In Defense of States

Thank you Josh. Excellent post.

I might give more respect to Yglesias' and Klein's opinions if I didn't suspect that if god forbid we ever elected a Sarah Palin, and she decided to implement her agenda, Yglesias and Klein would most probably be rediscovering the virtues of federalism.

As for addressing some of the over-representation of rural areas, I think a good place to start would be vastly expanding the House of Representatives. This would end up reducing the weight of the rural states in the Presidential election, and simply put it would make our government more democratic.

The "bait-and-switch" that you're talking about isn't something that's being considered as a modern adjustment. It happened in 1865 and was formalized in 1869. The states may well have gotten into the Union as sovereign entities, but once in, they're not sovereign anymore, courtesy of the United States Supreme Court and the United States Army.

To be more specific, I would argue that the Union victory in the Civil War and the Supreme Court's followup in Texas v. White in all vital effects repealed the tenth amendment. The states do not, in fact, have all unenumerated rights reserved to them, because they can't secede, and contrary Justice O'Connor's odd belief, you cannot have "residuary sovereignty." Sovereignty, the ability and right to do as you will, is not the same as freedom, which can be constrained, limited, and partial. It is by definition absolute-you either have it or you don't, and the states don't.

Federal, State, City and County government.

They all do the same thing. They pass laws that tell us what we can or cannot do. They fix or do not fix our problems. They take money from us in the form of taxes and provide services we may or may not need.

In the end, what matters most is whether these governments...intertwined as they necessarily are...pursue progressive or conservative policies. And how effective they are in carrying them out.

Take the civil rights struggle in the 50s and 60s. On the Federal level, the government was moving to the left; meanwhile in reaction to this many state and local governments [particularly in the South] were moving to the right. If you were a racist living in Alabama the Feds were communists and the State was a bastion of "freedom". Otherwise known as white skin privilege.

"Sovereignty", fine. But sovereignty to pursue what? All the rhetorical Founding Fathers idealism above does not in any way shape or form change the fact that government is about power. It is about what we let those who have power do or not do. How the systemic pieces fit together is not nearly as important as that.

If you embrace a liberal position on abortion what difference does it really make if the federal government is "usurping" state power or the state government is "usurping" federal power with respect to passing or enforcing laws that restrict or widen access to abortion? If the Feds [in Congress and the White House] are trying to expand access and your state government is trying to restrict it how deeply entangled are you going to delve in the theory of "state's rights" and the Constitution?

No, you'll work to elect those in either the state or the federal government who support your values regarding women and abortion. In the end, it's always about those who have the power to force you to do things you don't want to do. Or to prevent you from doing things you want to do.

It's like the age old squabble over a presidential or parliamentary system of government. Or one in which the central government is powerful while the local government is weak. Which is "the best"?

Either. Neither. It's all about how much power the politicians have over you and what they use that power to accomplish. And in a truly functioning democracy the more citizens there are who follow these relationships closely, the more likely it is that something somewhere in the middle of the political spectrum will become The Law.

Again, with two crucial exceptions: fundamental economic and foreign policy. Here the very rich and the very powerful on the national stage will forge and fight over these narratives. The state, city and county governments don't mean squat.

Never have, never will.

You know, like the voters themselves.

george walton
j

I generally agree with Josh's perspective here, but it's worth remembering that it simply is not true that most states "joined the Union" and in so doing gave up some sovereign powers to the federal government. Most of the states are creations of the federal government, carved from federal land by federal decree, with borders drawn by the federal government, and with state governments established by federal law. The thirteen original colonies, plus Vermont and Maine, along with Texas, West Virginia, and Hawaii can claim some form of preexisting sovereignty that precedes entry into the Union. The rest of the states are federal creations whose sovereignty as states is the devolved gift of the federal Union, quite the opposite of the theoretical-but-counterfactual idea of preceding state sovereignty surrendered only in part to the federal Union.

I'm all for the kind of deep federalism Josh advocates, but even while making the case we would do well to remember how much of the argument is a legal fiction, a metaphor, and not a historical or moral reality.

