Ah, Federalism…

One of this country’s ongoing struggles has been with the concept of federalism. Which rules should be nationally-imposed, and which should be left to those “laboratories of democracy” lionized by former Supreme Court Justice Brandeis?

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of government fragmentation.

Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. Questions about who is entitled to fundamental rights–and what those rights are–isn’t one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully.

The application of the Bill of Rights to state and local governments was meant to establish a floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Over the 200+ years of American statehood, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature.

As the Commission’s website explains,

Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called “the backbone of American commerce.”

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  Last March, Talking Points Memo addressed the disastrous results of Trump’s decision to leave COVID response to the states.

From the very start of the Pandemic in the first weeks of 2020 the Trump administration consistently sought to disclaim responsibility for things that would be genuinely difficult and could have challenging or bad outcomes. Push the tough tasks on to others and if it goes badly blame them. This frequently went to absurd lengths as when the White House insisted that states short on ventilators at the peak of the spring surge should have known to purchase them in advance of the pandemic. Over the course of the year Trump spun up an alternative reality in which the US was somehow still operating under the Articles of Confederation in which individual states were responsible for things that have been viewed as inherently federal responsibilities for decades or centuries.

It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?” (Someone needs to tell Indiana Senator Braun that interracial marriage is not one of those…).

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms?

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights, not so much…


  1. This is the same discussion playing out on an international scale. Should we have a global order versus nation-states? What would that look like?

    Considering the global issues facing our “leaders,” why can’t we have universal rights beyond borders like healthcare. One healthcare system that covers everyone. Global media, etc.

    Uniform income and a monetary system where we can travel without any conversion issues.

    It’s coming one way or another. I prefer our leaders approach it as a collaborative process versus competition. Let the people decide what’s best after everyone is educated on the facts.

    Imagine that?

  2. Mankind need not smash its governments and societies to smithereens in order to have change. Evolution need not be violent. What we are witnessing today is manmade chaos with a goal of blind less self destruction, and until we recognize that and confront it in ourselves, we are doomed.

  3. As Sheila stated; “I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights, not so much…”

    Amendment IX, Rights retained by the people; “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Amendment X, Powers retained by the states and the people; “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Commerce, as referred to by Sheila and a uniform monetary system which doesn’t require conversion as referred to by Todd are governed federally as they should be. Yesterday’s “Vent” by Sheila regarding meeting the needs of the handicapped ARE governed federally by the Americans with Disabilities Act but ignored in fact by localities within states which also have laws to provide those needs. I believe it wasn’t until the 1950s that it was required by the federal government that all automatic traffic signals in all states be universally designed to protect those who are color blind. The federal government can provide and demand that protection for the color blind in this nation but cannot stop the killing of our children in schools or those who are at prayer in their churches, temples and synagogues. Just as the 1st Amendment protection from Congress “establishment of religion” has been bastardized to allow the federal and state governments to enact laws which establishes religious rule of the people. And the total lack of understanding of the 2nd Amendment term “A well regulated Militia,…” has been turned over the the NRA to regulate and supply military arms to anyone with the cash or credit or debit card to purchase them.

    “Ah, Federalism…” is fast becoming a thing of the past regarding our fundamental rights as Americans. The Golden Rule is now “He who has the gold, rules.” and is being upheld at this time by all three branches of our government. It is the collection of White Nationalist MAGA party States who have taken over the power of the majority of the American people nationally by using fear tactics to maintain and control the elections by the people within their borders and maintain their control from their minority position at the federal level.

    “I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights, not so much…”

  4. I read somewhere years ago that a division of our state department works with newly formed nations (the result of gaining independence or balkanization) to develop the governance and institutions necessary to support democracy. In NO case do they ever use the US Constitution as the model, and especially the provisions regarding an electoral college and a bicameral parliament with one being a senate with two representatives from each province.

    So that leaves me curious as to how other democratic republics operate in the world…I’m uninformed on that topic. The far right has been campaigning for years to call a constitutional convention to make our constitution even less democratic. Perhaps it’s time to embrace this call but have it truly represent the people and not the traditional power of 50 state governments.

  5. During the Civil War, General Lee was screaming for reinforcements in Virginia. President Davis “ordered” several states to send militias to Lee’s aid. Some did, but others – MS and AL – I think refused claiming they needed them at home to defend against the Yankee invasion. Yeah. Federalism.

    What else should we expect from backward-thinking ideologues from the Federalist Society who were stupidly appointed to the Supreme Court? OF COURSE they want to impose their philosophy. OF COURSE they are champions of states rights. The Bush presidents were dupes that followed Reagan’s disastrous appointment of Scalia. Sidebar: It should be noted that Ted Cruz clerked for Scalia. Need we say more about that. “W” appointed Roberts right to the front row. He also dug up Alito from some legal trash heap. Trump did the rest.

    This is what happens when Republicans are in charge of critical things: They screw it up. McConnell’s “jiggery pokery” of preventing President Obama to appoint a Justice is typical of how these jackasses have been operating for decades.

