A Debate on States’ Rights and the Relevance of American Federalism
Why We Still Need Federalism
By Abigail R Hall – Associate Professor of Economics, Rubel School of Business, Bellarmine University
and Alexander William Salter – Associate Professor of Economics, Rawls College of Business at Texas Tech University
The Breakdown of Federalism
Over the last 100 years, we have seen a radical shift in the size and composition of our government. The state-centric, localized governance envisioned by the Founders has given way to a nationally dominant behemoth. As a result, the government is overly centralized and grossly inefficient.
But it was not always this way.
Our Constitution takes the existence of states as given. They required no legitimation. Instead, the Constitution authorizes the national government to act within a specific and limited domain. It is a beautiful example of political craftsmanship: with state governments and the national government consigned to their proper spheres, each can curb the potential excesses of the other to the benefit of the citizenry.
The 10th Amendment to the U.S. Constitution makes it abundantly clear that government activity should be as local as possible. As the Framers designed our government, powers not expressly granted to the federal government were assumed to rest with the states. Over time, however, we’ve seen disproportionate growth in the national government’s prerogatives. For example, from 1900 to 2012, national government expenditures as a share of economic output grew from 2.7% to 24.0%. Over a similar time horizon, state and local government expenditures rose from 9.1% to 14.8%. This clearly shows the national government eclipsing state and local governments, a clear departure from our Founding principles.
Explanations for this lopsided development vary. Some argue that individuals within government, such as politicians and bureaucrats, drive government growth. Others contend that government growth is the result of citizen demand. Still, others suggest that crises have played a pivotal role in government “ratchets” or that new technology causes expansion and centralization. In reality, it’s likely a combination of these things. Whatever the causes, the results are clear. As governance has moved away from more local entities — the federalist approach — to a government more focused at the national level, our government has become unwieldy and ineffective.
The Dangers of States’ Loss of Control
Inefficiency isn’t the only downside of overly centralized government. There is also the degeneration of public discourse into vitriol and rancor. Simply put, national politics has gotten too important. If a political faction loses state or local elections, there are ways to soften the blow. But losing in Washington can be devastating. Since states have become so reliant on the national government, losing the national government often means losing control over state policies as well. When nationalism replaces federalism, politics becomes a winner-takes-all tournament. The stakes are just too high.
Advocates of national control would argue we have it backward — it is decentralization that is the problem. Why have fifty small-scale solutions, which may wastefully duplicate policy efforts, instead of a coherent top-down plan? This way of thinking is superficially appealing but fatally flawed. By preserving the autonomy of state governments, federalism ensures that local political units produce the public goods and services that can most benefit their communities. For example, what’s appropriate for a state with large cities and high population density might not be for more rural, low-density states.
The national government should limit itself to those activities which are truly in the common interest of the whole country. In a diverse nation of 330 million people, the common interests of all citizens will be few and defined.
The Necessity of Preserving American Federalism
Federalism has several advantages over nationalism. First, in a federal system, individuals can self-sort into communities that match their preferences for taxes and public output. Some prefer localities with higher taxes and more generous public services. Others would trade a lower tax bill for fewer public services. By returning power to the states, people can choose the style of governance that best works for them.
Second, a federalist system has built-in feedback mechanisms for good governance, which centralization inadvertently destroys. In a federal regime, citizens can “vote with their feet.” Households can (and do) move when local governments become bloated and unresponsive. Witness the exodus from high-tax, high-regulation states like California and New York to freer states like Florida and Texas. Well-governed localities attract citizens and enjoy higher tax revenues. Poorly governed localities drive out their citizens and suffer dwindling revenues. This provides valuable information to local political authorities. Nationalism destroys this feedback loop because it’s much harder to move to a new country than a new state.
