Is Federalism the Real Problem?

A fundamental building block of our system makes it nearly impossible to fix.

The weekend’s back-and-forth between Steven Taylor, myself, and the commentariat over court packing spurred by the death of Justice Ruth Bader Ginsburg has been illuminating. I don’t think many minds have been changed but it seems clear to me that there’s basic agreement that America’s system of government is highly unrepresentative and that our institutions, compounded by naked partisanship, are failing us. The disagreement is comparatively small: how big is the emergency and what remedies are justified in dealing with it?

But there was also an unspoken issue looming in the background until Michael Reynolds called it out: the very existence of states themselves and the related division of power that our system was built around.

He begins with a more colorful version of an observation I’ve made many times:

This is a 233 year-old document. It’s not the fault of the Framers – you try and design a durable system of government for the year 2253. You know, 233 years from now, roughly the time of Kirk, Spock, Bones, Klingons and Romulans.

It is absurd on its face that a set of rules designed for slave-owning tobacco farmers and tea importers in an era when people regularly died of disturbances of the bodily humours would work for a 330 million person, 50 state, coast-to-coast economic, military and cultural superpower.

While I very much admire the genius of the Framers, they were at their core politicians dealing the issues of the day. They were sent to Philadelphia to address the crises surrounding the arrangments under the Articles of Confederation, made a series of compromises to get sufficient buy-in to among the delegates present, and then ret-conned philosophical justifications for said compromises in the Federalist Papers to secure ratification.

At the core of the agreement was that it was among 13 sovereign states—literally, individual countries—who came together under a confederation to secure independence from the British Empire and then cobbled together a federal union that delegated just a handful of powers to a weak central state.

The illustration atop the document represents the schoolboy version of the arrangement. The graphic below represents a Political Science 101 view:

Alas, westward expansion quickly shifted this reality. The nation quickly grew in size and scope. We went, in relatively short order, from 13 states with four million total population living across the Eastern Seaboard to a continental power of 330 million spread from sea to shining sea and beyond. And only a handful of the later-admitted states had any pre-existing rationale for existence, much less any sense of sovereignty.

Additionally, as Steven has noted many times, while the Framers may have been geniuses, they were rather dumb about one rather obvious issue: political parties. The electoral system they designed for choosing the President failed the minute George Washington refused to be anointed unanimously to another term. And, rather quickly, partisanship changed the nature of checks and balances among the elected branches of government but also between states and the central government.

Within living memory of the Constitution, then, we were admitting states to the union not based on the preferences and interests of the people living there—in most cases, there weren’t that many of them—but on what political party they were likely to align with. By the 1830s, it became customary to add states two-by-two, such that the partisan balance in Congress was maintained. We did this right through the last two, in 1959, when we added Republican Alaska and Democratic Hawaii.*

Which brings us back to Reynolds:

The essential intractable problem is states. They make no goddamn sense, they mean nothing, they are random lines drawn on a map a century or two centuries ago. Because of states we have a non-representative national government, a government that can be hamstrung by the least successful states and the most backward populations. And we can’t do anything to fix the situation because: states. Just beautiful.

Now, I tend to agree with my co-blogger, Steven, that the problem isn’t states per se but rather the weird way in which they’re represented. Most notably, in the increasing disparity caused by each state getting two Senators and the related inequity in the Electoral College.

So, for example, Steven has proposed adding DC and Puerto Rico as states and KingDaddy and many commenters want to admit Guam, American Samoa, the U.S. Virgin Islands, and Northern Mariana Island as states either to balance out the Republican-leaning inequities caused by the system, basic democratic values, or both. And I oppose it because adding more tiny states (only PR is anything close to a median state population-wise) further distorts the system.

But while the representation issue compounds the problem, it’s not the whole of it. While I’m sympathetic to the view of R. Dave and others that the states serve as something of a proxy for regional interests, Steven is right that it’s actually more complicated than that:

The real divide is rural-urban. Atlanta residents, on balance, have more in common with Philadelphia ones in terms of governance needs and likewise rural Pennsylvanians and rural Georgians.

We allow ourselves to get lulled into simplistic thinking with Red states and Blue states or even simplistic regionalism.

We’re in agreement on that. “States” are rather weird entities. Unlike the nation, they have no control over their borders. Any citizen or Green Card holder can settle in any state they choose and the character of them can therefore change rather significantly over time.

