I used to begin my classes in Law and Public Policy with what I call the “constitutional architecture,” the structures of U.S. government. As I would tell students, the Founders had divided authority both vertically and horizontally–through Separation of Powers and Federalism.
Most graduate students were familiar with those terms. Undergraduates generally knew that we had three branches of government, although the term “Separation of Powers” was less familiar to them, but very few could define federalism–the division of jurisdiction between the federal government and the states. Both mechanisms were intended to provide “checks and balances”–to limit the power of the central government.
The world we inhabit is very different from the world that confronted the nation’s founders. We still need federalism–but it is past time to review and adjust the current divisions of authority among local, state and federal levels of government.
A number of those divisions are still useful and should be retained. State and federal governments have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, to choose a couple of examples, but other current assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, it’s an invitation to misconduct–an invitation that state-level lawmakers eagerly accept.
In a number of areas, there are awkward pretenses of state “sovereignty” where contemporary realities mean none really exists. (Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the similar “strings” attached to federal funding.)
At the other end of the spectrum, there are an increasing number of issues, including but certainly not limited to the threats posed by climate change and the pandemic, that must be addressed globally.
Then there are the increasing tensions created by legislators in red states who want to be free of the constraints imposed by the Bill of Rights.
The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until Donald Trump managed to pack the Supreme Court with rightwing ideologues–they have been forbidden to retract them.
There are multiple reasons to revisit the division of authority between the nation’s state and federal governments. I realize that any effort to do so would be met with alarm–much as we’ve seen with calls to eliminate the filibuster that currently prevents the Senate from actually governing. We humans are creatures of habit: we become accustomed to the world we have grown up with, and assume that the structures of whatever society we inhabit are just “the way it is.” (A great example: the people who argued against same-sex marriage by insisting that marriage “has always been between one man and one woman.” That’s demonstrably false. Even if you ignore biblical history, more than half of the world still recognizes plural marriage. But it was true within the confines of their limited experience.)
A recent guest essay in The New York Times pointed to the undeniably negative effect of our current federalism on public health.
Tennessee and North Carolina are both digging out from catastrophic flooding, while parts of Louisiana were flattened by Hurricane Ida, and most of New Orleans remains without electricity. Ida’s remnants also brought even more rain to areas of the South and beyond that were already dangerously waterlogged.
In the Utter Failure to Understand What “Pro-Life” Really Means tournament, normally a very close battle in the red states, Texas is currently uncontested: Its leaders just made it easier to carry a gun and harder to end an unwanted pregnancy in the same week.
Finally, in the Colossally Botched Medical Emergency competition, it’s neck and neck across the region as Republican governors double down on efforts to block mask and vaccine mandates, along with every other pandemic-mitigation attempt made by people who are not allergic to science.
The author points out that every single one of these disasters is a public health emergency that red state governors have worsened “in every way imaginable.” (A recent NBC poll confirmed that politics has played havoc with public health. It found 91 percent of Biden voters vaccinated opposed to 50 percent of Trump voters.)
Citizens’ health and safety– and the extent of their civil rights– should not depend upon their state of residence.