We Need to Talk About Federalism

It’s time we fess up about our opportunistic arguments

One of the hardest aspects of Mr. Trump’s presidency so far, from the perspective of the commentary class and those of us who rely on their wisdom to support our cocktail party interjections, has been the sorting of news from the truly groundbreaking and abhorrent, to the simply abhorrent, to the actually mundane. So much of Trump’s saga has seemed to upend norms of both politics and polite society that it can be difficult to delineate a line between that which should outrage and that which is to be expected.

Preet Bharara, who was recently fired after refusing to resign as US Attorney for the Southern District of New York, is a case in point. As Trump apologists have claimed, it is not in fact uncommon for new administrations to ask for the resignations from holdover US Attorneys. In the current climate however, and particularly after the dramatic firing of Sally Yates in January, a theoretically routine news items spiraled into something more, with attendant allegations of fascism and concerns over ethics (and of course Russia). Another more recent example is the debate about breaking up the “Nutty 9th” circuit. Republicans have long wanted to break up the 9th Circuit because it is very large and (arguably) very liberal, but introducing legislation to that effect so soon after a negative decision for Trump on the Muslim ban reeks of political interference with the judiciary.

Something that is decidedly in the “to be expected” camp, however, is the quadrennial (or octennial) Shaming of the Federalists. Just as we watch as new agency heads are installed, websites are changed, and congressional committees reshuffled, so too the nation perennially finds itself pointing fingers at those who profess to value states’ rights only to abandon their principles once their guy is in power, and vice versa. The argument is usually the same, and often spoken (or tweeted) with a healthy dose of condescension: how cute that you have discovered states’ rights now that the opposing party is in power. Or: how fitting that you have forgotten your states’ rights principles now that you support federal policy.

In the scope of a single press conference, Sean Spicer stated that the administration was going to get tough on medical marijuana but return decisions about transgender bathroom policy to the states. The hypocrisy was clear and quickly jumped upon: “Trump Supports States’ Right to Discriminate Against Trans Kids but Not to Legalize Pot”; “States’ rights for bathrooms, but not for marijuana.” And on, and on, and on. The shoe has also been on the other foot of late. Reason, the Libertarian Magazine, pondered: “Will Liberals Learn to Love the 10th Amendment?” The more right wing NewsMax ran a story asking, with a decidedly raised eyebrow: “Liberals Embrace States Rights?” This is not new. While rancor over federalism may be somewhat more pronounced as “states’ rights” became more of a pillar of the Republican party, we have always argued about federalism, and often opportunistically.

“Federalism” is for many Americans what sex is for teenagers: aside from the fact that it is supposedly great, they don’t know much about it.

It “conjures up images of Fourth of July parades down Main Street, drugstore soda fountains, and family farms with tire swings in the front yard.” But in reality, it is a much drier concept that actually cuts against such national identities. Federalism refers to any system of government where “a territory is controlled by two levels of government,” usually a national government that has some jurisdiction in every state or territory, and subordinate state or territorial governments. This is likely not a proposition that fits neatly onto a poster, to be waved by a frothy mouthed supporter at a Trump rally. But you do increasingly hear of Federalism’s cooler and more easily understood cousin, “states’ rights”. Whether backed up by the apparently redundant 10th amendment or misty-eyed defenses of “federalism”, the contention is the same: states are independent sovereigns that should be more often then not left alone by the national government. Unless those states want to smoke weed. Or be nice to the gays.

What to make of our ritualistic Shaming of the Federalists? One answer, borrowed in part from scholars Ed Rubin and Malcom Feeley’s 2011 book Federalism: Political Identity and Tragic Compromise, is that as a nation we have never been very principled federalists. As the authors wrote elsewhere, “When federalism is raised as an argument against some national policy, we generally reject it by whatever means are necessary, including, in one case, killing its proponents.” (That would be the Civil War).

Federalism in their view is a “neurosis” that is really a byproduct of the circumstances of our birth. Our country (or at least its eastern seaboard) was colonized piecemeal, and at the time of our founding constituted thirteen more or less independent countries in a loose federation. It would be nearly a century before Americans began regularly referring to the United States as a singular noun (a linguistic shift that may have been accelerated by the above mentioned Civil War), but we were pretty quick to drop the pretense of actually being thirteen more or less independent countries in a loose federation. The Articles of Confederation (get it?) were ditched in favor of a Constitution with a stronger national government. One of George Washington’s first major actions was to violently suppress people in Pennsylvania who didn’t want to pay taxes to support a national army. And the nascent Supreme Court pretty quickly got to work upholding national regulation promoting a national market (and thus overriding the divergent goals of various states).

