Federalism

How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?

Right	Breakout	Contents
Freedom of Association		Differences in state and federal law contribute to varying levels of freedom of association across the United States. While Supreme Court cases such as Bates v. Little Rock, Shelton v. Tucker, Roberts vs. United States Jaycees, Boy Scouts of America vs. Dale, and Christian Legal Society vs. Martinez upheld the right to freedom of association, the right continues to be violated across states. Furthermore, despite its support from the Supreme Court, the system of federalism often leads to the restriction of freedom of association by local courts and authorities. Particularly in South Florida, Lance Compa investigates how nursing home workers’ rights to free association have been violated. Furthermore, Compa explains how federalism exacerbates these violations. Noting the Palm Garden nursing home case, Copa discusses how nursing home workers were threatened with pay and benefit cuts if they decided to join unions. Additionally, Compa notes Palm Garden’s personnel manual, which states, “This is a non-union health center...if you are approached to join a union, we sincerely hope you will consider the individual freedoms you could give up, and the countless risks you could be taking.” After workers were in fact fired for joining unions, Compa notes, the NLRB asserted that Palm Garden must reinstate employees, as they had violated the workers’ right to free association. Still rejecting rehiring the employees, Compa explains that Palm Garden appealed to federal court, where the case still remains pending indefinitely. Furthermore, while the Supreme Court may uphold freedom of association, this does not mean the right can be strictly enforced throughout the United States, as appealing to federal courts demonstrates a significant challenge. Additionally, Compa notes how freedom of association has been restricted for food processing workers. Specifically, Compa discusses the abuses faced by Smithfield workers in North Carolina, a state dominated by the food processing industry. Firing union activists and actively intimidating and discriminating against organizing workers, the Smithfield Plant violated its workers' freedom of association in numerous ways. Compa stresses that these abuses were ultimately the result of federalism, a system that contributes to the restriction of freedom of association. Compa states, “Instead of fulfilling the affirmative responsibility of government authorities to protect workers’ rights, state power was used to interfere with workers’ freedom of association in violation of international human rights norms.” Noting how local police were permitted to intimidate workers at the Smithfield Plant, Copa affirms how local authorities restrict freedom of association, countering federal law. This demonstrates how the division of state and federal power can weaken the strength of freedom of association, as local governments can discreetly work to limit the right.
Freedom of Expression		The principles of federalism play an interesting role in the manner in which the right to freedom of expression is exercised. Historically, the founding fathers were divided on whether there should even be a bill of rights; the Constitutional Convention of 1787 did not include an explication of rights in the writing of the Constitution (Hail, 2020). The Bill of Rights was written as an afterthought, and as political scientist James Burnham observed, “ ‘These rights, in short, are limits, not powers’ (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights” (Hail, 2020). Eventually, with the growth of the Union over the next 200 years, state constitutions started to include explications of the protected rights within their states, and as a result, some states are more protective over individual rights than the federal government itself: “For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.” (Hail, 2020). Federalism scholar Daniel J. Elazar observed that the states participate in policy experimentation and also provide more legal protection in addressing the unique and specific local/regional needs (Hail, 2020). However, in terms of actual exercise of the freedom of expression in particular, and related conflicting law between that of state and federal, “Federal speech laws survive more than half the time, state laws survive only a quarter of the time, and local laws almost always fail. This free speech federalism is likely attributable to some combination of federal courts deferring to federal lawmakers and the relative poor quality of law- making at the lower levels of government.” (Winkler 187, 2009). The federal government holds more power regarding cases involving freedom of expression, often bending both federal and state law to its will, oftentimes going out of its way to justify federal laws while heavily scrutinizing already narrow state laws. In the 1999 case of United States v. McCorkle, a federal court declined to identify the federal government’s reasoning for compelling secrecy regarding an order sealing transcripts of in camera proceedings sought by a newspaper. Another court deemed that the newspaper who was seeking access to the transcripts had failed at its job to offer effective alternatives to complete closure, “yet, under strict scrutiny the burden of showing no less-restrictive alternatives belongs to the government, not the challenger. Moreover, the newspaper had no information about what the subject of the bench conferences was and thus could not reasonably be expected to offer suitable alternatives to closure” (Winkler 172, 2009). This case saw federal right-of-access restrictions upheld solely because courts supposedly did not follow the traditional requirements of the strict scrutiny standard. Another