Why has there been disagreement about the importance of federalism in the US Constitution?


Federalism is a complex term in American history and politics. The first Federalist Party, for instance, which broadly held sway for the first twenty five years after 1787, was based on Hamiltonian ideas of a powerful centre, and of a state funded in part by national debt. This was at odds with Jefferson’s vision of local ‘ward democracies’, populism, and the principle of open elections. Most people who call themselves federalist in the twenty first century would probably identify more with Jefferson than with Hamilton’s party.

This is in part because the term federal has become consonant with ‘confederate’. The latter word is unusable, however. This is firstly because of the existence between 1861 and 1865 of the Confederate States of America, and secondly because the Constitution was meant to replace what were perceived as failed ‘Articles of Confederation’.

Nevertheless, the word ‘Confederation’ is a better one to sum up what modern federalists seem to want. It implies a weak centre, distributing monies and plans for public goods, reallocating cash in the monetary union, organising defence, and resolving external difficulties with everything else up to States which enjoy a separate citizenship. When Governor of Massachusetts, and during his 2012 presidential campaign, Mitt Romney suggested that this model was the best one to allow for health coverage and educational provision in the USA.

That some of the writers of the Constitution understood this model is fairly clear from the existence of a swathe of clauses within the document which allowed for the development of the idea should future users of the constitution have wished it. The Federal Government in its original form, up to 1912, was funded by a tariff which in effect starved it of cash, for instance. Though the Constitution allowed for a national debt, there was no specific provision or authorisation for a national bank. The ninth and tenth amendments to the Constitution, passed by the same generation who wrote the document, implied that there were ‘enumerated’ powers which belonged to the Federal centre, and a large bloc of others which belonged to the states. It was also stated in the amendments that the people and states held particular powers exclusively. Originally, the Senators of the United States gathered in Washington were elected by their own State Legislatures and in effect dependent upon them for re-election, and the President of the US was subject to an Electoral College which emphasised the equality of all states. Until the fourteenth amendment—as disastrously revealed by the Dred Scott case—citizens of the US were such only by virtue of their citizenship of a State.

On the other hand, the Constitution cannot be represented as a document which was marbled through with devolution or subsidiarity. It was up to the United States, for instance, to oversee each state and guarantee a republican form of government; the USA, in its federal form, would control new territory and admit new states; the Congress as a whole built in the idea of popular majorities across states; and US law was and is the supreme law of the land. There is a great deal of evidence that the founders anticipated presidents chosen by Congress (upon deadlock of the electoral college) and the article V amendment procedure was and is controlled by Congress. Even the possibility that the States might call a constitutional convention by themselves under Article V was checked by the idea that the Congress had to recognise such a call first, and could set the rules on how to recognise it. There was no powerful ‘Council of Governors’, no State veto, and—despite Jefferson’s best efforts to get one up on stilts—no constitutionally validated mechanism of nullification or interposition.

I recite all this not to bore the reader with history but to make the point that one can argue for a solid core of ‘federal’ or ‘confederate’ principles within the Constitution, but that the argument must always be qualified by reference to the document. Many have over-reached, over the years. In recent decades, for instance, ‘new federalism’ has paralleled the movement of populism to the Republican Right, and away from the Democratic Party. What that means is that nowadays, the principles which relate to confederation, to a weaker centre and stronger states—but not municipalities—tend to be dearer to Republican mobs and television commentators than to Democratic ones. This is almost an exact reversal of the way things started off, and an interesting lesson in politics.

For most of their history as a party, which is very long, Democrats were Jeffersonian in their prejudices. They stood for the local and rural against the elite and central, a Country Party of nominal outsiders standing up to the rich Courtly centre. They also had a close relationship with slavery. As many African-Americans and social reformers in the North suspected, slavery and the Constitution could not stand much close contact with each other, let alone the declaration of independence. Segregation later on did a little better, but not much. So it makes sense that Democratic elites could, until the New Deal, find themselves agin the centre, especially when Republicans were associated with rich social elites and the downfall of the Confederacy.

However, the idea that Democrats were in favour of localities and municipalities just because of slavery and segregation on their own would be caricature. Instead, one should also remember that many Democrats were of ‘ethnic’, Irish, Eastern or Southern European heritage in the big cities. This created a pressure to strengthen machines, which typically distributed citizenship and jobs (critical in the absence of welfare) in the name of local democracy. Others, such as yeomen farmers of Scots, Northern Irish or Baptist stock, preferred county government to that of the far-off state or federal authorities. It was this ‘shadow’ constitution which upheld Democratic localism, and which resisted Whig and Republican schemes, typically funded by the centre or by the rich, to ‘improve’ the economy and modernise government. When Franklin Roosevelt responded to the Great Depression by attempting to bring electricity and hydroelectric power to the South, as several modern scholars have shown, he did so whilst turning a blind eye to racism, segregation and the ‘Southern settlement’. FDR’s coalition was largely one of strengthened cities and strengthened rural bosses, and only a few genuine social reformers within it sought to use federal power to really alter the system.

