Constitutional Federalism: Revisiting the Past for a Solution in the Present
Sean Beienburg, Fellow at the Center for Constitutional Design, Assistant professor at the School of Civic and Economic Thought and Leadership, Director of the Arizona Constitution Project.
In this week’s “Constitutional Conversations” post, Sean Beienburg argues that far from being “an obsolete impediment” to the implementation of social justice, as many on the progressive left and new segments of the right have argued, federalism is the constitutional architecture necessary for holding together an increasingly diverse United States.
One way to think about improving constitutional design is innovation—trying new things. Another is undoing some of those innovative reforms that either didn’t work or don’t work at a later time-- the imposition of national Prohibition by a constitutional amendment (and its termination by another) is perhaps the clearest example. While there are many who have argued that America should move closer to a unitary state, and that American federalism is at best a vestigial organ to be tolerated and worked around, perhaps we might consider whether prohibition offers the better lesson and we might instead consider ways to revivify federalism, especially in light of growing political polarization.
It is worth emphasizing, as a starting aside, that American federalism does not mean the states are left to their own preferences on individual rights; one of the very purposes of the Constitution was to put a list of constraints on the states (in Article I, Section 10), a list which James Madison had wanted to be longer and which eventually happened with the Reconstruction Amendments applying the Bill of Rights, equal protection, etc. to them. (This is also why claims of “states rights” in the 1950s and 1960s were not valid, and even many hardline states’ rights conservatives rejected it as inconsistent with the Constitution, just as the conservative states’ rights Henry Cabot Lodge had sought to do with his carefully designed 1890 Lodge Bill enforcing the 15th Amendment while avoiding a federal takeover of states’ election machinery.) So, American federalism is a presumption of state power, but not an ironclad one—one designed to, as James Madison observed in Federalist 51, create “a double security.” (As Judge Jeffrey Sutton who recently spoke at ASU, has explained, there is a third, as well, if including state constitutions, which can add even more rights protections, as, for example, conservatives did in strengthening eminent domain protections after the 2005 Kelo case and progressives did with abortion in 2022 in response to Dobbs.)
Federalism was once a unifying doctrine; as Frederick Douglass observed in an 1866 piece in the Atlantic, Americans would reject a post-Civil War consolidation of power in “a despotic central government, with power to control even the municipal regulations of States, and to make them conform to its own despotic will. [Such a development would fail because] …there remains such an idea as the right of each State to control its own local affairs, an idea, by the way, more deeply rooted in the minds of men of all sections of the country than perhaps any one other political idea.” Douglass argued, in the spirit of Madison, that the federal government needed to ensure core suffrage rights in state politics (and hence called for what became a Fifteenth Amendment) so that citizens could effectively utilize the double safeguards, but he did not see that as turning to a general exercise of federal authority. That’s also why Lodge’s later bill had carefully balanced constitutionally authorized enforcement of the national Fifteenth Amendment with the presumptive prerogative of states: As Lodge himself explained, nearly everything it did would have been about “publicity” and observation to ensure procedural fairness and aid pre-existing federal elections laws enforcing the Fifteenth Amendment. With but one narrow exception, as Lodge noted, the 1890 bill was carefully tailored to avoid “interfer[ing] with local officers or existing methods” more than absolutely necessary to ensure registration and suffrage. (The defeat of Lodge’s bill prevented Douglass’s hope to have southern electorates use state politics to destroy what became Jim Crow and marked one of the underappreciated tragedies in American political history.)
Douglass’s characterization of bipartisan, cross-ideological support for federalism held until the New Deal (with some Progressives criticizing it earlier.) Franklin Roosevelt, who had earlier sounded just like a Barry Goldwater in his odes to states’ rights, arguably ran to Hoover’s right in 1932, switching quickly after the election (as Goldwater later seethed) and leading to much of the party’s recent leadership abandoning him. Although we tend to associate the Progressive movement with centralization, due to some of the most prominent progressives (e.g. a post-presidential Theodore Roosevelt) being impatient with constitutional limits, it is often forgotten that many progressives defended federalism and states’ rights on the same grounds as modern left-communitarians—that states’ rights would enable additional checks on capitalism, imperialism, and the like. For example, here in Arizona, state leaders like George Hunt were committed to federalism in language that one would mistake for Barry Goldwater or Calvin Coolidge. (In fact, rather amusingly, Hunt was so hardline that he sometimes even criticized Coolidge as an excessively nationalist Republican.)
