Stanford law professor Richard Thompson Ford offers an article on Slate entitled "The New Blue Federalists," in which he argues that federalism isn’t just for conservatives any more. On some points he is undoubtedly correct: Federalism as a principle is not explicitly partisan or ideological--a point I made nearly two years ago here, in an article arguing that the federal partial-birth abortion statute exceeds congressional authority found in the Commerce Clause. Yet on other points, Professor Ford’s thinking is a partisan muddle. Take the following, for example: "Sensible federalism has its limits: It must not allow states to limit the enjoyment of important rights, and it must allow for federal regulation of activities with significant interstate effects." This is his way of having his cake and eating it, too. Under Ford’s theory, we need not limit national power by any constitutionally meaningful test based on, oh, I don’t know, interstate commerce, but rather we should apply an outcome-based analysis. If we do this, I can assure you that the sacred cows of liberalism will remain within the contours of "sensible" federalism, while regulations that the liberals don’t like--e.g, federal drug laws--will be found impermissible. (Editor’s note: I have not taken a look at the briefs in the case, but I have been told that the plaintiffs make a very strong case that the federal drug laws exceed congressional commerce clause authority in the California case pending before the Supreme Court.) You’ll also note Ford’s loose use of the term "important rights." This permits him to keep elements of culture wars within the federal ambit, by failing to recognize that rights which are not constitutional are in fact reserved to the people and to the states.
While I am glad to see Professor Ford enter the fray on this question, I would be far happier to see a liberal with the intellectual seriousness to concede that federalism is a constitutional principle which cannot be ignored--one which assures the limited character of our federal government, and thereby makes impermissible laws and programs which are favored by both ends of the political spectrum.