Mr. Patashnik,

You are right in saying that Klein is wrong to call state's rights "a cold political compromise" when the constitution was written. I can believe that the founder's had principled reasons for granting state's sovereignty. But so what? The founders weren't perfect, and they lived in a very different world. Back then most people had a stronger sense of state identity than national identity. The nation hadn't even existed as a coherent unit for very long. Now a days, half of all Americans live in states they were not born in. And as different as the politics of Wyoming and Massachusetts may be, it's nothing compared to the societal differences between 18th century Rhode Island and South Carolina. Besides, our obsession with the Founders' intentions is a little weird anyway. We shouldn't hang on to Madison's writing the way that Confucianists parse every word Confucius ever said. The question is do states make sense?

This idea that small states need a veto, what with everything Rhode Island, Montana and Arkansas have in common, is kind of silly to me. If there's one lesson to be learned from the last thirty years it's that there are too many veto points in American politics for anything to actually get done. And the current system means that if a couple populous states need something that everyone else doesn't, lots of people are really screwed. A high proportion of our antiterror funding should have gone to New York and Washington DC, but instead a lot went to protect municipal libraries in farm states or whatnot.

There are advantages to federalism I'll grant, like letting states try different policies and customizing social policies to community preferences. There are disadvantages too: Indiana doesn't care about acid rain in New York, gun control has to be national to be effective, multi-state businesses have to deal with multiple regulatory regimes and tax codes etc. On the whole federalism may be worth it. But the current demarcations of states make no sense. Not that there is anything we can do about that, but still. Divide oh California!

Klein and Yglesias, unsurprisingly, have it back-asswards. Most of the serious domestic problems, and not a few of the international ones we face today are the direct result of unintended consequences flowing from actions taken by the Federal government. There has been a steady ratcheting up of power in Washington over such a great variety of areas unrelated to national governance as to make lobbying perhaps our greatest growth industry.

If we think of governmental actions as a pyramid, most of the things most important to a normal life, the base of the pyramid, are carried out by local government--schools, policing, garbage pickup, parks, libraries, etc. Most of the rest are, or should be, the responsibility of the States. The Feds should stick to the top of the pyramid-- guaranteeing that our Constitutional rights are uniformly unhindered, that we have a national defense establishment and monetary policy, and little else. Unfortunately the money and powers available increasingly stand the pyramid on its apex.

acria is dead on with the fact that depending on the issue and the party of power in DC, liberals or conservatives can be enamored of states rights. Interesting how Republicans are all for states rights, except when it comes to gay marriage (but not abortion) gun laws, insurance companies overriding state regulations by being nationwide, etc. and, of course, the Liberals are for a strong federal government, except when Republicans are there.

Every large country I know of is divided into states (or provinces). As far as I know it is universal throughout the world, and we are talking about very diverse systems. Germany, Mexico, China all have such systems. About the only criticism I can make about our system is the Senate, I would prefer it be based on a combination of population and statehood, with each state guaranteed one Senator, and the remaining half divided by population.

Succinctly and well put, as usual Bob.

Thanks blackie. It's nice to be back, and the new website seems to me a great improvement. Best feature--return to timely posting of comments on articles.

See you, and hopefully some of the other vets, around.

No need to get radical here and change the makeup of the Senate; just get rid of that damn filibuster. An out-sized Senate veto for small states is fine, but combined with a supermajority requirement the institution becomes downright intransigent.

At any rate, that'd be a great start. Let's try that and see what we think of federalism then. Sure, Democrats may regret it if/when the GOP regains Senate power, but--yes--elections matter. At any rate you can (usually) fix it the next time around.

