The following is an opinion contribution and reflects the author’s views alone.
We live in a country divided. And contrary to what pundits may say, this is the way it is meant to be. The United States is a large country with a geographically-dispersed population containing a diverse set of religious and ethnic groups. To say that such a population should be – or even could be – governed under a unitary government implies a certain amount of historical revisionism. The name says it all: this is a country of United States, rather than one controlled by a homogenous governmental unit. Unfortunately, much of the public has forgotten the reason why this division of power between federal and state governments exists, letting state governments atrophy, while handing the federal government power over our daily lives. Through this perspective, many of the ills facing the country today are not grounded in irreconcilable divisions between left and right. They come from our willingness to permit one entity (the federal government) to use its substantial powers to infringe on the rights of those who did not elect the ruling majority of the day. Our political divisions are not permanently intractable: by resurrecting the ideal of a federalist system, we could solve many of our contemporary problems in a manner satisfying those of all political stripes.
Let’s start with the basics: why does the United States possess a federal system of government? The simple answer is because the Constitution says so! Since this document is the “supreme law” of the land, it follows that decision-makers should heed its words, even if there is disagreement over their exact interpretation. The document specifically mentions how jurisdiction is to be divided between the state and federal governments, while describing the structure of the federal institutions and listing the powers (such as the ability to raise a militia and regulate interstate commerce) which are possessed by the federal government.
Notably absent from the Constitution is a list of specific powers granted to states. Why is this? The idea was that the federal government would be one of delegated and enumerated powers that held jurisdiction over certain governmental functions essential to maintaining a cohesive nation, such as internal free trade and a common defense – but that the states would be governments of general jurisdiction which would possess all governmental powers not explicitly enumerated in the Constitution, as mentioned in the Tenth Amendment. The Framers of the Constitution often talked about how states would have complete control over “police powers” – an archaic term for governmental actions involving the “health, safety, welfare, and morality” of the people. Though the Bill of Rights (later explicitly applied to state governments through the 14th Amendment) was meant to protect certain fundamental rights from governmental interference, it was still up to each state to determine the laws it best saw fit for governing its own people. The idea was that the best way to both protect individual liberties and promote better governance was by decentralizing power into entities closer to the people – the states – which were more responsive to the problems and desires of their local population than a centralized federal government ever could be.
And for the most part, the system worked. While certain states infringed on fundamental liberties (with slavery being the most egregious example), the United States still enjoyed unprecedented prosperity and religious tolerance that was completely absent from Western Europe at the time. The United States’ federal system was so successful that other countries began to adopt variants of it, including many current and former monarchies such as Germany, Canada, Australia and ironically, the United Kingdom itself! It is hard to imagine today, but most pre-industrial governments were conceived as unitary entities under the rule of one monarch or emperor, or as quasi-democratic entities (such as the Roman Republic) whose ultimate power rested in a capital-city elite. The Framers understood the problems caused by such systems and were prescient enough to realize that empires fell when a central elite became “out-of-touch” with the desires of citizens in far-away lands – and that governments would need to be responsive to the people in order to adapt to contemporary realities, which would occur by having governments “close to the people.” Such a federal system has been able to guarantee individual freedom and economic success in a way no governmental system has done before – when implemented as originally conceived.
But today, this system is in crisis. Executive power has replaced state legislative power as the primary means of drafting rules, with federal agencies (under the auspices of the Executive Branch) creating the bulk of regulations governing healthcare, welfare, and public safety. Today, the federal government receives over 60% of the nation’s total tax revenue, with the remaining 40% being collected by states and municipalities. Other countries do just the reverse: for example, in Canada (a country with a federal system very similar to the United States) only about 40% of total spending is attributed to the federal government. While tax revenue is not a perfect indicator of how much power a certain level of government possesses, it is clear that individual states are not fully exercising their constitutional right to be entities of “general jurisdiction” with its concomitant spending and regulatory powers – and that citizens have permitted this gross transfer of power from the local level to the elites in Washington without much of a second thought.
A quasi-centralized government lacks the benefits of a federal system while still carrying the baggage of a unitary system. The first drawback is the ability for a muscular federal government to trample on the rights of a minority which did not elect it. This is evident not just in Congress and the Executive branches, but also in the Courts: Democrats and Republicans clamor to appoint justices because they both want to exert power long after their governing mandates have evaporated. The flip side to this is that the party out of power always seem to advocate for “state rights” – and then hypocritically change its mind once they have gained power. It is a vicious feedback cycle which fuels the narrative that federal politics is about exerting your (and your party’s will) on a helpless minority, rather than collectively solving problems for the good of the country.
But if the federal government did not possess the power to control healthcare, welfare, or local policing – as the Constitution suggests it should not – then the federal government would lack the ability to exert undue influence over the daily lives of everyday citizens, and voters would change their attitudes towards electing federal politicians because much less would be at stake. This would particularly change the role of the Supreme Court, because it is now commonly accepted among people of all political persuasions that the Court possesses judicial supremacy, a doctrine that permits the Court to strike down any state law it views as unconstitutional. For both Democrats and Republicans, the Supreme Court is the ultimate prize – and their ultimate peril, should the other side gain control. While having a Supreme Court is necessary to give a final opinion on claims relating to federal jurisdiction, it alone should not be tasked with preserving the rights of minorities, nor providing a final ruling on matters of “general jurisdiction” that are constitutionally delegated to the states.
Instead of having a group of unelected, unaccountable jurists decide controversial issues on which reasonable people could disagree, states could enact legislation that reflects their population’s unique view on the subject. This would help to diffuse the “culture wars” about particularly divisive issues like abortion. In this way, having a federalist system of government is actually anti-majoritarian, because a minority of states could decide to enact different rules than the majority of states. Even if there were to be a situation where a certain state was to enact an unfair or discriminatory law, citizens would (hopefully) be able to move to a different state where such a law would not be in force. But if the federal government or the Supreme Court enacted such a law, the affected minorities would have nowhere to run, because the law would encompass the whole nation. In short, a federal system reduces the risk of widespread minority repression, increases the democratic legitimacy of the federal government, and would also make the country much less polarized.
But states don’t just exist to protect minority rights – they are also meant to serve as “laboratories of democracy.” By giving states wide latitude to enact laws and regulations as they see fit, some states will inevitably approach social and economic issues differently than other states. Many will inevitably fail, but others will succeed – and in turn provide a model that other states could follow. However, under our current model of government, such experimentation is often impossible: when the federal government has a near-monopoly over food and drugs regulation, healthcare policy, environmental protection, welfare distribution, and technology policy, it is difficult for states to try a different approach that may be more successful. In this time of rapid technological change, it is imperative that we permit differential regulation at both the local and state level in order to permit innovation to flourish. This experimentation on a grand scale is what has given America its competitive edge in the past, and what will continue to do so in the future.
This is not to say that the federal government is completely unnecessary. Certain functions essential to operating a cohesive country must be performed by a national body, and there must be certain fundamental rights (including equality rights and freedom of movement) which are upheld universally. But this does not imply that the federal government should be allowed (or encouraged) to enact regulation that infringes on a state’s general jurisdiction. The best way to permit both protect minority rights and promote good government policy is through a federal system in which states are given broad discretion to enact laws as they see fit. Returning to the Framer’s intended vision of government would dramatically reduce political polarization, and force voters to think more concretely at the local level, rather than deal with vitriolic abstractions at the federal level. And the best part of it all? A framework for such a system of government already exists in the Constitution. All that is missing is the popular will – and some long-term strategic thought from partisans who prize short-term gain over long-term success.
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