A few; but enough.  The old Democrat commitment to localism was broken up by the commitment of Harry Truman to the Cold War, and of Hubert Humphrey and Eleanor Roosevelt to human rights. It proceeded through the focus of Lyndon Johnson’s ambition as Senate Leader, and Earl Warren’s determined reforming as Chief Justice, to the point where, by 1960, Richard Nixon could contemplate a ‘southern strategy’ that, in embryo, embraced a ‘new federalism’.

The actual New Federalism was a strange beast, which Nixon first proclaimed in 1969 in a television address. Envisaging the reversal of forty years of federal consolidation, It involved ‘power, funds and responsibility’ being channelled from Washington to the States and people. The mechanism for this, in Nixon’s view, was primarily composed of the institution of block grants from federal funds which states could spend as they wished. Nixon also argued for administrative reform and a federal ‘light touch’ after the hard line of bodies like the Office for Economic Opportunity in the sixties. Welfare reform, which Nixon originally conceived of as way to free localities from federal regulations, was also initiated. However, the consequences did not run to plan, and Nixon left office with a stronger, more Keynesian federal government than had existed beforehand, though his housing reform plan was later to be the foundation for Paul Ryan’s 2012 scheme.

New Federalism, however, was also introduced at a moment of social and political crisis in the USA in which the power of the federal government had come to be allied to social reform in ways that upset the working and middle classes, themselves on the edge of what would become a relentless decline in disposable incomes and social mobility. The heady days of civil rights reform, for instance, were over by 1965. In their stead, divisive debates on busing, abortion, contraception, the flag, the Vietnam War and the security state, let alone feminism, arose. The ‘backlash’ of traditionalists, which ran like a seam through politics and erupted in 1976 with the rise of Ronald Reagan, embraced the New Federalism just as the Old South was somehow rehabilitated as a symbol of defiance and autonomy. As Jimmy Carter embraced market deregulation—thus undermining the old Democrat unions—he also embraced national standards and a kind of consumerist politics that made federal regulations ‘king’ in a way that they had not been before. Nixon and Reagan reaped the advantage.

New Federalism wasn’t all political, however. It also had roots in the complex world of legal philosophy. Between 1937 and 1995, the Supreme Court of the United States upheld the power of Congress to regulate the states via the commerce clause in every single instance in which the issue emerged. This, along with the virtual revolution in rights which the court drove from 1954 onwards, inevitably shocked some traditionalists. Scholars such as Robert Bork connected the uncomfortable, and in their view apocalyptic, social changes which they perceived as undermining the American social settlement with such an expansive, or at least facilitative court. They resurrected the thin legal justification of Louis Brandeis’ dissent in New State Ice v Liebmann that held that the states should be laboratories for political experiments, and they proclaimed the need for a new ‘strict’ construction of the Constitution, and therefore of the Court’s powers. Though strict constructionism is and was a legal nonsense—a seven article constitution based on ambiguous English words can no more furnish a clear and straightforward single meaning than a King James Bible can—it served as an intellectual cover for a general discontent with ‘Washington’ on which the four Governors who became president after 1976 ran, as well as for a general movement that could carry a consummate insider like George H.W.Bush into their midst. Embracing its principles allowed Republicans like Mitt Romney, or George W Bush, to simultaneously court liberals with health or education reform in their states whilst appealing to their ‘prairie fire’ Reagan coalition at large. In Bush’s case, as would almost certainly have been true of Romney, this also meant that they governed more or less in opposition to how they ran.

In 2015, at the time of writing, federalism is still an important feature of the US Constitution. It shows itself in the ability of some Governors and legislators to alter minimum wage schemes, change the death penalty, introduce or hold back healthcare rules, or offer tax breaks to corporations. It does matter where one is a citizen in the USA. New Federalism is increasingly a thing in retreat, though, for two reasons. Firstly, devolution to the States—a republican theme—was matched in the Clinton years by cooperation with the Cities, which were much more Democrat. The municipalities on their own more or less implemented the Kyoto protocol on global warming, for instance, and became vehicles by which Democrats reconnected with working people and the police. Co-operative federalism was much more likely to feature city-based regulation of guns, arguments for higher taxes and better housing, and immigration reform than state-based devolution was, and its mere existence helped to drain energy from right-wing calls for change. Secondly, Gary Hart—the largely unsung organising genius of the Democratic Party after 1972—helped push Democrats to a middle ground in which they functioned in a Whiggish way, as a party which argued for national improvements for local or individual gain. The two most significant Democrat reforms of the past twenty years, for instance—welfare reform in 1996 and healthcare reform in 2010-12—depended on a mixture of individual mandates, state participation, and federal facilitation rather than the sort of vast, top-down programmes with which the Johnson-Humphrey Administration would have been familiar. In recent years too, a final coda has been added by the decline of the US government’s ability to guarantee bonds, spend vast sums, and flood problems with cash. A diminishing pie has concentrated states on the Washington kitchen, rather than the State outlets for the dollar; and that, too, has defanged federalism. It remains to be seen whether it can be revived in 2016.

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