In the language of constitutional political economy, the branch of economics that studies how political rules are made, we want to empower the protective and productive state, while constraining the predatory state. Federalism helps us achieve this. Only if states are meaningfully independent of Washington, DC can they serve as a check on national overreach. Unfortunately, with each passing year, the prerogatives of state governments fall by the wayside. This will make Americans poorer and less free and will engender further political polarization.
Saving the American Experiment
Federalism is a crucial part of American constitutional design. Indeed, America would not be America without it. Much of what is wrong with contemporary politics is caused by nationalism run amok. Federalism helps solve the basic paradox of government: as James Madison famously wrote in Federalist 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.” We want the government to shield citizens from foreign and domestic aggression and produce important collective goods like the Interstate Highway System. We do not want the government to prey on its citizens, as occurs when special interest groups use the political process to enrich themselves at the expense of taxpayers.
The final benefit of federalism may be the most important: it’s how we “form a more perfect Union” and honor democracy. The democratic principle isn’t just about voting. It’s about self-governance in its fullest sense. To govern ourselves, we need continual public accountability. We also need ongoing policy experimentation. Federalism gives us 50 “laboratories of democracy,” from which we can learn what works and what doesn’t. With different states taking different approaches to various issues, we can learn how best to draw the boundaries between public and private. In contrast, nationalism weakens accountability and subjugates the democratic learning process to the whims of elites.
Federalism is in our political DNA. We fail to uphold the American experiment if we allow state governments to devolve into mere administrative conveniences of the national government. By embracing federalism, we can be governed without being ruled. It’s high time we restored state governments to their rightful place in our constitutional order.
The 10th Amendment: The Catch-All “Solution” and the Perversion of States’ Rights
By Steven Conn – W.E. Smith Professor of History, University of Miami
The Bizarreness of the 10th Amendment
My son is turning 21 in a few months. That means he has to get a new driver’s license. In our state, under-21s have vertical cards, while over-21s are aligned horizontally. Only my son goes to college 700 miles and four states away. So, he will have to drive 20+ hours, or take an expensive flight, in the middle of midterms to get the new license. He must endure this time-consuming, time-wasting, expensive necessity thanks to the 10th Amendment and our vaunted system of federalism that it enables.
The 10th is the final of the Constitutional amendments that are collectively called the Bill of Rights. I like to think of it as the “The Humidity in Philadelphia is Really Awful in the Summertime, Let’s Get Out of Here” Amendment. It declares that responsibilities not specifically “delegated” to the federal government “are reserved to the States.” It was an expedient way of avoiding a whole set of fights during the already fraught debates over the Constitution.
Issuing driver’s licenses is not stipulated as a federal power in the Constitution, hence you need to get one in a county DMV office run by the state DMV where you live, one of 50 such departments in the country. Fifty different driving manuals for new drivers; 50 different driving tests. Never mind that Americans drive across state lines all the time and that stop signs are red and octagonal in all 50. The 10th Amendment has given us the State Department of Motor Vehicles. The more you think about it, the more bizarre it all seems.
Bizarre, but innocuous. Across the last two centuries, however, “states’ rights,” the language of the 10th Amendment reduced to a bumper sticker, has been invoked largely to harass and oppress. It has been used as a cudgel by entrenched powers to bludgeon the less powerful. It has created geographic disparities to access to our basic citizenship rights. It still does.
States’ Rights: A Roadblock to Equality
The first time the banner of states’ rights got waved was during the 1840s and ’50s by Southerners who used the 10th Amendment to defend slavery. In their view, slavery was a matter for the states, and the 10th Amendment was their bulwark against growing national disgust. Indeed, the 10th Amendment itself can be read as a sop to slave owners. Slavery became a right “reserved to the States” because slaveowners successfully jousted to keep any regulation of it out of the body of the Constitution in the first place. No wonder: 25 of the 55 delegates sweating in Philadelphia during the summer of 1787 owned slaves.
