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Federalism: Political Identity and Tragic Compromise

By Jack M. Balkin

Malcolm Feeley and Edward Rubin have just published an excellent book with the above title. In it they argue that no truly rational constitutional designer would ever prefer "federalism," defined as the constitutional allocation of some measure of meaningful autonomy with regard to something of relative significance (i.e., it has to be something more substantial than the right to select the state motto or state song), as against encouraging those in charge of any political system to choose "decentralization" in the making and implementation of policy whenever feasible. Only the former is a legal requirement; the latter is political sagacity. So why do we have "federal" countries (in the specifically legalistic sense of the term)? The answer is that given societies may be sufficiently divided, along identity lines of, say, ethnicity, religion, or language--or perhaps control of certain natural resources, such as oil or diamonds, etc.--that negotiating units can credibly threaten to go it alone if they are not given sufficient autonomy as part of the constitutional deal.

I think their analysis is clearly correct. One of the things that's so interesting about it is that it forced me to reflect on the extent to which the United States Constitution, usually described as "federal," in fact complies with their essential criterion of textually specific assignment of autonomy rights to sub-national units or, as a complement, designs institutions that can plausibly be described as ways of maintaining the federalism bargain. And the answer is that there are few such rights set out in the Constitution. I have come up with the following:

1) the right, guaranteed in Article IV, that states consent to their own division or joinder with another state. Thus, however obviously sensible it would be to join North Dakota and South Dakota together in "Dakota," that can't be done without the consent of each of the states (as well as Congress), and, of course, one cannot imagine circumstances where the Dakotas would decide that having two senators is better than the present four;

2) the right, guaranteed in Article V, to each state to veto any change in the (indefensable) allocation of equal voting power in the Senate;

3) the right, guaranteed in Article V, to vote for constitutional amendments by state (rather than, say, by population in a national referendum);

4) the right, under the Second Amendment, to maintain a militia (which is not at all trivial, at least historically);

5) the right, under the 21st Amendment, to decide whether alcohol shall be prohibited or sold;

6) the right to have the electoral college, rather than a popular referendum, select the President, with whatever protection that is thought to give states qua states.

I think that's it, for what might be termed "hard-core" textually specified autonomy rights. Though one might read the original Constitution as protecting the rights of states to decide on their own electorate, that obviously doesn't obtain today, because of a whole host of amendments, including, of course, capacious readings of the Fourteenth Amendment. And the original selection of senators b state legislators, which might be viewed as a structural protection of state autonomy, was repealed almost 100 years ago, so that the modern Senate functions as an affirmative action cauldron for residents of small states rather than a plausible protector of something called "state autonomy." The 10th Amendment has no meaning that isn't read into it by judges with their own political views about what's best for America. It is, as both Marshall and Stone, suggested, otherwise a "tautology," telling us nothing whatsoever about the actual division of authority between national and state levels of government.

Feeley and Rubin correctly point out that the Supreme Court's current doctrine regarding federalism is an incoherent muddle. Almost everyone agrees with that description. But I want to make another point, which is that "federalism buffs" necessarily rely on judges basically to make up, on the basis of their own political views, the degree of constitutional protection for state autonomy, given the utter absence in the text of the Constitution of any plausible guidance to what is, and is not, protected against national control (especially given the expansion of national power during the New Deal, which even the conservative majority of the present Court seems disinclined to challenge). So it's judge-made law all the way. And "originalism" is of no practical help, inasmuch almost no one (besides Justice Thomas, some of the time) seems to believe that we should return to the "good old days" when states were left free to regulate "manufacture" (but not "commerce") or the particularities of their own labor systems (e.g., slavery or child labor). Nor do any contemporary federalism buffs of whom I'm aware wish to amend the Constitution to deprive the national government of the power to regulate, say, the environment (all those pesky externalities should states be left free), or practically anything else of genuine importance.

Again, neither Feeley & Rubin nor I oppose "decentralization" or "subsidiarity" when it makes good political and economic sense. What they demonstrate, though, is both that we have moved far away from anything that can seriously be described as a "federal' system and that we are far better off for it, since there's really nothing to be said for federalism in the absence of the cleavages about political identity that lead us, with whatever relucatance, to allow particular subunits to have their own official churches, different local languages of government, and the like.

In any event, it's a book very much worth reading. They also note, for example, that "federalism" has precious little to do with "local government" inasmuch as many state legislatures disdain large cities and wish to limit "home rule" as much as possible. The Texas state legislature is considering a bill sponsored by a San Antonio Republican that would force Austin to elect members of the city council in single-member districts. One may or may not think this is a good idea. But it's passing strange for anyone who believes in the Sandra Day O'Connor argument that federalism has something to do with "local control" to believe that the state legislature should make the decision instead of Austin. And so on.....

Full post as published by Balkinization on April 11, 2009 (boomark / email).