The Devil’s In The Details

We used to call this federalism.

I really do respect the research done by the Brookings Institution. Overall, I find their methodologies appropriate and their conclusions sound. But every once in a while, I see an “essay” that makes me wonder what the authors have been smoking. The linked article on “constitutional localism” falls into that category.

Specifically, we call for a new civic ethos or governing framework which we call Constitutional Localism, that will shift the greatest number of public decisions possible to the community level—albeit within a clear constitutional framework to protect the individual freedoms and rights won over the past 250 years.

We see the pursuit by Americans of varied lifestyles and cultural preferences as a healthy sign of American freedom and choice, not a destructive force. We need to rebuild public confidence in American democracy, not by insisting on a singular national answer to each problem, but by celebrating the ability of America’s varied communities to find solutions that work best for them. As we see it, the challenge confronting the nation is to find a way to permit this range of opinion and action to flourish while restoring a shared faith in the common democratic values and processes that define American self-government.

Where to start?

First of all–and most obvious–the framework they suggest is the legal framework we have–a significant, albeit diminishing, degree of state autonomy, constrained by the requirement that local laws not violate the Bill of Rights.

The fact that “localism” often doesn’t look very local is a function of 21st Century reality: the inter-related needs of national (and increasingly global) commerce; the ease with which citizens and criminals can cross state lines, the national nature of many threats we face–from medical epidemics to terrorist attacks to acid rain. Etc.

The challenge is to determine what sorts of rules are properly the purview of local lawmakers, and which need to be national in scope. Americans have engaged in arguments about this since the Articles of Confederation. In my state, Indiana, municipalities face the same issue–a longstanding debate about the state legislature’s refusal to allow meaningful home rule by cities and towns.

People of good will can–and will–argue about what political scientists call “devolution,” and what partisans dub “state’s rights.” Which rules should be left to the locals, and which must be made nationally or even globally? To what extent should citizens think of themselves as part of the broad American fabric, and to what extent members of various sub-constituencies? How much consistency is needed to create unum from our pluribus, and how much is too much?

There is a modern twist to this age-old debate, and it is disquieting.

I have blogged previously about The Big Sort and the growing urban/rural divide. Americans appear to be “sorting” ourselves into like-minded communities, geographical “bubbles” where we can live with people who think and act like us. It is part of the polarization that has kept government from working toward that elusive something called “the common good.” Do we really want to encourage cities to create various iterations of “people’s republics” while more rural areas establish enclaves ruled by “Christian Talibans”?

At what point does autonomy become separatism? Inquiring minds want to know…


  1. Example: Austin has , I guess they still do, a local law about cutting down heritage trees. Gov. Abbott got mad about that law because he said he couldn’t cut down a tree which was growing where he didn’t want it. I don’t know how it all turned out because it’s my opinion that thinking about him is bad for my health and sometimes I HAVE to think about him. You don’t want me to get started.

  2. People are moving into the cities and that trend will continue into the future. However, now they have choices. Our young people can live in conservative meccas like Indianapolis, Indiana, or head East or West. Based on growth and economic results, the West looks really good and so does Texas.

    When I hear the word, localism, my mind takes me more to the economic side of the community. For instance, our anchor institutions are a university, a hospital, and the collective school districts. Where do they purchase most of their supplies?

    Since they all serve food, why can’t they ban together to support locally owned farms, greenhouses, etc. versus buying processed foods from an Indy supplier?

    Have no clue what Brookings is advocating for with making laws local. In case they haven’t noticed, local lawmaking keeps getting trumped by states and federal governments. For all the states who legalized marijuana, now have to face AG Jeff Sessions who wants to eliminate their rights.

  3. I get real contrary about the Trump administration. I feel like objecting to them on general principles.

  4. Todd, there are cities and regions doing what you suggested. Areas of New York made a concerted effort to deal with local farmers. Food was dying in the field because supermarkets contracted to fly produce from California and wouldn’t sell locally grown food. That was many years ago. I wonder how it’s doing now.

