The recent leak of the draft Supreme Court majority opinion in Dobbs v. Jackson Women’s Health has provided another instant x-ray of the deep fractures in our body politic. The opinion’s flat reversal of Roe v. Wade has been derided on the left as the cavalier usurpation of what had been, for fifty years, a settled constitutional right, and applauded on the right as a long-overdue return of a fraught moral issue to the tender mercies of the democratic process.
But beyond its immediate social and political consequences, Roe’s reversal will test yet again whether the very idea of “federalism” on which the nation was founded – in which the states exercise broad legislative power independently of the federal government – is viable in the 21st century. Put differently, can there be a “democratic process” in a nation composed of multiple conflicting democracies?
The Dobbs case is the direct result of state legislation that blatantly violated the Supreme Court’s prior rulings on abortion with the express intent of fomenting litigation that would provide the newly reconstituted Court the opportunity to revisit this touchstone culture war issue. One of the consequences of Roe’s reversal will be a patchwork of state laws, some permitting abortion until the third trimester, others outlawing it when performed after viability, or after six weeks of pregnancy, or, as in the case of legislation just passed in Oklahoma, upon conception.
And actually, “patchwork” is too benign a term to describe the unprincipled chaos of conflicting laws that will make the availability and legality of an abortion entirely contingent on where a woman lives and her ability to travel somewhere else.
This fresh reopening of old wounds comes in the wake of the worst pandemic in a hundred years, to which we the people responded in a similarly chaotic way, from inept attempts by the federal government at top-down crowd control and mass inoculation, to the cynical politicization of a health threat by state and local governments bent on keeping their economies booming at all costs, often in willful disregard of basic medical science. Lockdowns, masking, school closures, sports bubbles, college reopenings, vaccine carding, all happened, or didn’t, depending not on the case counts in a particular region, or the actual conditions in this or that hospital system, but on whether one lived in a red state or a blue state.
The recent mass shooting in Buffalo highlights yet again another gaudy patchwork of laws whereby some states attempt to constrain the preposterously ready availability of firearms, while other states and localities ensure not only that availability, but the right to carry and brandish guns in public, no matter the sanity or training of the gunowner or the nature of the gun.
The list of federalist dysfunctions goes on: the Electoral College, which confers on the states the power to decide how each of them will select and certify electors, and regularly defeats the will of the people by installing a president who failed to win a majority of the popular vote; the crazy quilt of state insurance and licensing laws that drive up the cost and impede the availability of medical care; the hodgepodge of state and local environmental standards that make a mockery of efforts to address climate change and sea level rise; the presumption that states can selectively nullify the First Amendment and outlaw the mention of Critical Race Theory or gay marriage in public schools; and perhaps most critically to any democracy, the power of states to determine how voting districts are configured and how elections are run within their borders.
Of course, one’s attitude toward states’ rights depends largely on the issue and who’s in office. During Trump’s regime, liberals in blue states invoked states’ rights in reaction to Trump’s immigration, law enforcement, environmental, and education policies. When liberals attacked the Defense of Marriage Act, which defined marriage as solely between a man and woman for purposes of federal law, they did so largely on the ground of the Tenth Amendment’s reservation of power to the states to regulate marriage. Yet when it came to challenging state laws that prohibited gay marriage, all that was put aside and the plaintiffs in the Obergefell case successfully argued a constitutional ground for overriding and unifying the states’ varying treatments of same-sex marriage.
Much of our thinking – or absence of thought – about federalism today is hobbled by the rise of “originalism,” our deification of the framers of the Constitution, and our treatment of that document as holy writ rather than the product a few months’ debate among a small group of ordinary if determined men who were 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 on horseback. 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 effectively communicated among the colonies, let alone coordinated their activities. This, and the simple fact that the colonies 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 what was necessary in the 18th century makes sense in the 21st, and we owe it to ourselves to question why we persist with our rigidly federalist model of governance.
Apart from the simple assertion that the Constitution calls for it, the modern arguments for federalism boil down to the following:
The “laboratory” argument. This is the notion that in our federalist system a particular state may try out what Louis Brandeis 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 learn what to avoid.