I moved nearly two decades ago to the DC exurbs of Northern Virginia. We’ve become the center of gravity of the state, both in terms of population and economics. But most of us don’t think of ourselves as “Virginians” and, more importantly, most Virginians see us as carpetbaggers and resent our presence. We’ve turned a solid Red State into a fuzzy Blue one, even though the overwhelming preference of the state on a geographic, county-by-county basis is still rock-solid Republican. The same thing is happening in North Carolina and, to a lesser extent, Florida.

Still, I wonder how much of the commentariat agrees with the next bit of Steven’s comment:

The bottom line is that government should represent people, not real estate. Local governance issues and variations should be handled by local government.

I think most of the commentariat here—and, indeed, probably most of the country—don’t really support federalism at all. While conservatives tend to pay more lip service to the idea of local rule and “states’ rights,” it’s mostly because they realize they’re outnumbered.

But, for example, so much of the bitterness and norm-breaking that has surrounded the Supreme Court battles over the last half-century or more is precisely a function of public policy being nationalized. Democrats live in fear that another conservative Justice means Roe vs Wade would be overturned and the right to abortion would go away. In reality, little would change—most states would allow abortions and a handful of states would continue to make it practically impossible to get one. Conservatives, rightly, feared that a liberal court would impose gay marriage, transgender rights, and the like. Conversely, they would prefer to impose their preferences on these issues on the nation as a whole if they could.

While all of that was traditionally the province of the states, we no longer seem content to allow each to go their own way on matters not addressed in the Constitution. Indeed, of the “State Government Powers” depicted in blue on the Venn diagram atop the post, only Ratify Amendments to the US Constitution remains wholly under their purview; the “marble cake” has touched all the rest.

Given the modern economy, that’s understandable. True separation of powers would be unworkable. A gay businessman legally married in Maryland shouldn’t have to fear that his husband won’t be able to come to the hospital and make medical decisions if he has an accident in Virginia.

We still allocate power at the national level as if the 50 states were little countries with sovereign interests. But, in reality, that’s not the case anymore and is becoming less so with each passing decade.

_______________________________

*The notable exception was the handful of states added during the Civil War and Reconstruction by the Republican-dominated northern states. Ironically, they have mostly remained in the Republican column even though it long since flipped from being the liberal party to the conservative one.

FILED UNDER: *FEATURED, Politics 101, U.S. Constitution
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Scott says:

    I missed the conversation over the weekend since we went out of town. Heard the news of RBG while driving Friday and felt that sinking feeling that, I’m sure, everyone felt.

    but it seems clear to me that there’s basic agreement that America’s system of government is highly unrepresentative and that our institutions, compounded by naked partisanship, are failing us.

    I would put it another way. The carefully balanced powers that were constructed are seriously out of balance and have become inherently unstable. This country is run by a minority and that minority is using the tools available to maintain its authority. At some point, this instability will lead to conflict and even revolution, at which point the minority has to either 1) compromise or 2) use the power of the state to put down the conflict. It seems more and more evident that the second option is the preferred one for the current people in power.

    A stable system balances itself automatically. We don’t have that system anymore.

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  2. MarkedMan says:

    In reality, little would change—most states would allow abortions and a handful of states would continue to make it practically impossible to get one. Conservatives, rightly, feared that a liberal court would impose gay marriage, transgender rights, and the like. Conversely, they would prefer to impose their preferences on these issues on the nation as a whole if they could.

    The real friction with Federalism occurs when the US government steps in to prevent states from violating the rights of individuals. It’s not a general problem of governance. Sure, there are frictions when the Feds hold highway funds back if the states don’t follow their lead on motor vehicle open container laws, or mandate pollution controls on coal fired power plants, but they don’t cause any near the strife of, say, civil rights, gay marriage or abortion. And, truth be told, at some level the states recognize that the Feds are saving them from worse strife. Without the US keeping the lid on the kettle, the decision by midwestern states to erect giant smokestacks so the high winds carry their pollution into New England could have resulted in a real rift. The NE environmental community and sport fishermen focus on Federal legislation, not storming the Cleveland power plants.

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  3. JohnMcC says:

    Have heard my whole life about the excellent contribution that federalism makes to our governance. Usually from people who want to use the 10th amendment to shield discrimination and bad government.

