Should whether I need a photo ID to vote, or how much that vote will count, really depend on the personal caprice of what state I happen to live in?
The presidency of Donald Trump has stimulated new interest on the part of liberals in the concept of federalism, which has long been a favorite cause of conservatives. Federalism in the United States is characterized, rather counter-intuitively, by a wariness of centralized government and a favoring of states’ rights over federal control. Early federalists like Thomas Jefferson and James Madison resisted the centralization of power urged by nationalists like Alexander Hamilton, and their views were reflected in the Tenth Amendment to the Constitution, which reserves to the states powers not specifically conferred on the federal government.
It’s fair to say that federalist attitudes have been opportunistically adopted by both the right and the left depending on the issue and who’s in office. Liberals have taken solace in a new-found love of states’ rights in reaction to Trump’s immigration, law enforcement, environmental, and education policies. State and local governments have become the new bulwarks of the “resistance,” protecting “sanctuary cities” and opposing the new administration’s efforts to quell investigations into racially biased police action.
This sort of contextual federalism is nothing new: when liberals successfully attacked the Clinton-era Defense of Marriage Act (DOMA), which defined marriage for purposes of Federal law as solely between a man and woman, they did so largely on the ground of the Tenth Amendment’s reservation of power to the states to regulate marriage (as to which the Constitution is silent). Yet when it came to challenging state laws that prohibited gay marriage in the Obergefell case, all that was forgotten and the hunt was on for a Constitutional theory that would override and unify the states’ varying treatments of same-sex marriage.
Conversely, some of our most conservative presidents, like Reagan and Bush II, were agents of massive concentrations of federal power, the growth of federal bureaucracy, and the ballooning of the federal debt.
The election and presidency of Donald Trump can be seen as the best argument ever for a strongly federalist system. Why would we want a powerful, centralized executive government if we run the risk every four years that the whole apparatus could fall into the hands of a manic incompetent — or, worse, into the hands of a thoughtful, effective ideological extremist? (I for one prefer the former to the latter, which is the only, but nonetheless dispositive, reason I don’t want Trump to be impeached.)
On the other hand, if we didn’t have the electoral college – a federalist mechanism if ever there was one – Trump wouldn’t be president in the first place.
Which begs the question: is federalism necessary?
My own Hamiltonian attitudes about the old tug of war between states’ rights and national government no doubt have their origins in my childhood, when I read a lot of science fiction. Most of the visionary novelists of my youth (Asimov, Bradbury, Clarke) imagined a future when borders and nationalities had dissolved and humankind had joined together on the grand, collective project of exploring and colonizing outer space. Occasionally these supra-national future societies were depicted as cautionary metaphors of totalitarianism, but more often than not they reflected the optimistic premise that human progress, politically speaking, was a steady upward march from tribes to monarchies to democratic nation-states to leagues of nations to global government to – eventually – no government at all, a return to the political innocence of Eden.
In this fanciful but (to a young boy) attractive world-view, borders were bad, the main product of nationalism was war, geographic boundaries were antique fabrications of self-serving power mongers, and the chief labor of government was to realize a kind of radical libertarianism based on the perfectibility of man.
This utopian brand of secular spiritualism is today deemed preposterous by both religious and political conservatives, who are certain, for different reasons, that any effort to unify the bulk of humanity under a common civic enterprise is by definition doomed. In the United States, this profound skepticism takes the form of federalism. Liberals tend to be more like my young, science fiction-reading self.
As adults and readers of history rather than space opera, much of our thinking about federalism is hobbled by a different kind of fiction — our deification of the framers of the Constitution, and our treatment of that document as holy writ rather than the product of bruising debate and pragmatic compromise among brilliant men who were nonetheless very much of their place and time.
Theirs was a rural, agrarian society in which movement among the various states was difficult and rare, and the fastest mode of communication over distances consisted of carrying pieces of paper from place to place by horse or boat. Even if the framers had preferred a strong central government, they would have been confronted with the insurmountable fact that no such government could have efficiently communicated among the far-flung colonies, let alone coordinated their activities. This, and the simple fact that the states and their governments pre-existed the union, made the Tenth Amendment’s reservation of powers to the states both logical and inevitable. But that doesn’t mean that it makes as much sense in the 21st century as it did in the 18th.
Apart from the simple originalist assertion that the Constitution calls for it, the modern intellectual arguments for federalism boil down the following:
The “laboratory” argument. This is the notion, close kin to the Miltonian “marketplace of ideas” theoretically offered by the First Amendment, that in our federalist system a particular state may try out what Louis Brandeis, judicial inventor of the “right to privacy” (and no champion of the right), called “novel social and economic experiments;” or, conversely, that a state may have a particularly bad idea, and the rest of the states can sit back and watch how it goes and decide what to copy or avoid.