  5. This could also be stated as, “The Devils In The Details”

    Consider the current Vice President Pence, former Governor of Indiana, who pushed through RFRA and his fully discriminatory anti-abortion laws at state level which he promised to make federal law. Consider the fact that it was proven that the majority of weapons used in crimes in Chicago, Illinois, had been purchased here in Indiana due to our lax gun laws. Reported nationally by President Obama. Sheila referred to our “growing urban/rural divide”. “Americans appear to be “sorting” ourselves into like-minded communities, geographical “bubbles” where we can live with people who think and act like us.” Isn’t this part of the problem with allowing the Electoral Collage to “appoint” our presidents? One which led to an unnecessary war we are not yet fully out of and now facing nuclear war. The states which require all members to vote for their states majority and party vote against their personal decision! Is that written into the Electoral College description in the Constitution or added on the state level?

    “How much consistency is needed to create unum from our pluribus, and how much is too much?” What we are suffering under nationally at this time is far too much “unum” of the Republican party with all of the power against “pluribus” in their hands creating the current oligarchy.

  6. Todd,

    “Have no clue what Brookings is advocating for with making laws local.”

    Definition of balkanize
    balkanized; balkanizing
    transitive verb
    1 : to break up (a region, a group, etc.) into smaller and often hostile units

    opposes the partition of Germany, and holds that the economic consequences of Balkanizing the country would be serious —Times Literary Supplement

    2 : divide, compartmentalize

    now pop culture has been balkanized; it is full of niches, with different groups watching and playing their own things —Richard Corliss

    — balkanization play \ˌbȯl-kə-nə-ˈzā-shən\ noun, often capitalized

    George Kennan, our premier diplomat during the time of our Cold War with the Soviet Union, predicted back then that the U.S. would eventually be BALKANIZED. He was an extremely bight man, but also a pessimist. Nevertheless, he knew what he was talking about.

  7. We Americans are blind to the extent that our BODY POLITIC has been infected by anti-democratic memes. My attempts to communicate this alarming fact here in the U.S. has been to no avail. However, I’m not without HOPE. It has been just the opposite with my communication to the rest of the world through It’s now gone viral world-wide according to the data provided to me daily by And now is expanding at an exponential rate.

    Fortunately, the Anti-Defamation League’s (ADL) ORGANIZED resistance to the truth is not effective outside the continental U.S.

  8. I remember first noticing in the 1950’s the difference between “the” United States of American, and “these” United States of America at political conventions from various speakers. Looking back, it was, as most issues on this topic, about race. Now the concept of subsidiarity is supported by the ALECs of this world who simply have found it so easy to make their preferred changes at the State and Local level.
    If we are one country, and we are, there are just way too many levels of government. In Allen county Indiana, we have two complete and overlapping levels of Metropolitan Government, City and County, plus a few overlapping townships and a few small cities. My point has always been that if we would look back at first establishing an efficient and democratic local government, it would not include all these levels.
    So there is that…………………………

  9. I believe that, in the long run, our connectivity will overwhelm our tribal tendencies. We are now connected to people with whom we share interests worldwide. The children are much better at connecting than we are and it will make a huge difference by the time their children are in charge.

  10. Mississippi is the pattern for this. If you want local rule, there is your pattern.

  11. My observation on whether a subject should be decided at the local, state or federal level is it depends on what the subject matter is and who is in control.

    In Indiana we have seen the gop demand that the federal government not interfere with “our” decisions and power, yet those same gop members have consistently ruled against cities and counties having the power to make their own rules about certain subjects.

    I do not recall any Dems in leadership fighting against local cities and counties having the right to make choices for their communities. It is always the gop that demands they have the right to make the rules and change their rules when it is something that they favor.

    This same scenario most likely happens in other gop ruled states. The gop is more than willing to change their stance at the drop of a hat.

    My major concern is that I believe every citizen in this country should have a right to the same health insurance no matter how old they are or where they live. This should be a basic “right” in our country and should not be left up to the states receiving block grants. Block grants have historically been abused and used to pump up the general fund, rather than used for the purposes they are granted for.

