Santorum, Federalism, and States' "Right to Do Wrong"

(Ilya Somin)

As co-blogger Jonathan Adler notes, Rick Santorum's view of constitutional federalism is that the federal government can always override the states when the latter are doing something that is "wrong":

I'm a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.

Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won't get involved in that.

I will get involved in that because the states, as a president I will get involved because the states don't have a right to undermine the basic fundamental values that hold this country together.

Although I'm no fan of Santorum's, there is a small kernel of truth to his argument. Some evils are so great that we may be justified in violating constitutional limitations on federal power in order to eliminate them. Slavery is probably the best historical example. Even some anti-slavery jurists, including Dred Scott dissenter Justice Benjamin Curtis, thought that Abraham Lincoln had exceeded his constitutional authority when he issued the Emancipation Proclamation (which freed all slaves held in the rebel states). But even if Curtis was correct, Lincoln still did the right thing. As Thomas Jefferson wrote in a letter defending the Louisiana Purchase (which he undertook even though he thought it was unconstitutional), "[A] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest."

But there is a big difference between claiming that we are morally justified in violating the Constitution in some extreme cases and concluding, as Santorum did, that the Constitution allows the federal government to "get involved" whenever the states are committing a "wrong." That would essentially give the feds the power to override the states anytime a national majority or the federal political elite thought state policies were wrong in some way. It would lead us to essentially unlimited federal power.

Maybe such unlimited power would not be a bad thing if we were confident that the feds would restrict themselves to overruling the states only when the latter are genuinely "wrong" in some objective sense, while otherwise leaving them alone. In reality, however, an unconstrained power to correct state wrongs is also an unconstrained power to impose federal wrongs. And federally imposed wrongs are often more dangerous than state wrongs. A "wrong" state policy affects fewer people than a similar federal policy does. Moreover, people can often "vote with their feet" to escape harmful state laws, which is much harder in the case of federal laws.

Obviously, there are important exceptions to these generalizations, some of which I have written about elsewhere. But there is good reason to reject the view that the federal government should be allowed to override the states anytime the latter do something "wrong."