Taking Federalism Seriously: The 1776 Series

This essay is part of RealClearPublicAffairs’s 1776 Series, which explains the major themes that define the American mind.

Federalism is like a diet. Both the Left and Right try to stick to it, but each abandons it when its craving for the policy equivalent of fries and a shake grows too strong. The Left, which normally looks to the national government for policy solutions, cheerfully applauds state efforts to deal with the least local of all environmental problems: climate change. Last year, President Trump threatened to use the military to quell looting and overrule the decisions of state governors regarding COVID regulations. But if one really wants to fit into that prom dress or make weight for the wrestling match, one needs to stick to the diet, even when it means leaving tasty policies you crave on the table.

A principled defense of American federalism – even if it deprives one of a delicious policy outcome – is necessary now more than ever. Though difficult, the federalism regimen is worth the sacrifice.

A principled defense of American federalism – even if it deprives one of a delicious policy outcome – is necessary now more than ever.

The Framers left us a Constitution that gives powers and authority both to the national government and to the states. But the Constitution does not systematically expound on the nature and extent of those powers, nor does it offer a clear-cut rationale for what the states are supposed to do beyond checking national power – a theoretical deficiency rooted in political reality. (In 1787, the states already existed and were the only real governing bodies in the U.S. – often spelled with a small u and a capital S and treated as a plural noun: “The united States are.”)

It took the fresh eyes of a foreigner, Alexis de Tocqueville, to recognize that what had been undertaken for pragmatic reasons was not only theoretically defensible but was also the best means of preserving liberty and enabling a large republic to endure. Tocqueville recognized that American federalism offered a means of resolving what had been an unsolvable dilemma. The dual character of American federalism, combining a powerful central government with a set of smaller republics, enabled both necessary aspects of democratic-republican political life – civic engagement and rule in the general interest – to thrive.

Tocqueville recognized that the United States enjoyed a strong central government because of, not in spite of, its limited powers. Liberated from myriad onerous and contentious chores, it could concentrate on those critical tasks for which it was uniquely suited. Though not an admirer of Andrew Jackson, Tocqueville nonetheless pointed to that president’s suppression of South Carolina’s nullification threat as a good example of how a government of limited powers could forcefully act to preserve itself.

The dual character of American federalism, combining a powerful central government with a set of smaller republics, enabled both necessary aspects of democratic-republican political life – civic engagement and rule in the general interest – to thrive.

For Tocqueville, federalism separated governance into “government” and “administration.” The former was the responsibility of the central government while the latter, which denoted what aspects of politics and government should be decentralized, was left to “provincial institutions” – states and localities. By “administration,” Tocqueville did not mean that states and the localities are supposed to implement central government policy. Rather, he viewed public policy in a federal republic as having two distinct ends. “Government” encompassed policies and laws involving matters of general interest to the Union as a whole. “Administration” referred to those policies and laws of serious concern only to the individual components of the union. Administration is therefore not a synonym for management but rather for provincial politics. Tocqueville granted that centralized administration could be more efficient and produce greater peace of mind than its decentralized counterpart, but those virtues were insignificant when compared to the passivity and slavishness it induces.

The remarkable energy that decentralized administration fuels is what enables citizens to secure their liberty and successfully govern themselves, a phenomenon especially characteristic of New England but also present to an impressive degree throughout the North and West. By providing forums and focal points for self-government, these provincial institutions were critical because they taught men how to be free. And they still do. In contemporary America, citizens continue to serve on juries and attend town meetings as well as impromptu neighborhood gatherings geared toward solving local problems. Local institutions such as schools, parks, libraries, streets, and sidewalks remain valued objects of civic attention.

A government that could credibly claim to be the creature of the people has a far easier time placing demands on the populace than one that could not. Since the American Constitution was based on “We the People,” the central government it created would inevitably seek to expand its reach. The great barriers to such aggrandizement were the states, since they alone enjoyed constitutional standing.