  12. Problems such as epidemics do not belong to definition by county, municipal or state lines, nor does enforcement of our rights as citizens under the Bill of Rights (rights as federal citizens) belong to some county commissioner or state governor. I recall that our constitutional law professor told us that we are both state and federal citizens at the same time, but that what was covered by one was sometimes exclusive of the other (e.g., police powers) or was sometimes the same or some variation thereof.
    The Tenth Amendment states’ rights bone Madison threw to those who still liked that feature of the supplanted Articles of Confederation didn’t help. We have been arguing ever since over who has jurisdiction over what as a result (e.g., Pence’s religious adventures versus First Amendment federal rights of Hoosier citizens).
    I see interpretation of the Constitution as a present day exercise. When the Constitution became the organic law of the land accompanied by the Bill of Rights two years later, we had perhaps 4 million people stretched along our eastern seaboard. Now we have some 320 million people (more or less) stretching from sea to shining sea. There have been vast changes in technology, commerce, communications etc. since. The Constitution does not mention jet planes and Facebook, so we have those and similar innovations and political and economic structures with which to contend in interpretation of an 18th century document.
    Given my view of how the Constitution should be interpreted as of today, I come down generally on the side of our federal rights as citizens over our state’s rights as citizens where a choice must be made. It seems to me that the world and our country are smaller due to improvements in communication and travel, and our interpretation should be cognizant of this (and many other such innovative changes). However, I do think there is a place on the spectrum of who has jurisdiction over what in the jockeying for power between local and larger jurisdictions, though sometimes both can claim control (e.g., zoning, clearly local, but becoming federal if racially drawn). So the brawl goes on as we dice and slice jurisdictions to fit the political motif of the day, and it’s unlikely to end so long as the courts are open for business. So, home rule? Sure, but whose home?

  13. The term Local Constitutionality is unfamiliar to me. I think it might be a “pick–up” nomer for what was called the Principle of Subsidiarity. John Courtny Murray, in his much discussed. book of the ’60s, We Hold These Truths , invented or popularized “Principle of Solidarity.” The idea was to let the group nearest the seat of the problem handle the fix, and was proposed to be a gospel value. If a neighborhood group could accomplish what was needed, the problem was solved. If it took a municipal group to effect a satisfactory solution, fine. If a State group could do what a less funded local group could not, it was the vehicle. Perhaps the problem was so serious and complicated that it might take national (or international intercession.

    The word subsidiarity has been thrown around by Catholic sociologists a great deal ever since CourtneyMurray’s book. That book and its consequential discussion probably encouraged many to follow the example of Dorothy Day.

    In the five years since Pope Francis’ election there has been a surge toward serving all categories of needy people, whenever and wherever they are to be found, even at the bottom of the barrel.

    I propose that Local Constitutionality might refer to Subsididiarity adjoined with the care that it takes to make the local or State laws agree with the State and federal Constitutions. I am mindful that the time for serious study and action regarding subsidiarity has come.

  14. “Constitutional Localism” sounds like a different name for State’s Rights. Certainly, if Carmel decides to utilize roundabouts in lieu of stop signs or stop lights to move traffic – fine and dandy. I would suggest the State of Indiana should have jurisdiction into the requirements of a roundabouts such as, intersections with state or federal highways, use of a signage, lane width, etc.

    The Mythical County of Hooterville should not have the right to allow factory farms to dump manure onto the land and into rivers and streams.

  15. ” Principle of Subsidiarity. John Courtny Murray, in his much discussed. book of the ’60s, We Hold These Truths , invented or popularized “Principle of Solidarity.” The concept is of much more ancient teachings. Murray was a domestic CIA tool. That solidarity movement began, I think, in Germany and to some extent, Poland. Our last bout with local control wound up in Todd’s soon to be village, with firemen and policemen controlling City Clowncil, and jiggering union contracts into one way looting expeditions and then voting themselves outsized packages of pay and benefits….similar then to what happened to Muncie Community Schools….Worse in Gary, IN where local control (and theft) is most interesting and demonstrates the future of strict local control.

  16. I have been in all of the 48 contiguous states and marveled at our geographic diversity and civic unity. I just haven’t discovered much evidence that the problems of one state that lend themselves to governmental solutions vary significantly from any other. My conclusion is that states rights is more like gerrymandering. It’s an opportunity to carve up the country into well behaved city states that reliably support local oligarchs as compared to the well known national ones.

    To me poor government often manifests as solutions in search of problems and that seems to me to be the prime motive of states rights. Here’s a solution, now what problem can we make up that will make it necessary.

    That and of course the perennial favorite: build me a stadium or I will move my team to another city more willing to lavish tax dollars on me.

  17. States are unitary political systems. U.S. Government federal. In the former power flows down from the top. In the latter powers flow from the states that granted powers to it in the Constitution and can reclaim them by reserved local authority in Constitution or a new Constitution . Feds never usurped state and local control. The Civil War and Great Depression resulted in states ceding authority to the U.S. government to deal with problems that overwhelmed them. Boldness on the part of states could legitimately reestablish authority and responsibility in many realms.

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