Though many conservatives claim they desire constitutionally required, Court-imposed federalism in the field of criminal law, and liberals claim that they do not, I suggest that a deeper exploration of the issue may reveal that their actual preferences are just the opposite. The federalism conservatives say they want consists of the Court striking down meaningless federal criminal statutes that duplicate similar pre-existing state prohibitions, and it accomplishing nothing. The federalism they may receive, if the Court continues on its current path and enforces the doctrine neutrally, consists of striking federal legislation that curbs state-protected behavior they find morally reprehensible. This hinders their conservative agenda. On the other hand liberals, long in favor of intense federal judicial protection of individual liberties enshrined in the Bill of Rights but a deferential approach to judicial review under the Commerce Clause, may be surprised to find that federalism can enhance individual autonomy and lifestyle preference well beyond what the federal constitution mandates. I contend that there are actually two distinct forms of federalism: the "decentralization" or "50-labs" version, and what I call "independent-norm" federalism, and the difficult issues we face are presented only by the latter. The first version seeks to preserve local control of the criminal justice system and to foster diversity and experimentation that might improve efficiency, in areas where there is nationwide agreement as to general goals, though perhaps not as to the means best used to achieve those goals. The second form of federalism fosters community expression of morality by protecting individuals from federal prosecution for generally victimless behavior that local and state governments have determined is blameless, where there is no nationwide consensus on the morality of the behavior. In Part I of this article, I explore the differences between the two form of federalism outlined above and argue that the former is adequately protected in the criminal law area because ordinary preemption doctrine is inapplicable, few private causes of action are available, and the federal law enforcement apparatus is small relative to the states. Where the Court does insist on "protecting" states from criminal legislation that essentially duplicates and assists these states, it may waste time and institutional capital, but effects no real change. Most such federal criminal statutes are primarily symbolic "feel good" enactments that generally can be reenacted in a constitutional manner, or be instituted instead by conditional or outright grants of manpower and resources to the states. Moreover, those individuals who violated the stricken federal criminal statutes can be prosecuted on the state level. This is clearly not the case for independent-norm federalism. Where Congress enacts legislation to criminalize behavior specifically protected by the state government, the Court is called upon to prevent the national government from infringing upon state created liberty interests. Where only a few states are outliers, they will probably not succeed in the national political process in protecting their citizens from majority will. Unlike instances of concurrent jurisdiction, federal prosecutions in these cases will have a significant chilling effect on the behavior, well beyond the small number of cases that can actually be brought. In Part II, I explore whether such independence in norms is desirable, and argue that independent-norm federalism can be fostered only by a bright-line test policed by the judicial branch. Further, I suggest that a new approach may be unwarranted, as recent Commerce Clause decisions, as well as decisions striking down legislation enacted pursuant to section 5 of the Fourteenth Amendment, are already leading us in this direction. A strict requirement that the prohibited behavior cross state lines, or that it have a direct economic spillover effect on neighboring states, may accomplish the goal in a manner least subject to the very real danger posed by the ideologically driven agendas of some of the Justices. In Part III, I review how three recent controversies will be affected by the Court's future federalism jurisprudence where independence of norms is at issue: same-sex marraiges, the "right-to-die," and medicinal marijuana. Despite conservative intolerance of these liberties, and the federal government's attempt to control state law in each of these cases, a neutrally-enforced, Court-driven federalism doctrine could well result in some measure of protection of these state-created rights from federal criminalization.
Susan R. Klein, Independent-Norm Federalism in Criminal Law [Colloquium on Community Policing], 90 California Law Review 1541 (2002).