The states’ power to resist central authority was a vital defense of civic republican principles, one that requires continual shoring up in order to prevent central government incursion.

The virtues of the states are twofold: they thwart the national government’s efforts to centralize administration, and they are more responsive to local demands. The states’ power to resist central authority was a vital defense of civic republican principles, one that requires continual shoring up in order to prevent central government incursion. This is not to suggest that state governments always have the best interest of the localities at heart. Instead, it recognizes that the population of any local government constitutes a far larger fraction of the population of its state than it does of the nation and is therefore likely to prove more capable of influencing state than national policy.

To a considerable extent, the U.S. remains a nation of small towns and villages, in which ordinary people are fully capable of exercising meaningful and active citizenship responsibilities.

Contemporary federalism provides other virtues in addition to those that Tocqueville described. America is currently beset by passionate political conflicts over matters including policing, gender identity, abortion, gun control, and school curriculum content. Rarely do these issues prove as divisive within any particular state as they do at the national level; states thus have the latitude to treat them differently, reducing the overall level of political discord.                

American federalism also adds policy diversity as a key element contributing to significant cultural and geographic differences between regions, allowing states to fashion different policies regarding such vital matters as taxation, spending choices, land use, and other forms of social and economic regulation. This was why Supreme Court Associate Justice Louis Brandeis referred to the states as laboratories of democracy and experimentation in the New State Ice Co. case.

Compare the differences between neighboring states New Hampshire and Vermont. New Hampshire has no state tax on earned income, no sales tax, and little state land-use regulation, while Vermont has a 6 percent sales tax and a graduated income tax that ranges from 6.6 percent to 8.75 percent for single filers making more than $200,200 per year. Thus, if one wants to live in a low-tax environment free of regulatory impositions, New Hampshire is a good choice. If one wants strict environmental protection and a richer array of public services, one has only to cross the Connecticut River. Any individual can create his own priority list of state policy attributes and choose to live in the state that most clearly offers them.

As Tocqueville observed, the key to the success of federalism was the discipline imposed on the federal government by the enumeration of its powers in the Constitution.

As Tocqueville observed, the key to the success of federalism was the discipline imposed on the federal government by the enumeration of its powers in the Constitution. In modern times, that discipline has been undermined in several ways that have combined to cause greater central government impositions upon the states’ policy discretion.

Congress has relied most heavily on the Commerce Clause as the constitutional justification for expanding the federal government’s reach into realms as diverse as pollution control, agricultural subsidies, and crime. In fact, from 1936 until the mid-1990s, the Supreme Court refused to overturn any congressional statute that relied on the Commerce Clause. In Garcia v. San Antonio Metropolitan Transit Authority, it even permitted the federal government to regulate the working conditions of state workers.

By establishing new constitutional rights – most prominently in the Equal Protection Clause of the Fourteenth Amendment and the Eighth Amendment’s barring of “cruel and unusual punishment” – the Supreme Court has precluded states from determining differing courses of action for dealing with many areas of policy. For instance, the intervention of the Supreme Court and federal district courts in the day-to-day administration of state correctional and mental-health facilities has undoubtedly improved the lives of many inmates and patients. But the courts didn’t reflect on the opportunity cost of the resulting spending increases. When courts require extra spending on certain policy objectives, they force states either to raise taxes or reduce spending on other worthy objectives.

The Supreme Court’s establishment of new rights has also served to diminish states’ ability to determine how best to design their governing institutions. In Reynolds v. Sims, the Court required the states to apportion their upper houses on the basis of population, precluding them from adopting diverse modes of political representation in order to establish a right of equal voting power not mentioned in the Constitution and contradicted by the design of the United States Senate.

Since the New Deal era, the pendulum has swung far in the direction of centralized administration, but in recent years some trends have begun pushing the other way.

