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Our dysfunctional states

By Jack M. Balkin

"Federalism" is thought by many to be an important, and cherishable, part of the American system of government. I'm personally convinced by Malcolm Feeley and Ed Rubin that this is basically incorrect, but that's really the subject for another posting (and thread). Rather, let's assume (as is in fact the case) that much of American public policy is made in a decentralized fashion, quite independently of whether states have a guaranteed constitutional right of autonomy with regard to given issues (which is what "federalism," as distinguished from "decentralization," means). Can anyone who likes either "federalism' or "decentralization" be proud of the actual performance of our major states? The Economist has described California as "ungovernable." Can anyone looking at the current follies in New York (where it may actually become important that the New York Constitution, for undoubtedly interesting historical reasons, guarantees that legislative chambers shall remain unlocked save in times of emergency) or the recently concluded legislative sesssion in Texas, or the budgetary situation in Minnesota, really believe that these states are models of governance? Perhaps other states do serve as such models. I'd be intriguted, for example, to learn more about Nebraska, our one unicameral state, a model that maverick Gov. Jesse Ventura altogether sensibly suggested for his own state of Minnesota.

With regard to "ungovernable" states, I'd be interested to know, also, how much of the problem is traceable to state constitutions (an extremely important, but almost wholly ignored subject by elite law professors and political scientists) and how much to other kinds of pathologies.

If truth be known, I'm not sure what states or countries provide particularly inspiring model of both democratic and effective governance. There's a lot to be said for the upper-New England states (New Hampshire, Vermont, and Maine), but their relative success might be a function of their small size and population. It's still a completely open question whether Madison was correct in the 14th Federalist about being able to have a "Republican Form of Government" in an "extended republic." I may be outraged, on theoretical grounds, that these three states have representation in the Senate equal to California, Texas, and Florida, but it's probably fair to say that they have sent less than their share of showboating demagogues to the Senate. And, even if the weight given the New Hampshire primary is ludicrous, New Hampshirites are also inspiring in the seriousness with which they take their truly "active citizenship."

Internationally, Canada certainly lost its claim to inspiration when its Prime Minister behaved liked a dictator in refusing to prorogue Parliament last December (and then getting away with it). I have no idea if any of the Canadian provinces are more attractively governed than New York, California, Texas, Illinois, and Minnesota. There are always the Scandanavian countries, but I can't say I really keep up with Norwegian politics! Any illumination will be gratefully received.

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