But that sort of ideological fuzziness is an artifact of the past, as one of the clearest trends in the last few decades of American politics is ever growing political polarization, which has tended to produce gridlock at best and rapid and alienating policy shifts at worst.
David French, then at the National Review, but subsequently a writer at the Trump-skeptical conservative Dispatch and now a New York Times columnist—in other words, far from a populist or MAGA firebreather- has written of the need to revivify federalism in the wake of such polarization. In columns with titles such as “Of course America is too big to govern,” (expanded into his book Divided We Fall), French argued that the long-term result of continuing to press for ever greater nationalization in light of ever greater polarization would be ruinous for our politics, perhaps even leading to the breakup of the Union and the complete collapse of the constitutional order. Especially in light of greater consolidation of power in the executive branch, the stakes of losing control of office grow higher and higher. As the parties have more divergent policies, and the presidency and bureaucracy can more aggressively implement that policy unilaterally, the prospect that one’s political rivals will attempt to radically reshape politics nationwide becomes more imposing. This, in turn, means the cost of losing an election becomes intolerable, leading to all of the pathologies we have seen that brings. For French, de-scaling the power of the federal government would lower the temperature of politics.
Such an argument was of course warmly received by more traditional conservatives, constitutional originalists, and the like, but less so by others on the right increasingly tempted to join progressives in viewing the constitutional architecture as an obsolete impediment to achieving their vision of social justice. Perhaps most prominently, the Harvard law professor Adrian Vermeule has defended so-called “common-good constitutionalism,” which critics view not just as a sweeping rejection of “federalism and the separation of powers, the structural principles of American constitutionalism,” but even as a stalking horse for Catholic integralism. In the last few decades, progressives have been able to take advantage of the asymmetry between the two parties’ constitutional views—they could defend an aggressive nationalism in power, while confident that residual conservative sympathy for states’ rights would limit the damage when the right wielded it. But as many conservative critics of “liberal” proceduralism debate jettisoning the right’s traditional emphasis on constitutional structures, progressives might see new value in them.
The Trump presidency made some progressives re-think this and wonder whether, indeed, the solution was to return to the sorts of policies and attitude of their ideological forebears a century before. Some examples were moderate—just as some earlier progressives had argued the states need not help enforce federal prohibition (but would not nullify it), so too would they not be commandeered into enforcing immigration or drug laws. Perhaps most audaciously, in the unfortunately and inflammatorily titled “It’s Time for a BluExit”, Kevin Baker argued in The New Republic not for left-wing secession but for, in effect, a redirection of federal taxing and spending to the states as part of a broader effort to build more robust protective welfare states at the local level. Succeeding in this would require rethinking features of the current American constitutional order—for example, to avoid a race-to-the-bottom effect, states would need to be able to again have residence requirements to protect generous welfare states, something the Supreme Court blocked five decades ago in Shapiro v. Thompson (1969), over the protests even of New Dealers like Earl Warren and Hugo Black. William Rehnquist’s compromise proposal in US. v. Lopez (1995) would be a less radical alternative to strengthen federalism. In that case, Rehnquist signaled that, despite his belief in the constitutional dubiety of the New Deal expansion of federal interstate commerce powers, the Court would tolerate their application to regulate local economic activity in the wake of greater market integration, but would draw the line on federal legislation involving non-economic policies and the states’ core police powers, such as basic criminal law. Progressives concerned about a newly nationalized social conservatism—of the kind willing to consider national abortion bans, for example—might wonder whether it is worth accepting Rehnquist’s effort to synthesize constitutional principle and political reality (as progressive justices on the 9th Circuit did in the federal marijuana case that became Gonzales v. Raich (2005).
We perhaps find ourselves in the inverse moment of 100 years ago—then, a consensus existed on behalf of American federalism. Today, most progressives have decided it is obsolete, and some conservatives are flirting with joining them in that position, discarding a carefully calibrated system that recognizes core protections, rights, and structures throughout the country while allowing diversity among the states and tempering the scale of conflict. As Americans look around our fracturing political system, it is worth considering not just minor institutional reforms (such as reducing the scope of party primaries) but whether we have erred in discarding features of our constitutional order that may be even more necessary today.
Sean Beienburg is a fellow in the Center for Constitutional Design and an assistant professor in the School of Civic and Economic Thought and Leadership at Arizona State University, and the director of the Arizona Constitution Project. He is the author of Prohibition, the Constitution, and States’ Rights (2019) and Progressive Federalism (slated for publication in fall 2023).