Decentralized administration is also undermined by federal subsidies that distort state budget allocations. Take Medicaid, for example, a federal-state partnership that provides health care for the poor. The federal government provides matching funds to states to help them fund their Medicaid programs; in practice, Washington provides at least a dollar for every two dollars that a state spends. This federal largesse is largely responsible for Medicaid becoming the largest item in state budgets, accounting for 29 percent of all state spending, far surpassing what is spent on transportation, education, corrections, or higher education.

The ability of states to manage those funds effectively and ensure that they actually serve their intended purposes has been undermined by a host of federally imposed restrictions including, but not limited to, court-enforced deadlines, congressionally imposed timetables, excessively stringent federal bureaucratic oversight, contradictory requirements, and unfunded mandates.  

Since the New Deal era, the pendulum has swung far in the direction of centralized administration, but in recent years some trends have begun pushing the other way.           

For example, a 1996 Supreme Court decision overturned the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a gun in or near a school. The Court stated that Congress had exceeded the power it was granted by the Commerce Clause. The majority opinion maintained that the Framers must have intended to restrict Congress from doing something when they wrote the Commerce Clause. Since almost any conceivable action or event will have some impact on interstate commerce, the Court insisted that the relationship had to be substantial for a law to be upheld. 

More recently, in NFIB v. Sebelius, the Court declared that the Commerce Clause could not be used to justify The Patient Protection and Affordable Care Act’s requirement that Americans purchase health-care insurance or pay a fine. The Court said that though the Commerce Clause did not justify the fine, the fine was really a tax and therefore justifiable under the federal government’s constitutional power to levy taxes. Thus, the Court signaled a renewed intention to compress the Commerce Clause’s applicability. 

The Supreme Court also sought to limit the federal government’s ability to use subsidies to the states as a weapon to induce state compliance with national policy by invalidating the law’s provision that threatened to cut Medicaid payments to states that did not embrace the Act’s Medicaid expansion. Various states led by Florida sued, claiming this policy was unconstitutional because the new Medicaid program was no mere expansion but a radically new program altogether. Therefore, the federal government could not deprive states of funds for one program because they refused to cooperate with another. In his majority opinion, Chief Justice Roberts wrote:

the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions . . . Congress may use its spending power to create incentives for States to act in accordance with federal policies. But when pressure turns into compulsion the legislation runs contrary to our system of federalism. In this case, the financial inducement Congress has chosen is much more than “relatively mild encouragement” – it is a gun to the head.

This ruling indicated that the Court might make it more difficult for Congress to impose its will on the states in the future, and it calls into question current coercive uses of the national government’s spending power.

As Tocqueville recognized, voluntary relinquishment of power goes against the grain of a centralized government that speaks in the name of the people.

Notably absent from this collection of straws in the wind is any reference to Congress or the president. Though many presidents, including John F. Kennedy, Richard Nixon, and Ronald Reagan paid lip service to decentralizing important policy responsibilities to the states, little came of those initiatives. Indeed, the Welfare Reform Act of 1996, the only major federal law that has actually achieved administrative decentralization, was initiated by Congress and reluctantly signed by President Bill Clinton. This aberration aside, Congress has not acted in any meaningful way to empower the states.

As Tocqueville recognized, voluntary relinquishment of power goes against the grain of a centralized government that speaks in the name of the people. Hence the resistance of Congress and the president to take up the cause of decentralized administration. But in politics, crisis can provide opportunity. The looming shortfalls in Medicare and Social Security have not yet prompted recognition of a crisis; eventually, though, there will not be enough federal revenue to continue the current level of state subsidies and the priority distortions, rigid timetables, and overly detailed guidelines that accompany such largesse. The coming entitlement crisis may yet make federalism weight watchers of us all.

Marc Landy is professor of political science at Boston College. He is the co-author (with Sidney Milkis) of  Presidential Greatness. A new edition of his textbook, American Government: Enduring Principles, Critical Choices, has recently been published by Cambridge University Press.