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  4. gVOR08 says:

    I was born and raised in North Dakota. Been drifting east and south since, living in MI, IL, TX, IN, OH, and now FL. Never once felt like it made much difference or met anyone who made a thing of being a citizen of wherever. Except TX in superficial ways. Absolutely agree with your thesis, with one caveat.

    Your examples are abortion and gay rights. These are reflections of the faux populist face of the Republican Party, the visible tip of the iceberg. Once our new Justice has disposed of RvW (left on the books, as she’ll promise, but gutted) she’ll get on with her pro corporate, pro wealth, pro establishment agenda. The Kochs didn’t fund the Federalist Society to fight abortion.

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  5. charon says:

    We did this right through the last two, in 1959, when we added Republican Alaska and Democratic Hawaii.*

    Just to be picky, as I recall Alaska was reliably Democrat and Hawaii Republican back in the day.

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  6. Northerner says:

    Federalism can work — the split of powers between provinces and the Federal gov’t works reasonably well in Canada (a centralized gov’t would be a disaster — or actually, lead to both the west and Quebec separating), given the regional differences.

    Canada also has the number of voters per riding varying among the provinces. But the difference is the parliamentary system allows for third parties and minority gov’ts, and even most majority gov’ts are elected with only about 40% of the votes. But a two party system like the American seems to run into much bigger problems with federalism.

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  7. gVOR08 says:

    @gVOR08: I should add that once the Supremes approve of red state requirements that all abortion clinics have backup power from fusion generators and all providers be cross-trained in astrophysics, they will not let it lay. They will seek a national abortion ban. The issue is too valuable to GOPs for them to just let it go.

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  8. MarkedMan says:

    @gVOR08:

    Never once felt like it made much difference or met anyone who made a thing of being a citizen of wherever.

    I lived in two Deep South states for the better part of a decade and while what you say may be true in a general sense, resentment towards outsiders is a very real phenomenon in that region. Especially to what they consider Northerners. Remember that after Hurricane Sandy hit the Northeast so hard the Senators and Reps from the Deep South, even those whose states who are subject to hurricanes themselves, repeatedly blocked aid to the Northeast and made it very clear that they didn’t want “Southern” money going to help Yankees.

    Anecdotal, but revealing: Colbert recently had a focus group comprised of dyed in the wool Trumpers. It was done for comedic purposes, but the people were real Trumpers responding to what they thought were real questions posed by a pro-Trump political group. At one point the question was thrown out, “Which states should get the vaccine first?” When one of the people suggested it should go to the hardest hit, a good ol’ boy reacted in horror. “But that would mean New York and New Jersey, and we can’t give it to them!”

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  9. I think all of this requires even thinking through what federalism means and what the alternative, unitary government (all power centralized) would mean.

    I am not sure that the problem is entirely federalism, as it is how the states are represented in the broader scheme, specifically the Senate and the EC.

    It should be noted, there are a lot of federal systems (Australia, Canada, Germany, Spain, Austria, Belgium, India, Argentina, Brazil, and Mexico to name some). They do not all function the same and they do not, on balance create the kinds of representational distortions that we see in the US (especially not as it pertains to electing the head of government).

    So I honestly don’t think the problem is federalism itself.

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  10. mattbernius says:

    @Northerner:

    Federalism can work — the split of powers between provinces and the Federal gov’t works reasonably well in Canada (a centralized gov’t would be a disaster — or actually, lead to both the west and Quebec separating), given the regional differences.

    I agree that Canada’s version of Federalism works better. However, my understanding is the split of power between the Federal Government and the provinces is very different than the split between the US Federal Government and our States.

    So, for example, each Province doesn’t have its own unique criminal code or law enforcement forces. And things like that are a MAJOR differentiator. As I often note, its what makes reform so difficult in the US in that for so many services, you need to reform 51 systems (all the states, plus the Federal aspect) in order to deliver real results for folks.

    And to that point, that high degree of autonomy that States help exacerbates these issues we have. And to James and Michael’s points, I don’t see that changing at all. Which means that we are going to continue to have this minority-run problem for the foreseeable future.

    (I have to admit this chills me to the bone when you consider that the minority party will most likely continue down the Ethnonationalist path out of a sense of pure survival, and the primary system will continue to select more and more extreme candidates).

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  11. James Joyner says:

    @charon:

    as I recall Alaska was reliably Democrat and Hawaii Republican back in the day.

    The parties have mostly flipped nationally, though. George Wallace was a Democrat then.