Josh makes about as good an argument as can be made in favor of our current arrangements. It's not a very good one. As a practical matter, of course, there will be no major changes in the structure of the federal government. But the post is dealing in theoretical possibilities and justifications for them. On this terrain, our current system -- especially the wildly disproportionate representation in the Senate -- is indefensible and leads to bad policies and unfair outcomes. If I were king of the universe, I would certainly create units of government smaller than the largest one, just as states create municipal corporations with local control over various issues. This is for reasons of local responsiveness, administrative convenience, and policy variety and experimentation. I can't think of any other arguments. Those reasons don't justify *state sovereignty* as such, don't justify the Senate make-up, and don't justify the lingering view that states possess some sort of mystical significance in and of themselves.

Josh first points out that we have a federal system, and that states are sovereign entities. True, but why should they be?

He next argues that Klein proposes an "unconscionable" "bait-and-switch," because state sovereignty was part of the bargain that led to ratification of the Constitution. There's nothing unconscionable about making an argument for why a different bargain would have been better or would be better going forward. This is just question-begging. It says, "We shouldn't change the system, because the system we have is the system we have."

Here is Josh's main idea: "The underlying premise of our federal compact is that we're not concerned solely with what 'makes sense' for the nation as a whole; the interests of each state deserve independent respect. On one level a Vermonter and a Californian are equal as Americans--but on a different level, a Vermonter and a Californian are qualitatively different, and we don't simply tally up which group has more people."

So, what "makes sense" is not an admissible argument, because our federal compact is premised on not making sense? Nobody is advising actually violating the Constitution, so describing what our federal compact is premised on is not really responsive to Klein or others who are making arguments against those very premises. After all, our "federal compact" was once premised on slavery too. Josh is in danger of falling into the document idolatry trap. The question is whether the Constitution could be better. Yes it could.

The next bit is hopelessly fuzzy-wuzzy. States, we are told, deserve "independent respect." Why does "independent respect" require disproportionate representation in the Senate? I have no idea. That seems like giving *extra respect* to small states -- the most outlandish affirmative action program ever -- and *disrespecting* other states in the bargain.

And what does *this* mean: "On one level a Vermonter and a Californian are equal as Americans--but on a different level, a Vermonter and a Californian are qualitatively different." How so? One lives in one state; the other in the other. Why does that matter? How does it justify our current state of affairs in which each individual Vermonter has much greater say in the Senate -- on confirmations, whether we go to war, veto power over every piece of legislation in an already veto-biased body, etc. -- than each individual Californian. What possible "qualitative difference" could justify this massive violation of the principle we otherwise agree with and adhere to rigorously -- "one person, one vote"? (In fact, we adhere to that principle so rigorously that even minor population differences among voting districts within a state are held unconstitutional.)

Having avoided the main "normative" issue, as Josh puts it, by trying to argue that "making sense" is "unconscionable," he finally does address himself to the only real question here, which is "What *justifies* our current arrangements?"

First, Josh asks, What's the alternative to our current arrangements? Well, there are many. Josh makes the points I made earlier about local responsiveness, policy variety and experimentation, and administrative convenience. I agree with all of those ideas, but they don't necessarily support state sovereignty and they certainly don't support disproportionate influence in national government.

The most extreme alternative model, which would still address all of Josh's concerns, is obvious: States would not be sovereign entities but rather creations of the national government, just as cities are creations of state government. Let's call them "provinces" instead of "states." The provinces would have home rule, just as many cities do, and could continue to be free to make all of the laws that Josh refers to -- criminal law, family law, property law, etc. -- just as states do today. The difference is that the provinces' laws would be subject to national law -- as they are today -- but the scope of permissible subjects of national legislation would be seen as greater than it is in our federal system. So, home rule would be retained, and it would not be necessary to reach national consensus on every issue, but, if the national government -- which would represent the people fairly -- perceived a need for a national solution, it would be able to enact it without violation of the charter.

