhetorical points.

It is also noteworthy that the author of Bond is Justice Anthony Kennedy, a key swing voter in many close cases. To the extent that he really believes that “federalism secures the freedom of the individual,” he is unlikely to vote to uphold the mandate if doing so would give Congress nearly unlimited power to impose other types of mandates. If Congress can force Americans to do virtually anything it wants, little will remain of federalism’s role as a safeguard for individual freedom.

Some defenders of the health insurance mandate, have claimed that it is a unique or at least unusual case. But their claims break down under close inspection. The health insurance mandate turns out to be much less special than its advocates would like to believe. It remains to be seen what Justice Kennedy and his colleagues make of the issue. But Bond suggests that they will not uphold the mandate unless they conclude there is some way of doing so without giving Congress a virtually unconstrained power to impose mandates.

How Federalism Protects Individual Freedom 

The individual mandate case aside, is there any reason to believe that federalism protects individual freedom more generally? After all, history shows that state and local governments can also threaten liberty. Southern state governments promoted slavery and imposed racial segregation on African-Americans. State governments in the West often oppressed Asian-Americans and other minorities. Today, states impose many dubious regulations that restrict liberty in myriad ways.

Enforcing limits on federal power is no panacea for freedom. Nonetheless, federalism does promote liberty in several important ways. First, when political power is decentralized, individuals can “vote with their feet” against jurisdictions whose policies are oppressive or heavy-handed. The most famous example in American history is that of African-Americans moving away from segregationist southern states. More recently, studies show that people tend to migrate away from states with high levels of taxation and regulation. Foot voting protects not only those who move themselves, but also those who stay behind. State governments compete with each other for business and tax revenue, and try to avoid policies that would lead to too much outmigration.

By contrast, it is far more difficult to use foot voting to counter oppressive policies enforced by the federal government. The latter can only be done through emigration, which is far more difficult than moving to a different city or state. The more political power is decentralized, the more areas of government policy will be subject to constraint by foot voting. Thus, limits on federal authority help realize the potential of foot voting as a protection for liberty.

State and local oppression is also less dangerous than federal oppression because it affects fewer people. An oppressive policy enacted by one state usually undermines liberty only for its own residents. By contrast, if Washington adopts the same law, it will cover the entire nation.

Federalism is by no means a perfect protector of liberty. In order for foot voting to work, people must be free to move from one state to another. For that reason, there have to be constitutional constraints on states’ power to prevent outmigration. In the era of slavery, obviously, the slaves were not free to leave, which is one reason why they were treated so harshly. Even after slavery was abolished, many southern states enacted “peonage laws” which sought to limit migration by African-Americans. Slavery and peonage laws were abolished only thanks to federal government intervention. Ironically, an effective system of federalism based on foot voting requires federal limitations on state power.

Foot voting also is often ineffective in cases where oppressive regulations target immobile people or property, such as property rights in land. If oppressive state regulations target your land, moving may not help much because you can’t take the land with you. Here too, federal constitutional protections are needed to limit abuses of state power.

Even people who can move to avoid oppressive state policies sometimes choose not to do so because of high moving costs. However, moving costs have declined with the rise of modern transportation technology, and interstate moves are a common feature of American society. A 2008 Pew Research Center survey found that 43% of American adults have moved to a different state at least once in their lives, and 27% have made two or more such moves.

Finally, some critics of American federalism have argued that it is irredeemably tainted by its association with slavery and racial segregation. This is so large a topic that covering it would require a separate discussion, one that I have tried to provide elsewhere. For now, it is worth emphasizing two key points. First, the federal government also had a long history of promoting slavery, segregation, and other types of racial oppression. If the states are tainted by their history, so too are the feds. Second, during long periods of American history, African-Americans and other unpopular minorities would probably have been even worse off without federalism, since the federal government at that time had no desire to assist them, and federalism at least enabled them to vote with their feet for less oppressive jurisdictions.


Ultimately, a free society must guard against threats to liberty from all levels of government. That requires imposing constraints on both state and federal authority. Liberty needs multiple institutional safeguards. Federalism by itself is not sufficient. In some situations, state and local governments can themselves become threats to our freedom. At the same time, federalism can enhance liberty in many situations by allowing us to vote with our feet and by limiting the reach of oppressive policies.


A Jeffersonian Proposal for the Constitution

In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?