Justice Kennedy: Federalism exists to guarantee individual liberty

Unanimous Supreme Court decisions often don’t get the same coverage as closed cases, but yesterday’s decision in Bond c. United States deserves mention because Justice Kennedy once again eloquently described the relationship between federalism and individual liberty.

Here is a sample:

The federal system is based on what might at first sight seem like a counter-intuitive idea, namely that “freedom is enhanced by the creation of two governments, not one”. Alden v. Maine, 527 US 706, 758 (1999). The writers concluded that the division of powers between the national government and the states enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers derive.

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Federalism is more than an exercise in drawing the line between different government institutions for their own integrity. “State sovereignty is not just an end in itself: ‘On the contrary, federalism guarantees citizens the freedoms that flow from the diffusion of sovereign power.’

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Federalism guarantees the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek to express themselves on the destiny of their time without having to rely solely on the political processes that control a distant central power. Certainly, of course, these objects cannot be asserted by the judiciary in the absence of a proper case or controversy; but the individual liberty guaranteed by federalism is not simply derived from the rights of the States. Federalism also protects the liberty of all people within a state by ensuring that laws passed beyond delegated governmental authority cannot direct or control their actions. See ibid. By denying a government complete jurisdiction over all matters of public life, federalism protects the liberty of the individual against arbitrariness. When the government acts beyond its legitimate powers, this freedom is at stake.

The limitations inherent in federalism therefore do not relate to rights belonging solely to the States. States are not the only intended beneficiaries of federalism. See New York, supra, p. 181. An individual has a direct interest in opposing laws that upset the constitutional balance between the national government and the States when the application of these laws causes concrete, particular and reparable harm. Loyalty to the principles of federalism does not belong only to the States.