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  12. gVOR08 says:

    @Steven L. Taylor:

    So I honestly don’t think the problem is federalism itself.

    Federalism was an issue leading up to the War of 1812, leading up to the Civil War, and now. But mostly it’s creaked and groaned, but generally worked in the U. S. If GOPs use Federalism as a tool to further their anti-majoritarianism, is that the fault of federalism or of the GOPs? Paraphrasing the NRA, Federalism doesn’t corrupt Republicans, Republicans corrupt Republicans. (And like gun laws, Federalism may not be the root problem, but changing Federalism may be part of the solution.)

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  13. gVOR08 says:

    @James Joyner:

    The parties have mostly flipped nationally, though.

    And the usual Red/Blue map of the US in the 50s looks almost like a photo negative of the current map.

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  14. Teve says:

    @MarkedMan:

    Anecdotal, but revealing: Colbert recently had a focus group comprised of dyed in the wool Trumpers. It was done for comedic purposes, but the people were real Trumpers responding to what they thought were real questions posed by a pro-Trump political group. At one point the question was thrown out, “Which states should get the vaccine first?” When one of the people suggested it should go to the hardest hit, a good ol’ boy reacted in horror. “But that would mean New York and New Jersey, and we can’t give it to them!”

    stupid people with shitty values.

    I need to find out if I can make a macro on my iPad for that.

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  15. MarkedMan says:

    @gVOR08: Just a caution when looking at old electoral maps: “Red = Republican, Blue = Democrat” wasn’t set in stone until the 2000 election. The history is explained here.

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  16. Kylopod says:

    @charon:

    Just to be picky, as I recall Alaska was reliably Democrat and Hawaii Republican back in the day.

    I don’t think this is quite true. What is true is that those states were more competitive initially than today. In their first election since statehood, 1960, Alaska went to Nixon and Hawaii to Kennedy–but both very narrowly. LBJ then won both by wide margins in his 1964 landslide, but in 1968 Alaska went again only narrowly to Nixon. In every election since then, it’s gone Republican by a wide margin. Hawaii, likewise, went Republican in the 49-state landslides of 1972 and 1984, but otherwise went Democrat, and by comfortable margins since 1988.

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  17. Kylopod says:

    @MarkedMan: David Brinkley in 1980 described the electoral map as being “as blue as a suburban swimming pool”–a metaphor that sounds rather odd today.

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  18. James Joyner says:

    @JohnMcC:

    Usually from people who want to use the 10th amendment to shield discrimination and bad government.

    For the most part, states are allowed to govern themselves in ways you may find “poor.” Alas, discrimination has mostly been outlawed by the 14th Amendment and resulting federal law and SCOTUS rulings and states continue to fight that.

    @gVOR08:

    I should add that once the Supremes approve of red state requirements that all abortion clinics have backup power from fusion generators and all providers be cross-trained in astrophysics, they will not let it lay. They will seek a national abortion ban.

    How? I suppose a Republican President, House, and Senate could pass such a law and a post-Roe SCOTUS would allow it. But that wuld seem to be a democratic outcome—although one I can scarcely imagine happening given the politics of it.
    @Steven L. Taylor:

    It should be noted, there are a lot of federal systems (Australia, Canada, Germany, Spain, Austria, Belgium, India, Argentina, Brazil, and Mexico to name some).

    That’s way more in your wheelhouse than mine. But I’m specifically talking about Federalism as we understand it here—with the states as semi-sovereign entities, not mere administrative units. I think most OTB readers see the states as the latter, which is never what they were intended to be but perhaps ought be.

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  19. MarkedMan says:

    @James Joyner:

    But I’m specifically talking about Federalism as we understand it here—with the states as semi-sovereign entities, not mere administrative units.

    Not germane here, but when I lived in China I got the impression that this was much more true about the Provinces then is commonly understood. It made me wonder if de facto federalism is more common than we realize.

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  20. Jay L Gischer says:

    I travel a lot these days between here in the SF Bay Area and Houston, TX. There is a notable difference in the streets/roads. Not only are the CA roads better maintained, they are built wider, with more lanes, with curbs, with more attention to signals and signs, and judging from the amount of unevenness present, better foundations.

    Interestingly, one does not see this difference on the Interstate system – the road surface and width are about the same (this is probably dictated by law).

    Of course, this costs money, so the CA streets are more expensive per foot than the TX one. The TX streets/roads work, though I gather there is considerable complaint about the state of their maintenance.