case, contrastingly, shows the federal courts doing everything they could to invalidate the state restrictions. In the 1993 case of Lind v. Grimmer, a federal court “invalidated the application of a state law denying media access to pending complaints filed with the state campaign-finance spending commission. The court reasoned that the government interest in encouraging people to run for office was not protected by the restriction because complainants and others remained free to air their charges informally to the public. Yet, the same could be said about any restriction on the right of access” (Winkler 172-173, 2009). Since the 1965 case of Bond v. Floyd, legislators, like any other citizen, are protected under the free expression embodied in the First Amendment. After being elected to the Georgia House of Representatives, Julian Bond, who was an African-American, was refused his seat due to anti-Vietnam war statements he made. Some House members challenged that his statements aided the US’s enemies and violated his mandatory oath to support the Constitution and therefore, he was not permitted to a seat in the House (Hudson Jr., 2009). The Court ruled in favor of Bond due to his fundamental rights to freedom of expression and speech because: “Free expression in the legislature not only serves the deliberative process and allows voters to choose their representatives according to their expressed beliefs and opinions, it also reinforces the constitutional safeguards of federalism and the separation of powers. As an expressive act that registers the will, preference, and opinion of a legislator, voting performs a unique communicative function. It expresses loyalty or dissension, agreement or abstention. It can also inform voters of a legislator's position on matters of public concern. Not only is legislative voting expressive, it is also representative and political, and therefore critical to the proper functioning of participatory democracy” (Scherr 257, 1991). From the provided evidence, federalism can serve to protect the right to freedom of expression, but oftentimes, it allows for the federal government to somewhat bully state courts into the decisions that best suit them at the time. References: Federalism, Michael W. Hail, The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro. Freedom and Federalism: The First Amendment’s Protection of Legislative Voting, Steven N. Scherr, 257, The Yale Law Journal, 1991 New Haven. Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo Free Speech Federalism, Adam Winkler, 172-173, 187, Michigan Law Review, 2009 Ann Arbor.
Freedom of Religion		In regards to gay marriage and religious freedom, two often interconnected topics, federalism is particularly apparent. Furthermore, many conservatives argue that states should be able to use religious rights in deciding whether or not gay marriage is legal. Robert A. Levy of the Cato Institute explains how technically, this position is legally valid, as “Clearly, federalism allows states to decide whether to recognize both same-sex and conventional marriages, or assign a different label, or privatize marriage altogether.” In this way, Levy emphasizes that due to federalism, depending on the region of the country, religious rights may be used to justify denying gay couples the ability to marry. Though, ultimately Levy questions the realistic strengths of federalism, asserting that the Constitution’s limits on discrimination outweigh the powers allocated to the states by federalism. Thus, according to Levy, federalism does not allow for states to exercise religious rights in a way that permits them to discriminate against LGBTQ+ individuals. Following this logic, federalism can be viewed to weaken the exercise of religious freedom. Additionally, states’ varying approaches to school prayer demonstrate how religious rights are subject to federalism. Although federal law prohibits prayer in public schools, upholding it to be a violation of the establishment clause, certain school districts have acted to protect school prayer. For example, nearly forty years after Engel v. Vitale and Abington School District v. Schempp, which struck down on school prayer, Santa Fe Independent School District v. Doe proved school prayer was still alive in certain states, as the case presented a situation of student-led prayer prior to high school football games. Demonstrated by Santa Fe, while federal law may prohibit school-mandated prayer, certain states may permit public school districts to contradict these laws with student lead prayer. Furthermore, depending on the state, the degree of secularism within public schools may differ. This emphasizes how federalism can bolster religious rights, as state’s rights may permit them to evoke certain religious practices misaligned with federal law. Lastly, state constitutions additionally demonstrate how federalism affects religious freedom. Noted by Christopher Hammons, numerous states invoke religion in their constitutions, asserting God to be “the foundation of order, liberty, and good government.” (226) The emphasis on god and direct religious references within certain state’s constitutions demonstrate how federalism, which provides states with specific liberties, allows for a varying image of religious freedom throughout the United States. REFERENCES: Christopher Hammons, State Constitutions, Religious Protection, and Federalism, 7 U. ST. THOMAS J.L. & PUB. POL'Y 226 (2013) Robert A. Levy, Marriage equality: religious freedom, federalism, and judicial activism, SCOTUSblog (Aug. 15, 2011, 4:32 PM), https://www.scotusblog.com/2011/08/marriage-equality-religious-freedom-federalism-and-judicial-activism/
Freedom of the Press		Federalism as a system does not affect the way freedom of the press is interpreted, exercised, or applied.
