Federalism is alive and well in the USA, and America’s Founding Fathers would be thrilled.
Last night, Florida Governor Ron DeSantis and California Governor Gavin Newsom had a spirited debate. DeSantis, a Republican, and Newsom, a Democrat, debated everything from local to world issues and highlighted their respective states’ markedly opposing approaches to such things as taxes, law enforcement, gun rights, energy, education, and abortion.
No doubt, over the coming days and weeks, partisans on both the right and left will debate who won and who lost on each issue. But America won.
Over two centuries ago, the American system of government was founded. It is a democratic republic organized by the U.S. Constitution, of which one of the most defining and sacred principles is federalism. In the U.S., unlike so many other democracies, the scope of the federal government has distinct and clear boundaries, and the states are endowed with their own genuine sovereignty. For matters for which legislation is permissible, but either outside the federal government’s jurisdiction or where Congress has elected not to act, it is American federalism that permits states to legislate, or not, as they each see fit.
Consequently, American states are working laboratories for diverse approaches to managing the same or similar problems.
For instance, prior to 1975 and after 1995, states were and are free to establish their own highway speed limits. Today, they typically range from 55 mph to 75 mph. There is even a 40-mile stretch of toll road in Texas where drivers can legally hit speeds of 85 mph.
Likewise, states are adopting their own approaches to the use of marijuana. Although the landscape is quickly changing, marijuana is presently legal in 21 states. Another 16 states have legalized it for medical purposes. A number of states have decriminalized it. And it is illegal in 5 states. This creates fertile ground for academics to study health and societal issues under different conditions, from long-term health risks to medical benefits, such as in the treatment of glaucoma and anxiety. Scientists are no doubt actively measuring everything from the possibility that marijuana serves as a gateway to additions to the value of pure relaxation at a Sunday afternoon music festival.
And it is federalism that allowed states to try different approaches to managing the COVID pandemic. Some states locked down, while others were much more laissez-faire. Time will tell which approach was better.
In the marketplace of ideas, federalism replaces abstracts and hypotheticals with real-world trials and errors.
Readers of these pages and listeners of the Michael Smerconish Program are certainly aware Americans are self-selecting where they live like never before. And it is state differences that are largely fueling the migration. Some people prefer having no income taxes in Governor DeSantis’ Florida. Others prefer smoking a reefer on a bluff overlooking the beautiful waves they just surfed in Governor Newsom’s California.
Fresh U.S. Census Bureau data regarding state-to-state migration demonstrates our state self-selection. In 2022, California had a net loss of approximately 342,000 residents, and Florida had a net gain of about 250,000. About 51,000 Californians moved to Florida, and about 29,000 Floridians did the opposite.
Even more than creating policy diversity, American federalism assists in protecting against national homogenization. True, it seems there is a Starbucks, Panera Bread, and Orange Theory Fitness on almost every Main Street in America. And we Americans genuinely love their predictable levels of quality and delivery. But it is because of federalism that we also have “go-cups” on Bourbon Street in New Orleans, street skateboarding in Venice Beach, the smell of cigar smoke floating from Domino Park in Miami’s Little Havana, and the abundance of available Ubers and Bird scooters in highly unregulated Dallas. All this creates a tapestry of regional diversity that makes each part of our country unique, fun, and interesting. President Bill Clinton put it this way: “Federalism strengthens the fabric of our nation by fostering a sense of unity while preserving the unique identity of each state.”
But more than preserving and celebrating diversity and beyond cultural and lifestyle differences, federalism has saved our country. President Abraham Lincoln said: “Federalism promotes stability by allowing states to have control over their own affairs, reducing the likelihood of conflicts and secession movements.” We Americans occasionally joke about succession. But in many other countries, succession is no laughing matter – just ask Spain – or even Canada as late as 1995.
Most surprisingly, American history is not steeped in mano-a-mano debates over state differences. That’s what makes last night’s debate so fantastic. It highlighted real differences, and it was, at times, substantive.
Had America’s Founding Fathers watched last night’s debate, they would be high-fiving each other no matter if their respective jerseys were red or blue.
Stuart B. Wolfe is a banking, finance, and real estate attorney and the co-founder of Wolfe & Wyman LLP, a regional law firm based in Irvine, CA, with six offices in three states.
