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Saturday, November 13, 2010

Liberal Federalism

At Reason, Damon W. Root notes notes that while liberals sometimes attack conservatives for making federalism arguments, a number of issues involve a role reversal:

Yet while these and other liberal commentators demonize the federalism championed by conservatives and libertarians, others on the left have been successfully employing the concept of federalism to advance a progressive political agenda. Just yesterday, the Supreme Court heard oral arguments in AT&T Mobility v. Concepcion, a case centering on a cell phone contract whose terms passed muster under the Federal Arbitration Act yet ran afoul of a more stringent California law. In this case it was progressive activists urging the Supreme Court to side with state law over federal regulatory power. As Brooke Obie of the liberal Constitutional Accountability Center put it, “Will the Court follow its federalism principles and allow state contract law to be enforced?” Yesterday’s oral arguments suggest the Court probably will. “Are we going to tell the State of California what it has to consider unconscionable?” asked conservative Justice Antonin Scalia.

Similarly, in last year’s Wyeth v. Levine, the Supreme Court ruled that federal law did not preempt a state failure-to-warn lawsuit against a pharmaceutical company even though the drug warning label in question was approved by the Federal Drug Administration, a decision cheered by left-wing consumer advocates and criticized by free-market policy analysts. The ruling was also notable for its unusual 6-3 line-up, with conservative Justice Clarence Thomas concurring in the judgment written by liberal Justice John Paul Stevens (which Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined) while fellow conservative Justice Samuel Alito authored a dissent joined by Chief Justice John Roberts and Justice Scalia.

The usual left-right tables were also turned this year in the landmark gun rights case McDonald v. Chicago, where many liberal activists argued that state and local governments should be allowed to serve as “laboratories of democracy” when it came to gun control while libertarian lawyers spearheaded the successful movement to make the Second Amendment apply to the states.

In other words, there’s nothing inherently liberal or conservative about making an appeal to federalism.