    This is a consequence of federalism that I’m prepared to live with. The people of TX don’t want to spend so much tax money on roads, so they do it on the cheap. That’s not my preference, but I’m not a yardstick for humanity.

    This is quite different than having one state recognize my marriage and another declare it null and void. However, interestingly enough, the “full faith and credit” clause handles this, even if it chafes at certain people. So well done there, framers.

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  21. Kathy says:

    To quote Adam Savage “There’s your problem!”

    Conservatives, rightly, feared that a liberal court would impose gay marriage, transgender rights, and the like. Conversely, they would prefer to impose their preferences on these issues on the nation as a whole if they could.

    If the Democrats want control of the Court to, among other things, expand equal rights and the protections of the law to all, they’re far more likely to win popular support than the GOP, if they truly want to use the Court to, among other things, restrict equal rights to a minority and remove or not extend the protections of the law to them.

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  22. Gustopher says:

    @James Joyner:

    How? I suppose a Republican President, House, and Senate could pass such a law and a post-Roe SCOTUS would allow it.

    A Supreme Court decision recognizing and affirming the rights of the unborn child, which would make abortion murder. They have been working to get their nose in the tent with adding charges for killing the fetus when killing a pregnant woman, for instance, and getting those court approved.

    When pro-lifers say that “abortion is murder” they aren’t using a metaphor. I’m baffled that anyone doesn’t recognize this. After Roe v. Wade falls, that’s the next big goal.

    As a service to the more obtuse readers, I will point out that “God hates fags” is not ironic, that “real Americans” is questioning the legitimacy of others, and “Soros funded protests” is just plain antisemetism.

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  23. Gustopher says:

    Has Federalism been a benefit or a harm in dealing with Covid?

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  24. Michael Reynolds says:

    I should probably comment since I’m referenced in the post. But had a bout of insomnia and I’ve been up since 1 AM. Given that it just took me 30 seconds, and an abortive Google search to come up with the word ‘insomnia,’ I think I’ll just Zzzzzzzzzzzz.

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  25. gVOR08 says:

    @Gustopher: Andrew Bacevich had a piece at The American Conservative on that very subject, arguing that Federalism allowed states to respond well despite Federal failure. I commented back that I live in FL.

    Given the Federal failure, Bacevich is basically right, on balance it’s raised the average response above the Federal response. But dyam I hate to accept Federal failure as a given.

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  26. Mikey says:

    @Gustopher:

    Has Federalism been a benefit or a harm in dealing with Covid?

    Yes.

    As @gVOR08 said, it did allow the states to mount their own responses, which probably saved some lives in the quicker- and smarter-responding states, although perhaps not enough to offset red-state idiocy.

    On the other hand, it pitted the states against each other and caused a devolution into 50 essentially separate and mostly uncoordinated responses. Although really that was more a failure of federalism–after all, a primary feature of a federal system is that the federal government is supposed to mount a national response to national threats. America didn’t go into World War II pitting states against each other in bidding wars for rifles, tanks, and bombers. We didn’t send the Ohio Army to Normandy, or bomb Tokyo with aircraft of the California Air Force.

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  27. James Joyner says:

    @Gustopher:

    A Supreme Court decision recognizing and affirming the rights of the unborn child, which would make abortion murder.

    This strikes me as fanciful in a host of ways. Not only is it incredibly unlikely that a Supreme Court—even one of, say, 9 Kavanaugh’s—would issue such a ruling it wouldn’t have the consequence you cite. The law has long (always?) recognized a basic humanity in the unborn child, such that there are penalties for outside parties who kill it. That is, if I assault a pregnant woman and kill the child, I’m guilty of a rather serious offense. But a SCOTUS decision ruling that the unborn child has rights wouldn’t translate into some universal new homicide law. That’s just not how it works.

    @Gustopher:

    Has Federalism been a benefit or a harm in dealing with Covid?

    Both, I’d say, depending on where you live. Would you really want Trump et al in charge of the whole thing?

    @Michael Reynolds:

    Given that it just took me 30 seconds, and an abortive Google search to come up with the word ‘insomnia,’ I think I’ll just Zzzzzzzzzzzz.

    Understood!

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  28. Mu Yixiao says:

    @MarkedMan:

    Not germane here, but when I lived in China I got the impression that this was much more true about the Provinces then is commonly understood. It made me wonder if de facto federalism is more common than we realize.

