But that inference is in fact highly questionable. Real federalism , on the other hand, cannot be promoted wholesale, generically, and as a general proposition in the legislative arena. One, there are no votes for any challenge to the premise of congressional omnipotence. In each case, successful experiments pave the way. Just as welfare reform was a partial federalism experiment that has increased public confidence in federalism, so real federalism experiments in other arenas need not be perfect.
Constitutionalists are nervous about preempting the entire field.
In tort law, plaintiffs' lawyers trawl the country in search of a hospitable jurisdiction, and the craziest jury in Beaumont or Texarkana gets to determine the legal regime for the rest of the country. However, uniformity is preferable to diversity and choice only so long as the choices are being made by one's enemies. We have fifty different regimes governing corporate chartering. The reason is that the firms, not their customers, get to choose the jurisdiction whose laws will govern their transactions with customers. Firms sort themselves into the jurisdictions that are most to their and their shareholders' liking.