The obvious counterargument is that, as recent history has made plain and the reversal of Roe will exacerbate, state-by-state experimentation is grossly inefficient, often unfair, and can be dangerously chaotic. One need only recall the resistance of southern states to desegregation, the decades-long program of gerrymandering of voting districts pursued by both political parties, or the recent effort by a number of state legislatures to delegitimize the last election, to realize that entire lifetimes of injustice, hardship, and wasted opportunity can pass for the unlucky populations of certain states while the federalist petri dish bubbles away. State-by-state lawmaking on important social and economic issues and the mechanisms of democratic voting is arbitrarily divisive in a nation of 50 states, unimaginable to the framers, where the average citizen can have multiple state residencies over a lifetime and can cross the continent in an afternoon.
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. But just one example – the terrible variation in basic health conditions among the states – belies the myth of local competence. The disproportionate levels of chronic poverty and disease in our southern states (see graphic) suggests either a lack of ideas at the state level or a chronically complacent acceptance of things as they are. Situations like those depicted in the graphic below cry out for some kind of national intervention, but unless a state legislature does something so ostentatiously out of step as Oklahoma’s recent upon-conception abortion ban, it operates mostly below even local radar, and continues to do so until whacked upside the head by economic forces or overwhelming national consensus.
The federal bureaucracy grew not, as some conservatives 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 are too often willing to ignore, from minority rights to clean water to safe infrastructure to medical care to the conditions under which people work. All politics may be local, but local authority is not always politic.
The “too diverse to govern” argument. This is perhaps the strongest emotional argument for federalism, as it calls on our underlying pride in the fact that we are a geographically huge nation of wildly differing terrains, cuisines, architectures, accents, races, religions and, yes, politics. One consequence of that diversity, this argument goes, is that a single national set of laws and standards would be impractical and inappropriate, and in the bargain would flatten our robust regional diversity into a boring sameness.
But 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. And as a political matter, our national diversity has proved itself to be less an occasion for pride than a prescription for polarization. In an age of self-reinforcing social media bubbles and easy travel, people’s tendency to place themselves, physically and politically, 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 absence of consensus-oriented politics that we see 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 fellow citizen from that other place is not only wrong, but unworthy even of respect.
Federalism is failing us, but what is to be done?
In a different world, the United States would have convened a second Constitutional Convention by now. Who can believe that the founders, had they been born in the 20th century rather that the 18th and were presented with the Constitution, as amended to date, as the framework for a brand-new continental nation of 300 million people, would seriously consider adopting it as-is? They would cut and paste some of it, certainly, but a lot of it would go in the trash, starting with the anachronistic and tragically dangerous Second Amendment.
Close behind it into the dustbin of history would go the Electoral College, an elitist, anti-democratic, and, in the modern era, thoroughly unnecessary stumbling block in the process of electing a president.
The Tenth Amendment’s reservation of powers to the states might come under fresh scrutiny, with a view toward either enumerating far more more areas over which the federal government would have pre-eminent authority, or restricting states from passing statutes that conflict with the laws of neighboring states.
Our New Founders would probably keep the House of Representatives, but they’d require that its size reflect the country’s vast growth in population since 1929, when the number of House seats was arbitrarily fixed by statute at 435. James Madison (deserving of his own Broadway show) wanted the Constitution to require that the size of the House be proportional to the country’s population, but that amendment failed. The New Founders might establish a constitutional rule that the number of representatives equal the cube root of the population, a relationship typical of the national legislatures of other modern democracies. This would increase the current House to 593 members and allow for an allocation of House seats among the states in closer proportion with each state’s population.
And while they’re at it, might as well make gerrymandering a violation of the Constitution and require that Congressional district boundaries conform to the nonpartisan principles of contiguity, conformity with natural and political boundaries, and compactness.
They might decide to dispense with the absurd political theater that accompanies executive appointments and have the new Constitution establish a permanent, bi-partisan commission to develop and maintain lists of eminent candidates for cabinet posts, the Supreme Court, and other senior governmental positions over which the President has appointment or nominating authority, and require that nominees and appointees be selected from those lists.
And speaking of the Court, our New Founders might take a look at recent history and impose term limits on members of Congress and Supreme Court justices.
They might even conclude that the current continental United States is indeed too large and unwieldy, too geographically and ideologically diverse, to function as a single union, and break it down into several regions, each with its own “federal” government.
It’s all fantasy, of course, primarily because the New Constitution would have to be adopted by the very states whose excessive and conflicting power would be restrained by it. We’re far too mired in our own past and sanctimonious constitutional idolatry to rationally assess where we’ve arrived and how we got here, and to ask if there might be a better way.
Or are we?