The Supreme Court’s infamous Plessy decision was another milestone for states’ rights crusaders. Establishing its vile “separate but equal” rationale, the Court ruled in 1896 that legalized segregation was Constitutional. The legal issue boiled down to a fight between the 14th Amendment’s guarantee of equal protection and the 10th Amendment’s states’ rights guarantee. The 10th Amendment won, and as a consequence of this victory, Black Americans had to endure all manner of legalized humiliation, degradation, and second-class citizenship for the next six decades. All in the name of states’ rights.
Then, as the entire question of civil rights became federalized after the Second World War — thank goodness for that — states’ rights became the cry to rally defenders of Jim Crow and American apartheid. When Southern Democrats walked out of the 1948 nominating convention over the question of civil rights, they were popularly called “The Dixiecrats,” but the official name of their third party was “The States’ Rights Democratic Party.”
Notice that in both cases, the rhetoric of states’ rights had little to do with high principle and all to do with situational ethics. Defenders of slavery wanted their states’ rights to own slaves defended even as the Fugitive Slave Act trampled all over the rights of states where Black Americans were free. States’ rights for some states, apparently, but not for all of them. Likewise, when the Confederate flag-waving champions of racial segregation denounced the overreach of the federal government on the matter of civil rights, they were eagerly accepting federal money to build highways and hospitals, along with all the rules and regulations that accompanied that cash.
Since the Roe decision legalized abortion under certain conditions in 1973, anti-abortion zealots have worked tirelessly, and with increasing success, to turn reproductive freedom into another states’ rights cause. Over the last several decades, virtually every legislative session in Republican-controlled legislatures has seen some number of bills designed to restrict access to family planning procedures and family planning clinics and to otherwise harass pregnant women. Many of them have passed court muster and the result is that women’s reproductive rights and the privacy of the doctor-patient relationship vary dramatically from state to state. Thanks to this “states’ rights” approach to women’s health, the US ranks at the bottom of most women’s health indicators as compared to other wealthy nations.
The Modern Failures of Federalism
Most recently, of course, has been the failure of federalism to respond to Covid-19. Rather than a single, nationally coordinated strategy to deal with the pandemic, we got 50 different versions — some good, others which would have been farcical had they not been so deadly. And so your chance of infection has had as much to do with the politics of the state you happen to live in as with your age, underlying medical conditions, or kind of work you do. It turns out that the Covid-19 virus does not much care about state boundaries or the guarantees of the 10th Amendment.
Maybe we should not either. After all, states are purely artificial creations. State borders do not reflect ethnic or linguistic groupings, nor do they even conform to the natural features of the landscape in most cases. In the United States, state boundaries are largely arbitrary lines drawn on a map that represents no genuine on-the-ground reality.
Nevertheless, those arbitrary lines have turned out to be immensely consequential in all sorts of detrimental ways. Imagine a child born in 2021. That child’s prenatal care and chances of survival beyond the first year depend to a shocking degree on which state that child arrived in. The child’s education will be shaped too entirely by state-level policies that have created good public schools in a few places and lousy schools in many others. Should that child want to go to college, or should they wind up in the criminal justice system, those outcomes too will vary wildly from state to state. How does this in any way contribute to our national good?
And yet in the first months of 2021, even as the pandemic continued to ravage the country, Republican revanchists, in denial over the outcome of the 2020 election, have been using the power of the 10th Amendment to take away people’s votes. And why not? The 10th Amendment allows each state to set the terms of voting, so access to the most basic right any of us enjoys in a democracy is defined in 50 different ways. The blatantly anti-democratic, but entirely Constitutional, attack on voting is the most reprehensible consequence of the 10th Amendment.
In a nation this mobile and interconnected, the fetish of states’ rights created by the 10th Amendment is anachronistic and burdensome. As citizens of a single nation, we all ought to expect to be treated in the same ways regardless of what our zip code happens to be. Otherwise, beware: the next time you hear politicians banging on about states’ rights it probably means someone is coming to diminish your citizenship.
This article is part of Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.