    Why on Earth would anyone in their right mind vote for a Republican for ANY office, Federal OR State?

  6. We thought we solved the problem with the 14th Amendment. It would seem that when we think we have a solution, what we are truly creating is just an obstacle. One to be overcome in a variety of ways. The last guy’s method was just to ignore anything he didn’t like. Since he suffered no ill from the consequences, we can assume that will be the next guy’s method as well.

  7. “I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states.”

    Presume this means decades of “redlining”?

    Presume this means that a poor person who steals a loaf of bread goes to jail and a corporate mogul who causes the death of thousands by pushing killer drugs pays a fine?

    Justice and fairness are not that simple…

  8. Lester: redlining has nothing to do with zoning. It was actually was a national problem ( I strongly recommend Rothstein’s book “The Color of Law.”) of financial regulation.

  9. Before the EU, Europe had nothing but their version of states rights. The EU was their federalism. Then brexit. Now economic chaos once again.

    But conservative are happy that they made progress back into hunting gathering.

  10. “The only thing that can stop a bad politician with a vote is a good citizen with a vote.” – Jocelyn Benson, Michigan secretary of state.

    Had to share this quote.

    Vernon: Well put. I’m voting early this Wednesday in SC in the Democratic primary. Do you think there is ever a good reason for “cross-over ” voting? We don’t register Dem or Rep in SC, but many people talk about voting in the “other” primary to mess with the outcome. Does that ever work except maybe in local elections? Thanks

  11. This is a version of he struggle between individual rights and community that Professor Kennedy spoke about at the Unitarian Universalist Commnity Church of Hendricks County about 2 years ago, another way of looking at the states’ rights issue.

  12. Why on Earth would anyone in their right mind vote for a Republican for ANY office, Federal OR State? Thank you Mr. Turner.

    That IS the ultimate question. I’d add county and local to it. The ACFP (American Christian Fascist Party, disguised as the Republican Party), is grooming them an getting them elected early on, at all levels, in all elected positions to get them into the pipeline, and it is working. Democrats have not figured out how to do that. I don’t particularly like Democrats, but when there are only two choices, evil vs a flawed, less than perfect party and it is a two-party system (that’s another problem), there is only one choice, blue no matter who, and at any and all levels.

  13. Sheila,

    Thanks for the redlining correction – sorry about that. Believe there might be a few instances of manipulating zoning for the building of the interstate highway system that only seem to rip apart historically minority/poor communities? And, no doubt a few others where wealthy donor developers were given advantage?

    Kathy M. – this is done all the time. You might be amazed at what an extreme candidate with a computer and many followers who will do whatever she says, can do to hijack the supposedly wonderful rank choice voting.

  14. I have lain awake at night thinking not of federalism and the interplay between states and the federal government per se but rather what criteria we employ in making the distinction and how subjective judgment becomes involved in the legislative choice of such criteria.

    Thus zoning as a local matter? Not when the feds establish no-build zones next to some inland lakes, like Lake Monroe in Monroe County, for instance. Other examples include EPA and other agencies’ “intrusions” into what some argue are “states’ rights” areas, like grazing rights asserted by angry ranchers versus the Department of the Interior. Based on what? Subjective and hazy areas of criteria for decision open to endless and expensive litigation on whether judicial and legislative treatment of the issue(s) involved are constitutional – or what?

    Can we dream up a “case or controversy” that will wend its way to the Supreme Court for a definitive holding on the criteria employed in distinguishing such legislatve choice or will such court (as it often does) merely label such issue to be “political” and a separation of powers matter and pass, leaving us in the litiguous mire of the Ninth and Tenth Amendments? I fear the latter unless we redefine the separation of powers doctrine in a constitutional convention, an unlikely conclave.

  15. Gerald and all – not now or in the conceivable future, should we consider having a “constitutional convention”. ALEC, the Federalist Society, etc. have the changes they want already drafted and their followers control a significant majority of state legislatures.

    Watch what you dream of….

  16. Thanks Sheila for a very good piece. While many criminal justice laws are best managed at the state and local level – it is not all. Marijuana is now legal in some form in 37 states – that is more states than passed the Equal Right Amendment back in the day.

  17. Is it safe to say that it is federalism that allows one, or two, federal senators to block reasonable changes to voting and other widely popular
    rights, to block sensible gun rights reform? Due to the filibuster, which is not in the constitution, these whores of the oligarchs earn their pay,
    and their stay in congress, directly to those oligarchs.

  18. Kathy M, crossover voting may have worked in GA
    Several commentirs on a post on fb indicated that is what they did to oust tRump’s choices. If true, crossover voting worked there.

  19. This is an excellent post. In playing devils advocate, where a precedent is overturned, governance in the popular sense calls for a national law. If we look at the minimums that Roe vs Wade brought forth, a popular consciousness might bring all sides to pass an overriding national law to protect women when they are assaulted or their life is in danger due to a pregnancy plus a period of time that allows them a choice. Also states may expand legalities upon this law written into it.

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