The state of the union today is uneasy, at best. Washington is crippled by gridlock while Americans across the country feel alienated from their government, so much so that the president feels compelled to remind them that the government is “us.” But is it really so, in a meaningful sense? Sure, the people choose their lawmakers through elections, but does the government actually represent their interests? If it does, why does it fail to solve their problems? Why does it curry favor with narrow, well-heeled interest groups, who persuade Uncle Sam to supply patronage even as he is paralyzed on the big issues that matter to the rest of us?
In the face of these anxieties, Americans would do well to revisit an old principle, easily forgotten, often disparaged, but still inherent to our governmental structure: federalism.
Federalism has a strange and tortuous history in the American experiment in self-government. Alexander Hamilton and James Madison—the principal authors of the Federalist Papers—actually had little use for federalism in their first drafts of a new Constitution. Madison and his fellow delegates from the Old Dominion offered a plan to the Constitutional Convention that entitled Congress to legislate in all areas in which the states were judged to be incompetent. It also gave the chief executive a veto over state laws. Hamilton’s proposal for the new government had an even less significant role for the states.
Their determined nationalism was in part a response to the disastrous experience of the 1780s, when omnipotent state governments had acted with gross irresponsibility, undermining the rights of minorities and threatening the common good for the sake of parochial interests. Madison believed that a strong national government would attract a better sort of politician than often seen at the state level, and that a well-constructed government for a nation as vast as the United States would ultimately give a multitude of factions within society an effective veto over public policy, ensuring that whatever the government did would not run contrary to private rights or the public interest.
It was only through a compromise between the small and large states that the Constitution established a system of “dual sovereignty” and a further compromise with skeptics of the new constitutional scheme (ironically dubbed the “Anti-Federalists”) that Congress adopted the 10th Amendment, which underlined the limited nature of the national government’s powers. But federalism was not wholly wrapped up in concerns about minority rights at the time of the national founding. In fact, the staunchest anti-federal opposition came from Massachusetts, New York, and above all Virginia, large states that would naturally have a prominent role in the new government. Historians have suggested that the Anti-Federalists probably represented a majority of the nation at the time, and their skepticism of the national government was born out of fear that a privileged minority would eventually overwhelm the majority.
As it turned out, “federalism” became the rallying cry of anxious minorities from ratification forward. It was easy for minority leaders to start calling on the feds to back off after their side had lost in Congress. That is why the once-firmly nationalistic Madison would later pen the Virginia Resolution to try to stop Hamilton’s “High Federalists” from consolidating their grip over the national polity. Once the Virginia dynasty was inaugurated with Thomas Jefferson’s election, Madison’s worries about an overwhelming national power subsided. Predictably, concerns about minority rights then crept up in the previously nationalistic states of New England. The locus of High Federalism, the Northeast came to embrace federalism, limited government, and even (for some) secession as means to check the ambitions of the Jeffersonian coalition of Southern and Western farmers. Ultimately, the slave states adopted the extreme federalist principles of nullification and secession only after it became clear they would be outnumbered. In fact, the greatest antebellum champion of state sovereignty, John C. Calhoun of South Carolina, was a stalwart nationalist in his early days in Congress.
Given how quickly different factions flipped then flopped from nationalism to federalism depending on their own interests, it is unsurprising that federalism has gained a reputation as a phony posture. More often than not, its advocates were less interested in the balance of powers generally than in their own political fortunes. Nobody worked this hypocrisy better or longer than the Southern plantation elite, and federalism would become synonymous with Jim Crow for a half-century.
The amoral misuse of the federal principle is an unfortunate theme of our nation’s history. If Madison was correct that the state governments had been too irresponsible to retain the power they once enjoyed, the skeptics of the Constitution made equally valid points about the danger of unchecked central authority. They worried that a national government would draw too heavily from elite quarters of society, leaving the majority of yeoman farmers an effective minority and degrading the republican character of the government. These worries are strikingly similar to the concerns people have nowadays. Indeed, reading the Anti-Federalists, one cannot help but wonder if they had a crystal ball that peered into the 21st century. At the least, their predictions of an ever-expanding federal state turned out to be more accurate than Madison’s assurances that the Constitution would provide a due check on Washington’s authority.
This is not to say that we should expect the states to be paragons of true republicanism; the 1780s demonstrate quite clearly that they are not inherently more virtuous than Washington. Nevertheless, their geographical, social, and economic proximity to the people at least holds the potential of a more responsive representative government. What’s more, the triumph of the civil rights movement over the last half-century has dramatically reduced the dangers of anti-republicanism at the state level. The Constitution as ratified offered the decidedly ambiguous instruction that the states had to have a “republican” form of government. The Supreme Court has since mandated that state governments have a legal obligation to provide for universal suffrage regardless of race, sex, or property and obey most of the Bill of Rights, which was originally written to constrain only the national government.
The state governments also hold the promise of moving beyond gridlock. The Constitution would allow faction to fight faction, as Madison argued in Federalist 10 and 51, with the structure of government such that it would either translate the vast array of parochial desires into the public good or do nothing at all. But that was in 1787, when the electorate was confined to the original 13 states, entirely white, entirely male, mostly Anglo-Saxon, mostly Protestant, mostly property owners, and mostly yeoman farmers. A diversity of interests back then meant something quite different than it does today. Wave after wave of immigration, combined with the civil rights movement, women’s suffrage, and geographical, religious, social, and economic diversification means that it is extremely difficult to identify what is well and truly in the “national interest.” Is it any wonder that the national government seems paralyzed? After all, it was designed that way: So long as there was no identifiable national interest that could unite a broad, deep, and durable coalition, the national government would produce gridlock so as to keep a minority from having its rights or interests undermined by a fractious majority.
A revival of the federal principle is a sensible response to this civic malaise. The states have a valuable role to play, not merely as satellites of Washington, D.C., but as semi-sovereign entities that can solve problems the feds cannot. Just as state governments are closer to the people, they often represent citizens with a greater commonality of interests, thus cutting down on the potential for crippling gridlock. It is one thing for the federal government in Washington to balance the interests of Kansas and California, quite another for Kansas and California to develop policy solutions that balance the interests within their own states. A 50-state panoply of varying solutions seems preferable to never-ending gridlock, so long as minority rights are protected (which, again, the Supreme Court now mandates).
None of this should imply an endorsement of the extreme Anti-Federalism of Patrick Henry or the pro-nullification position of Calhoun. The states are, and should remain, secondary to the federal government. The point is simply that there are obvious uses to be made of the state governments, uses that have been overlooked because of the bad—but now antiquated—reputation that federalism has of being a tool for elites to keep the masses in an artificially inferior position. The original advocates of federalism thought it to be exactly the opposite.
The modern left, of course, will never embrace such an idea, having lashed itself to the mast of an all-powerful national government. But conservative reformers are not tied to such ideological preconceptions and should revisit federalism as a potential solution to our policy problems. Richard Nixon’s New Federalism sought to return executive authority to the states, and the welfare reform of the 1990s did likewise, but since then the right’s commitment to federated policy solutions has weakened. It is time to strengthen that commitment, and to make the case that there is more—much more—to federalism than the protection of minority rights. It is, rather, a vehicle by which popular majorities may gain greater control over their government, and a way around the seemingly intractable problem of national gridlock.
Jay Cost is a staff writer at The Weekly Standard.