The obvious counter-argument is that state-by-state experimentation is grossly inefficient and potentially chaotic. One need only remember the resistance of southern states to desegregation, or the more recent, decade-long program of political and racial gerrymandering of voting districts undertaken by the Republican right, to realize that entire lifetimes of injustice and hardship can pass for the unlucky populations of certain states while the federalist petri dish bubbles away. Massachusetts experimented with an early form of Obamacare, and it was a great local success, but not only did it not sweep the nation, it became an albatross around Mitt Romney’s neck in his bid for the presidency.
A nation of state-by-state lawmaking on important social issues is dysfunctional in an era, unimaginable to the framers, when the average citizen can have multiple state residencies over a working career and can cross the continent in an afternoon. We can, however, imagine the patchwork of state ant-abortion laws that will follow the increasingly likely reversal of Roe v. Wade, or the hodgepodge of local environmental standards that will result from the dismantlement of the EPA. Should whether I need a photo ID to vote or, indeed, how much that vote will count, really depend on the personal caprice of what state I happen to live in? State-by-state regulation of the health insurance industry has driven up premium costs and made the delivery of health care more costly and inefficient. Even Trump was heard to claim that his solution to Obamacare would involve removing “the lines,” by which he meant state lines, allowing a competitive national marketplace to flourish.
The “local competence” argument: This bromide holds, with appealing but largely unsupported logic, that states are more effective in addressing local concerns than distant national bureaucracies. Again, the south provides a profusion of counterexamples. The chronic poverty and disproportionate levels of disease (see graphic) in our southern states suggests either a paucity of remedial ideas at the state level or a chronically complacent acceptance of things as they are (or, perhaps most likely, that local economy trumps everything). Situations like those depicted by the graphic below cry out for some kind of federal intervention. Unless they do something so ostentatiously silly as North Carolina’s recent attempt to legislate bathroom use, state legislatures operate mostly below even local radar, and tend to do so until whacked upside the head by the media or national consensus.
The proposition that greater administrative competence resides at the state and local levels is constantly refuted by incidents like the recent United Airlines fiasco (the individuals who actually performed the clumsily brutal removal of the passenger – several idiots, as revealed by viral passenger videos, dressed unprofessionally in blue jeans – were not in the employ of any airline, but were officers of the Chicago Aviation Department), or the Flint, Michigan water tragedy, or the recent resignation of the governor of Alabama (where three of the last six governors have been convicted of crimes), or Chris Christie’s Bridge-gate imbroglio, each an example of the lax standards and casual corruption that are the natural outcome of working with people just like yourself in a fiefdom where you make your own rules.
The Federal bureaucracy grew not, as the right would have us believe, out of a liberal conspiracy to accrete power in a centralized national government for its own sake, but out of the raw necessity to establish and enforce minimal civic standards that states and localities were too often willing to ignore, from minority rights to clean water to safe infrastructure to the conditions under which people work. All politics may be local, but local authority is not always politic.
The “diversity” argument. This is perhaps the strongest emotional argument for federalism, as it calls on our patriotic love of the fact that we are a nation of wildly differing geographies, cuisines, architectures, accents, religions and, yes, politics, and those differences are at least to some degree doted upon and preserved by the states that derive their identities from them. But this is mostly an exercise in public relations and tourism on the states’ parts, and it’s doubtful that the absence of the Tenth Amendment would make any difference in whether you’d still go to Nashville for bluegrass or to New York for a career in finance.
At the level of politics, however, the protection of diversity gets more dicey, as it can be either an opportunity for dialogue or prescription for polarization. In an age of self-reinforcing social media bubbles and relatively easy relocation, people’s enhanced ability to retreat to where they are most comfortable, be it the Castro in San Francisco or the plains of Wyoming, means that regional value-enclaves become both more likely and more entrenched, and communication among them less necessary as a political matter. The utter breakdown of national statesmanship that we’re witnessing in Congress and the executive branch today is in part the result of the ease with which regional diversity can degenerate into a kind of civic isolationism, where one’s political opponent is not only wrong, but alien.
I come back to the secular spiritualism of the utopian novels of my youth, that hopelessly naïve wish for fewer borders, fewer regionalisms, fewer governments, more actual political unity. How in our wildest imaginings would we achieve that? Not, I would suggest, through more federalism.