    This is very much the case in China. Dan Harris at China Law Blog talks about this quite frequently. And it makes a lot of sense (as it does in the US). Shanghai and Guangdong have very different needs than Anhui and Hubei.

    WI, CO, and SC are all approximately the same size by population. But they have very different needs based on geography alone.

    One is landlocked, one is coastal, one shares a water border with another country. The laws regarding the use of water (both for drinking/irrigation and as a transportation resource) are very different for each of them.

    Average climate is very different for each quite different meaning that regulations governing the building of roads, commercial structures, and homes need to reflect that.

    WI is home to ten of the 574 Native American tribes in the US*. CO and SC each have one.

    The largest industries in each state are probably not what you think**.
    CO = Oil & gas extraction
    SC = Ambulatory health care services
    WI = Insurance

    Federalism allows each state to adapt to the regional situation and compete for industry and population. This is “voting with your feet”. Population shifts are a good gauge of what the population wants–especially when movement can be associated with a change in state laws.

    Among the top ten states losing population, 6 of them are solidly Democratic. Three of them (NY, NJ, IL) have large urban centers. And this data is from before COVID-19 and the shift to work-from-home. Over the next few years, I think we’re going to see a lot of the urban hubs lose population as people realize that they can buy more land (or buy rather than rent), have fewer restrictions, and have much more purchasing power in suburban and rural areas.

    Wisconsin has been seeing the results of Illinois’ laws for a while. A lot of people are moving north of the border–even if some of them still work south of it.

    The US needs a level of government–and a separation of government–between the federal and local levels.

    There are a lot of things that need to be changed in the way the US handles government, but eliminating federalism isn’t one of them. I’ll argue that we need more of it. Partner that with more equal representation, and we’ll get a much better picture of what people want than a presidential election ever could.


    * Alaska has 229 (~40%), and 15 states have none.
    ** Yahoo Finance 2017

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  29. gVOR08 says:

    @James Joyner: In reply to me you write,

    How? I suppose a Republican President, House, and Senate could pass such a law and a post-Roe SCOTUS would allow it. But that wuld seem to be a democratic outcome—although one I can scarcely imagine happening given the politics of it.

    First, this whole long series of posts has been on the un-democratic effects of Republican politics. Effectively killing RvW would be also un-Democratic, but we think Barrett will do it.

    But the feasibility of doing it is not relevant. I didn’t predict GOPs would ban abortion nationwide, only that they’d run on doing so. They’ve campaigned on repealing RvW for forty plus years without being able, so far, to do so. As a victory it would be useless to Republicans. They desperately need it as an issue. If they succeed in effectively killing RvW they will still campaign on abortion. They’ll find a way. Evangelical voters have ignored stare decisis for decades. Do you think a few cavils about practicality are going to interfere with the base’s bloody minded desire to own the libs by forcing an abortion ban on CA and NY?

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  30. Mu Yixiao says:

    @Gustopher:

    Has Federalism been a benefit or a harm in dealing with Covid?

    Both.

    Some states were able to react faster than the federal government because they had local control. Some states lagged behind (or opposed sensible actions) because they had local control.

    Some states wanted to react faster–ordering equipment from vendors–but the federal government took control and prevented that. Some states may not have reacted at all without being told to.

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  31. Mu Yixiao says:

    Just a side note:

    The US is 2.2 times the size of the EU, but only has 3/4 the population.

    The problems they have with a “uniform government” are an interesting mirror to the US.

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  32. Gustopher says:

    @James Joyner:

    Both, I’d say, depending on where you live. Would you really want Trump et al in charge of the whole thing?

    Federalism allowed Trump to pass the buck. If it was manifestly clear to everyone that states were not equipped to handle covid, legally and practically, would Trump have been able to blow it off? Honestly, I have no idea.

    Remember, the administration didn’t care because it mostly affected blue states, and even when that isn’t true anymore, they keep telling the lie. “Our numbers would look great without the blue states…” And Federalism is part of the underpinning of that lie.

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  33. mister bluster says:

    testA

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  34. Mister Bluster says:

    If Wisconsin is the state that shares a water border with another country I have to wonder if you are talking about Minnesotastan or Michigania.