Privacy Rights		With federalism, there is often one state that leads the rest – in terms of privacy legislation, California leads the United States, and the German state Hessen led Germany and the European Union (Mills, 2008, 167; Petkova, 2016, 5, 4). Though the EU is not properly a federalist entity, federalism encouraged and promoted privacy as a fundamental right. Privacy rights began in Hessen, became federal law after German parliamentary action, and eventually became supranational as the EU passed encompassing privacy legislation in 1995 (Petkova, 2016, 4). Later iterations of the 1995 law led to the 2018 General Data Protection Regulation which has provisions that help regulate information privacy outside of EU borders, including in the United States. In the United States, federalism clarifies and further protects the right to privacy. This is important because the federal right is still based on Supreme Court opinions rather than explicit constitutional provisions or legislation. This lack of explicit language allows states to “provide leadership in the privacy area because of the constitutional options available” and drive for change (Mills, 2008, 162; Petkova, 2017, 24). As of 2008, ten states in the US (Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington) explicitly protect privacy in their constitutions (Mills, 2008, Appendix II). At least twenty states have passed privacy legislation (with some overlap between the ten with constitutional provisions, namely California). State privacy legislation focuses on data privacy, improving security measures for storing personal information, notifying individuals of security breaches, and enabling security alerts and/or freezes on credit reports (Mills, 2008, 167). Most states hoped their passage would signal the federal government to pass privacy legislation (Sabin, 2021) . Schwartz acknowledges that this legislation would be possible under the Commerce Clause, though the effects would depend on the text ( 2009, 922). Some scholars are wary of federal legislation as states have created a successful legal landscape based on experimentation and consequence, and federal legislation could disrupt the balance, create uncertainty, and be hard to amend (Bellia, 2009; Schwartz, 2009, 922-931). Federalism results in the lack of consistent privacy laws and rights. For instance, in Germany, every company needs to have a data protection officer. In the EU, the GDPR only requires public companies and certain private companies to have this position, while allowing all other private companies to opt-in to having this role (Petkova, 2017, 20). These different laws can alter privacy protection outcomes based on the jurisdiction in which the incident took place, especially if the rights are challenged in courts. This was the case in Florida’s Rolling v. State. Six college students were brutally murdered in Gainesville, Florida and their families hoped to prevent the press from releasing the photos of their bodies. Mills, who was asked to consult on the case, knew this would be a complex legal question as the Florida laws technically allowed for these records to be open to ensure police accountability, but he also knew the families would suffer severe harm were these photos to appear publicly. The Florida Supreme Court decided that the laws in place allowed for a compromise: the photos could be made available to the public by the records custodian upon a reasonable request provided there were restrictions on the copying and removal of the photos. Mills acknowledges that had the situation been occurred in another jurisdiction, the result would not have been the same and the photos likely would have been published (Mills, 2008, 247-251). References: Bellia, P.L. ( 2009) . Federalization of Information Privacy Law. Yale Law Journal 118(5), 868-900. https://www.jstor.org/stable/40389431 Mills, J.L. ( 2008) . Privacy: The lost right. Oxford University Press. Petkova, B. ( 2016) . The Safeguards of Privacy Federalism. Lewis & Clark Law Review 20(2). https://www.law.nyu.edu/sites/default/files/upload_documents/Petkova%20The%20Safeguards%20of%20Privacy%20Federalsim_0.pdf Petkova, B. ( 2017) . Domesticating the “foreign” in making transatlantic data privacy law. International Journal of Constitutional Law 15(4), 1135- 1156) . https://www.law.nyu.edu/sites/default/files/upload_documents/Petkova%20Domesticating%20the%20Foreign%20in%20Making.pdf Sabin, S. ( 2021, Apr. 27). States are moving on privacy bills. Morning Consult. https://morningconsult.com/ 2021/ 04/27/state-privacy-congress-priority-poll/ Schwartz, P.M. ( 2009) . Preemption and privacy. Yale Law Journal 118(5). https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5155&context=ylj