Some may gasp at this point. You mean, the federal government, which would no longer really be "federal," would be free to run roughshod over "province" government? Like Klein, I am not nearly so concerned about a national government run amok at the expense of local control. The founders' emphasis on this point is, I think, excessive for modern times. The federal government is required today in order to address some nationwide problems in a uniform, efficient manner and solve collective action problems among the states. The national government ought to be able to do that without artificial constraints. I had a law professor once who said with respect to the federal government's power, "The federal government should be able to do what it makes sense for it to do." There's that criterion again: making sense. It's difficult to predict as a general matter what will "make sense." As a practical matter, this is what the national government does anyway -- that is, pretty much whatever it wants and can be bothered to actually accomplish. I'm not persuaded that our tendencies to, say, leave education or criminal law largely up to the states or even more local bodies, are always required in principle. Besides, we would probably end up doing basically what we do already, which is serve up a mix of state and federal involvement, even in schools. Remember, we would always be able to argue that a particular issue is not suited for national action. It's just that, in my world, such arguments would have to be supported on the merits.

Another alternative is to retain state sovereignty basically as we have it, but introduce proportional representation into the Senate. Josh's arguments against that alternative fall flattest. Josh raises the example of cap-and-trade. He says, basically, that our current system would result in the same policy as my system, except that it will contain sweeteners for small states to get on board. But what if the sweeteners cause the bill to be ineffectual? Handing out money to entrenched minority interests is, I always thought, a *bad thing.*

Josh wants us to sympathize with minority interests who would be negatively affected by legislation. But, if that were your concern, would you design a two-vote-per-state legislative body? The minority interests that are beefed up are arbitrary. There is no systematic protection of minority interests built into our legislative system except for those that benefit from the happenstance of geographic boundaries.

I reserve equal or greater concern for minority interests that do *not* happen to fall along geographic boundaries -- say, the poor. They do not fare well in our system, because they don't have money with which to pay for lobbyists, and they don't happen to fit tidily into particular governmental units with outsized influence. Josh worries about big states sticking it to little states. This is a silly image that neglects that states are just places where people live. It so happens that a lot of poor people live in more populous states. So, as we give money away to the farm lobby in what TNR-types regard as the prototypical lousy policy, we find that, in fact, small states are "sticking it" to large states, with the result that some minority interests get screwed and others get rewarded. This is no way to run a principled government.

Yes, the judiciary protects some minority interests. This is to ensure that everyone is treated equally before the law. But, we don't generally apportion representation based on those interests. So, we don't give every racial group an equal number of votes in a legislative body, even though members within those groups share a greater bond than I do with a downstate Illinois farmer. We don't give every income group an equal number of votes in a legislative body. We don't apportion Senate votes based on occupation groups or industry groups or age or ethnicity or immigration status or how much land you own, or any number of other classifications of people that are far more significant in every rational way than what state you live in.

With respect to such groups, "we [*do*] simply tally up which group has more people" when it comes to apportioning representation. This shouldn't be seen as crass or simplistic. It's the basis of democratic government, and the only alternative is rule by arbitrarily privileged minorities, which is what the Senate gives us. If anything, *that's* what's really unconscionable. The only unit of moral significance in the world is "person."

By the way, we have a model for a different structure of government, and it's neither radical nor foreign. I'm referring to state government, which is typically characterized by a bicameral legislature where the Senate is composed of representatives of equally populous senatorial districts. As in the national government, state senators typically serve longer terms and represent larger areas. Suppose someone wanted to give equal representation in your state senate to, say, counties, or, if you have too many counties in your state, say, regional blocks of roughly the same geographical size but of very different population. Putting aside that such a plan would be unconstitutional, would you like that idea? If not, why not? In my state, Illinois, a lot of state money goes to the Chicago area. One could argue that the Chicago area is running roughshod over the rest of the state. Or, you could point out that the Chicago area gets a lot of state money because, you know, that's where all the people are.

jhildner1 makes all excellent points. To which I add: a promise made to an institution is not the moral equivalent of a promise made to a person or even a family. Especially when not only is everyone involved dead, but the *great-grandchildren* of everyone involved are dead. You cannot deny that, if establishing a new North American union, we would never in a million years today decide to enfranchise North Dakotans 100 times more potently than Californians, especially in order to save the feelings of something as amorphous as a "state" (I have resided in five over the course of my lifetime-- according to flinty old Patashnik, my psychic loyalties must be so divided I should get therapy!) My point is based in rationality, which must sometimes act counter to tradition: this truth contains all the important differences between liberalism and conservatism.