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  35. Michael Cain says:

    @Mu Yixiao: Oil and gas for Colorado struck me as suspect. Statista’s figures puts oil and gas in sixth place, with financial services more than three times as large. Some of that may be how things are counted in different surveys. IIRC, the largest aspect of the oil and gas industry in the state is financial services, due to the large number of companies with headquarters (or at least major offices) in and around Denver.

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  36. Gustopher says:

    @James Joyner:

    That is, if I assault a pregnant woman and kill the child, I’m guilty of a rather serious offense. But a SCOTUS decision ruling that the unborn child has rights wouldn’t translate into some universal new homicide law. That’s just not how it works.

    If the fetus is a person under the law, you would have gone from assault to murder. That’s the goal.

    But let’s assume you’re right and it won’t work that way, for the sake of argument. The pro-lifers will still be pushing for that, and that will become the battleground.

    Women who travel to another state to get an abortion will face charges in their home state, as legislatures try to reach across state lines. And we will be fighting that. Maybe we win and these laws are struck down. For the sake of argument assume we do.

    The next target becomes the rulings that strike those laws down. And the liberal judges that are legislating from the bench who struck those laws down. Gorsuch, perhaps. They will need to appoint originalists in the mold of Scalia (even if Scalia would never have held the view, they will lie) who will recognize the state interest in regulating the behavior in the state (planning to go to another state happens when you are in the state).

    But you’re wrong about what a declaration of fetal personhood at the SCOTUS level would do.

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  37. James Joyner says:

    @gVOR08:

    Effectively killing RvW would be also un-Democratic, but we think Barrett will do it.

    While I think Roe was wrongly decided for a variety of reasons, it–or, rather, Roe as modified by Casey—is settled precedent at this point and I think overturning it outright would be both unwise and inconsistent with our Common Law. But it’s not undemocratic. If anything, the Court making up a constituitonal right and using it to overturn the expressed will of the people in multiple states is undemocratic.

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  38. @James Joyner:

    That’s way more in your wheelhouse than mine. But I’m specifically talking about Federalism as we understand it here—with the states as semi-sovereign entities, not mere administrative units. I think most OTB readers see the states as the latter, which is never what they were intended to be but perhaps ought be.

    Federalism is a specific relationship between territories and the central government, and they can be arranged in various ways. There are examples of this relationship that are probably more distinct in terms of local autonomy in other countries than is the case in the US. Some would argue that Swiss Cantons are more autonomous than US states.

    Fundamantally a continental country is going to have to some level local autonomy to govern day to day operations. Centralizing in all in DC won’t work.

    The issue is not states nor federalism, per se. The issue is the political weight given to states in the federal chamber (the Senate) and the fact that that weight is then linked to selecting the head of government.

    Quite frankly, most of this boils down to the Great Compromise, which may have been great at the time, as it helped get the constitution approved, but it locked us into a representational scheme that is really harming us, to include the role the Senate plays in populating the judiciary.

    All of this is to say you can have federalism without the states being utterls c0-equal in the Senate and using that to influence presidential selection.

    Of course, changing these things is a different matter.

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  39. Northerner says:

    @mattbernius:

    I agree that our federalism in Canada is different than in America (and people’s general attitude to gov’t as well). Interestingly enough, though you’re right that there is just one criminal law in Canada (its federal), provinces are free to have their own police forces, and a few provinces have gone that route instead of using the RCMP (Ontario, Quebec, and Newfoundland), as well as cities always having their own police departments instead of using the RCMP (though in theory they could use the RCMP).

    Among everything else, I wonder if part of the American problem is just how many states there are. Canada has 10 provinces and 3 territories, and the provinces have rights over things like health care, resources, education, civil law). That’s a lot more manageable than your fifty states.

    Canadian identity also tends to be regional — British Columbia, the prairie provinces, Ontario, Quebec, the Atlantic provinces, NFLD (or so I’m told by Newfies, who say they don’t identify with the rest of the Atlantic provinces), and the north (or far north). That is even more manageable. But I suspect the biggest difference is the parliamentary system — it allows say Quebec to elect Bloc Quebecois MP’s. Having viable 3rd (and 4th and even 5th) parties makes a difference. We got our public health system (which 95% of Canadians will tell you they much prefer to a private system like America’s) because of a 3rd party, the NDP, who implemented it in one of the provinces (allowed because health care is a provincial responsibility). Federalism can be a great laboratory to see what works in gov’t.

    But mainly I was just arguing that federalism isn’t inherently bad.