Voting Rights and Suffrage		Federalism is a system in which governing and law-making powers are shared or divided between federal authorities and regional entities, such as states. One of the policy areas heavily influenced by federalism is voting rights. The right to vote has undergone several changes in scope and implementation as a result of the ongoing ebb and flow between state and federal powers. The sections that follow will highlight major legislative and judicial events that affected- and continue to affect- voting rights in America as a result of federalism. Two important aspects of the relationship between federalism and voting rights are found in our Constitution. The first of these is Article I Section IV, which empowers state legislatures to set the parameters for their own elections. Because each state can have different electoral procedures and regulations, the exercise of voting rights is varied. It may be harder to exercise one’s right to vote, for example, if their state has stringent identification laws or restrictions on mail-in and absentee voting. As much as the federal government may want to protect voting rights universally, the federalist implications of Article I Section IV gives states the power to determine the scope and practice of suffrage during their elections. Another portion of the Constitution relevant to federalism is the section of Article VI commonly referred to as the Supremacy Clause. In contrast to the provision mentioned above, this clause empowers the federal government with a degree of control over the states. Specifically, the clause asserts that the laws of the federal government should be recognized as “the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” In relation to voting rights, the supremacy clause gives the federal government the authority to set national standards for suffrage, even if individual states have passed their own legislation. The Supremacy Clause is a facet of federalism unique to the United States. One of the most significant developments in American voting came as the federal government exercised this legislative supremacy by passing the Voting Rights Act of 1965. The VRA outlawed the discriminatory electoral procedures that had been adopted throughout the South following the Civil War. Most notably, its passage brought an end to the use of literacy tests to determine voter eligibility, which had long been a thinly veiled tool of racial discrimination and disenfranchisement. The VRA significantly altered the scope of American voting rights and remains an example of effectively leveraged federal supremacy. The 1965 Voting Rights Act and the changes that followed were thus an embodiment of federalism’s balancing of power. Another major development in voting rights affected by federalism came in 2013, with the Supreme Court’s landmark decision in Shelby County vs. Holder. Shelby County, Alabama had issued a challenge to Sections 4 and 5 of the Voting Rights Act which stated certain states with a history of racial discrimination had to receive federal preclearance in order to make changes to their voting laws and procedures. With a 5-4 decision, the Supreme Court ruled in favor of Shelby County, and deemed both sections 4 and 5 of the VRA unconstitutional. The fact that blatant discrimination in the form of literacy tests was no longer present meant that Congress lacked the authority to impose these VRA restrictions, and that doing so “violated the ‘basic principles’ of federalism” (Charles 2015, p. 113). Whereas the passage of the Voting Rights Act represented a victory for the authority of the federal government, the decision in Shelby County vs. Holder swung the pendulum back towards states’ rights. This fluctuation between state and federal authority is the true embodiment of federalism. Federalism’s impact on voting rights continues to develop and evolve today. As a response to alleged fraud in the 2020 presidential election, numerous state legislatures have advanced bills that would tighten regulations on voter ID, in addition to mail-in and absentee voting procedures. The modern battle over voting rights takes place within the arena of federalism, as different levels of government vie for authority over elections. In conclusion, federalism has a major impact on the exercise and application of voting rights in America. Federalism has played a consistent role in shaping the balance of power, from the writing of the Constitution, to the struggle for civil rights, to the congressional politics of today. In a piece for Texas Law Review, David Landau and his coauthors effectively summarize the function of federalism with relation to voting: “By separating and dispersing the functions of governance—the day-to-day work of governing—U.S. federalism provides some protection against authoritarianism. The decentralization of authority over elections offers one particularly dramatic example of this dynamic in action” (Landau et al. 2021, p.96). In other words, federalism remains a central component of American politics, and will continue to dictate voting rights and suffrage in future elections. References: Charles, Guy-Uriel, and Luis Fuentes-Rohwer. 2015. “Race, Federalism, and Voting Rights.” University of Chicago Legal Forum, January, 113–52. Landau, David, Hannah Wiseman, and Samuel Wiseman. 2021. “Federalism, Democracy, and the 2020 Election.” Texas Law Review 99 (February): 96–121. Sarbanes, John. 2021. For the People Act of 2021.