Stupidest TNR post I ever read.

My substantive rights ought to be subject to change as I drive across the GW Bridge from New York into New Jersey?

A Vermonter is as different from a Californian as a Quebecois? Or even more different, since Vermont is right next to Quebec?

Yeah, the United States was formed as a confederation of sovereign states. That was back when muskets were the arms of well-ordered militias and we needed a Third Amendment to keep troops from being quartered in our Manhattan co-op apartments, oops, I mean our log cabins.

I may be the one of the few who's been reading TNR long enough to recall a TNR cover story titled "Abolish the States". As I recall, it was in the early 1980s. So this idea comes along every now and then.

If we were designing our system from scratch, I'd favor giving the federal government more power in certain areas, and there may be a few inherently national topics, such as insurance and bank regulation, which need to be pried out of the states' hands. But we need to recognize that history has its own weight (perhaps that's more of a European notion than an American one); also there are sometimes advantages to dispersal of power (e.g., when Republicans are in control in DC).

Finally, I'd class the Ygesias/Klein proposals alongside ideas for abolishing the electoral college; it just isn't going to happen. Small states DO have an effective veto in these matters, so let's concentrate on something productive, like health care reform and climate change legislation.

Josh's argument proceeds by substituting history for politics and arrives at tautology: our system based on states is desirable because someone at some point ("the Founders") desired it. They desired it enough to expressly reject other models. Well, no one disputes that. But they also created mechanisms for changing the Constitution, recognizing in their infinite, foundational wisdom that later generations might not desire the same things and might be facing different social and political realities.

As polemic this article is feeble; as history it's wildly distorted. To come to an honest appraisal of whether our current structure is suited to our historical situation, you have to be unflinching in assessing why the Founders found the structure suited to their needs in their day. The two social realities of late 18th C America that made the confederation of states model desirable were 1) slavery; and 2) agriculture (and of course the two were closely interwoven). Since then, we as a people have 1) figured out that slavery is a crime of world historical proportions and 2) become a modern, urbanized, industrial and even post-industrial economy where only 2% of the population is occupied by agriculture. So this is what "gets left out of" Josh's "historicist" argument! And this only covers the original, foundational geo-political situation in the country. That is to say, it doesn't even take into account the vast majority of more recently founded states, whose very existence is owed to the foresight and initiative of the federal government, by means of its military actions and economic policies.

As for the notion that "sovereignty" explains anything, Josh's argument is even weaker here. No, as a historical fact, the current arrangement of states does not "pre-date" the U.S. government. Before the Revolution, the Eastern seaboard of the American continent was divided into colonies, the sole political function of which was, ultimately, to enrich the British crown. The states as we know them were only brought into existence by the Constitution, which was itself the result of a deliberate rejection of a failed confederation of states. Every advance and modification to the Constitution since its execution has been in the direction of making more palpable and real the complete supremacy of the federal level of government over the states. And these legal niceties only ratify what is long-established and unimpeachable poltical reality by this point. Why did Wisconsin raise its drinking age to 21 about 20 years ago? Because the federal government said if you don't, we'll cut off your highway funds -- only one of a virtually infinite list of possible examples.

So what is the alternative? Certainly a valid question. A more functional approach would begin by recognizing that today's America is a country with a democracy deficit. To make this country more democratic, one would need a political structure that ceases to privilege rural over urban and new lands over old lands. Begin with a series of city-states, each encompassing a particular metro region -- let them deal directly with the federal level, which, for its part, should be subject to more direct and widespread democratic accountability through direct elections and referenda.

Ours is a country with one predominant language and, due to developments in communications technology, a highly homogenized, even "globalized" culture. There is no cultural or political reason to treat people on either side of completely arbitrary cartographical lines (many of which were drawn by bureaucrats in Washington) as if they belonged to significantly different "sovereignty units," especially when such a structure damages our common interest in creating a democratic society.