4.3: Limits to Federalism

There are many advantages to a federal system of government. Giving states the freedom to make their own laws turns them into what former Supreme Court Justice Louis Brandeis called “laboratories of democracy.” Each state can experiment with different policies to find which ones work best. Sometimes this leads to states learning from one another’s successes and failures: Wisconsin might adopt an education program that seems to be working well in Minnesota, or Tennessee might steer clear of a tax system that backfires in Kentucky. But federalism also enables states to craft laws specifically suited to their wants and needs. The ideal tourism policy for Florida is probably very different from the ideal tourism policies for Nevada and Alaska.

Federalism gives states flexibility to govern themselves as they wish. However, as the Articles of Confederation proved, too much flexibility is disadvantageous. The “patchwork of laws” produced by federalism — in which laws vary from state to state — can cause confusion and conflict if one state’s laws negatively impact another state in some way.

To reduce the likelihood of such conflict, the Constitution imposes several limits on how much states can customize their laws. One of these limits is the full faith and credit clause in Article IV, which stipulates that states must respect one another’s laws. This clause is what enables Pennsylvanians to drive across the New Jersey border without breaking the law: their driver’s licenses are valid nationwide. Likewise, marriage licenses, adoption certificates, and court judgments issued by one state are valid in all other states. The full faith and credit clause also prevents Americans from moving to a state to avoid paying alimony, child support, or credit card debts owed in another state.

The first political cartoon ever printed in America, commissioned by Benjamin Franklin and published in the Pennsylvania Gazette in 1754, makes the case for a union of the American colonies.

Another limit on federalism specified in Article IV is the privileges and immunities clause, which prohibits states from denying basic rights to citizens of other states. This clause protects Arizonans living in New Mexico from losing their property rights, access to courts, or welfare benefits. The privileges and immunities clause does not ban all unequal treatment of citizens and non-citizens, only that which infringes upon basic rights. Thus, public universities can charge more for out-of-state tuition than they do for in-state tuition without violating the privileges and immunities clause (in part because in-state students already support those universities with their tax dollars).

A third limit on federalism outlined in Article VI is the supremacy clause, which establishes that national law is superior to state law whenever the two contradict. This clause prevents states from passing laws that violate the Constitution or statutes passed by Congress, ensuring that national laws are truly national. The supremacy clause prevents Louisiana from legalizing dogfighting, which was banned nationwide by Congress in 2007, because the national ban supersedes state law.