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  40. Just nutha ignint cracker says:

    @James Joyner:

    How? I suppose a Republican President, House, and Senate could pass such a law and a post-Roe SCOTUS would allow it.

    Why would a Republican President, House, and Senate need to pass STATE regulations in a Republican controlled state. Wouldn’t the Republican STATE governors and legislatures be adequately empowered to require write regulations for their own states? Or are you assuming that if Roe v Wade were repealed, only the Federal government would have authority to regulate abortions. And if the second, how so?

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  41. Paine says:

    Federalism allows each state to adapt to the regional situation and compete for industry and population. This is “voting with your feet”. Population shifts are a good gauge of what the population wants–especially when movement can be associated with a change in state laws.

    And this sort of competition between states could be leveraged with states being awarded with more voting power by being more attractive than their neighbors. Unfortunately, this leverage is dialed down by how the Senate works.

    But more importantly, that graphic is making me hungry.

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  42. Michael Reynolds says:

    One quick point. “Federalism allows…” is doing a lot of work here. Federalism allowed Jim Crow. It allowed lynching. It allowed schools to teach racist lies, but also misogynist lies. Federalism allowed states to imprison people for absurdly long times on the basis of local panic attacks. It allowed state governments to carry out medical experimentation to rival Josef Mengele. I don’t much care about what a system ‘allows’ when I have so much evidence of what that system actually does.

    The entire theory might might sense if regions were an actual thing, if states made any sort of rational sense. But that’s not the case. California has almost twice the agricultural production of Iowa. So, which state is farm country? Whose voters should be influencing federal agricultural policy, the vastly underrepresented voters of California or the vastly overrepresented voters of Iowa?

    Make a list of states you think might lead the country in a helpful direction by their example. Now make a list of states likely to act as impediments to progress. Compare lists. Even at the theoretical level it is patently absurd. What is the greater likelihood, that one national government would do evil to its people, or that at least one among 50 individual states would do so? One chance, 50 chances. Our fear of a larger evil allows for the growth of many smaller evils.

    We’ve had two centuries to test the theory of federalism and it is conclusively, demonstrably, bullshit.

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  43. Northerner says:

    @Michael Reynolds:

    That’s another interesting case for American exceptionalism. In most of the developed world, federalism (ie giving a wide range of rights to provinces or states) has worked out very well, and a lot of very positive innovations (including public healthcare and allowing provinces like Quebec to have different civil laws to reflect their different culture) have come from it. America seems to be the exception, in that federalism seems to have been a laboratory for negative rather than positive experimentation. Any thoughts on why that might be?

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  44. Michael Reynolds says:

    @Northerner:
    Easy answer: race. Nothing in the US is ever not about race.

    In practice federalism has been a means of allowing Alabamans to keep their boots on the necks of Blacks, Texans to do the same with Mexicans, New Yorkers ditto with the Irish, and Californians with Asians.

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  45. Andre Kenji de Sousa says:

    @gVOR08: The Federations that did a good job on controlling the covid had strong responses at the federal level. By the way, the four countries with the highest number of deaths(Brazil, Mexico, United States and India) are federations.

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  46. Andre Kenji de Sousa says:

    We still allocate power at the national level as if the 50 states were little countries with sovereign interests.

    But not all federations treat their states or provinces like little countries. I think that the best federal systems have strong laws at the federal level, without having traffic laws or penal codes delegated to states.

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  47. Grewgills says:

    @Michael Reynolds:
    I largely agree with your broader point, but

    California has almost twice the agricultural production of Iowa. So, which state is farm country? Whose voters should be influencing federal agricultural policy, the vastly underrepresented voters of California or the vastly overrepresented voters of Iowa?

    The voters in the ag areas of California vote more like Iowa than the rest of California and constantly complain that they aren’t adequately represented.

    It isn’t federalism per se that is the problem. It is our particular form of federalism. Taking your statements and replacing federalism with US federalism would make them much more accurate. Perhaps that was your intent and you assumed that given the context we’d know that was what you meant.

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  48. Northerner says:

    @Michael Reynolds:

    I can believe race is a big part of it. Class (at least economic) too I suspect — America seems to be harder on poor people (even poor whites) than any other developed country. I remember reading about troops and private police shooting striking workers. Or letting them die if they can’t afford health insurance.

    Even with police shootings, I wonder what percent of the white people killed every year (over 500 I think?) aren’t poor? I’d guess almost none.

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