More compelling than these historical curiosities is present day experience. Highly unscientific polling of friends and family members suggests that conceptions of “federalism” are highly opportunistic:

States should be allowed to make their own drug policy!
But we can’t let students in Mississippi learn creationism!
The Federal Government has no business telling us we can’t have prayer in schools!
But we can’t let people in New York ban prayer in schools!

This supports my general hypothesis that Americans are really part of one political party: the party of “If you like what the government is doing you support the government, if you don’t, you don’t.”

It also supports Rubin and Feeley’s hypothesis that when push comes to shove we aren’t really Federalists. One can make (frankly weak) Constitutional arguments that support these hypocrisies, as well as the Conservative (or at least Spicerean) hypocrisy on medical marijuana and transgender policy. For instance, one could argue that Congress passed a law outlawing marijuana, whereas the Department of Education’s bathroom policy is an agency’s interpretation. Therefore, enforcing one and not the other is just following the Constitutional design: Congress can make national policy, unelected bureaucrats cannot. But even this is an example of masking the real argument by placing it under the guise of federalism. The Department of Education (under Obama) would contend that their bathroom guidance was a faithful interpretation of Congress’s law (Title IX of the Civil Rights Act). So the real argument is one of statutory interpretation, not who should be allowed to force the states to comply with certain laws.

The important point, however, and the reason we need to talk about federalism, is cultural and not Constitutional. That is, what we need to understand about the quadrennial Shaming of the Federalists is that we don’t really conceive of ourselves as 50 independent countries (and whatever the Northern Mariana Islands are), but instead as the United States.

Put differently, arguments about “federalism” and “states’ rights” are more often arguments about the substance of the underlying policy, bootstrapped to principled discussions of Constitutional framework.

Take drugs, for example (or for other reasons). Unless you are a hardcore anti-prohibitionist, chances are you are more willing to support “states’ rights” when it comes to legalization of, say, marijuana than other drugs. What if Mississippi wanted to legalize crystal meth? For many, a seemingly principled “leave drug policy to the states” argument is actually a drug policy argument itself. States’ rights are fine for marijuana because marijuana is fine. Anything that falls in the “not fine” column tends to be not fine anywhere. Gay marriage, for instance, was never about “states’ rights,” but it appeared that way when a majority of the population opposed gay marriage and it was only legal in certain states. Nowadays, you would be hard pressed to find a liberal proponent of marriage equality who is fine with a state like Alabama (where 68% of the population opposes marriage equality) stripping away those hard earned rights.

Why does this matter? Why do we need to talk about federalism? For one, The Shaming of the Federalists is a bit boring, as most predictable arguments are, and an honest discussion about federalism might allow us to do away with this unnecessary ritual. For another, it is generally good practice to talk about the thing that we are talking about. We should drop the pretense of principled federalism and focus on discussion of the policy and why we should or should not proceed with national or subnational implementation or enforcement. There are still ample reasons for decentralized management of certain problems. As Rubin and Feeley note, they are not in favor of getting rid of states. On the other hand, there are ample reasons for national solutions to certain problems (ardent states’ rights supporters seem fine with a very powerful national military, for instance, as evidenced by Trump’s budget proposal — a particularly ironic hypocrisy given that fear of a national military was one of the great fears of the original Confederation). To borrow a maligned phrase from the kiddos in college, we should begin this conversation by interrogating our own positions whenever we proclaim to defend something in the name of “federalism.” Do we really want “states’ rights,” or does that just happen to advance our preferences in this particular instance? It is something worth having a more honest conversation with ourselves and others about. After all, the first step to recovery is admitting that you have a problem.

Note: Before I am burned in effigy at Federalist Society meetings, it is worth noting that this is a descriptive argument, not a normative one. That is, I make no claim as to whether it would be better or worse if Americans really were true federalists, willing to let Mississippians sink or swim (or get really high). I only suggest that, more often than not, we make such arguments opportunistically, though there are certainly principled federalists out there.