Allow Me To Repeat Myself…

In the wake of the Court’s ruling in Dobbs, several pundits have approved of the decision as a “return to federalism.” Earlier this year, I posted about America’s experience with federalism, and obviously, that analysis bears repeating.

The issue, of course, is “Which rules should be nationally-imposed, and which should be left to more local “laboratories of democracy”? Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. But questions about who is entitled to fundamental human rights–and what those rights are–clearly isn’t one of them.

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the extreme federalism of 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 national fragmentation.

The application of the Bill of Rights to state and local governments was meant to establish a national 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.

Furthermore, modern technology and communication–and the needs of businesses serving a mobile population–have made uniformity imperative even for matters that were properly left to state and local governments in the 1800s.

As I’ve noted previously, 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. In that sense, it respected federalism.)

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.  Numerous health officials have addressed the disastrous results of Trump’s decision to leave COVID response to the states. 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?”

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? It is incomprehensible to me that anyone would choose to leave basic civil liberties up to the states–that, after all, was precisely the “federalism” that led to the civil war.

Certainly, America’s division of jurisdiction among local, state and federal levels of government is still useful–state and federal governments really have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, for example– but we need to recognize that many of our historic 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, as we have seen, it’s an invitation to misconduct.

As a practical matter, federal programs have made a mockery of  the increasingly awkward pretenses of state “sovereignty” where none really exists. Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the myriad other “strings” attached to federal funding that remind state-level agencies who’s really in charge.

If we ever get serious about actually governing again, we should take a hard look at these divisions of responsibility, and recognize that some matters are genuinely local, some require national action, and still others are planetary and must be addressed globally. Climate change is the most obvious.

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 and global threats, a phony and facile “respect for federalism” is both dishonest and suicidal.


  1. The need for federal regulation regarding environmental degradation is essential. After all, the acid rain that is killing the trees in New York’s Adirondack mountains, for instance, comes from the smokestacks in Indiana and the Midwest. Our own White River is responsible for 6% of the pollution in the dead zone in the Gulf of Mexico at the mouth of the Mississippi River. Polluted air and water does not respect state boundaries.

  2. Considering the four recent fuck-ups in Supreme Court decisions there should be no questions regarding “federalism” vs. states rights. There are girls and women in all fifty states and all U.S. Territories; many of them do get pregnant (the men involved in this medical condition are never considered when making laws) and for reasons which are not political or religious, their right to make decisions regarding this condition should be their own and not that of any level of government or religious faction. The dead and disabled victims of mass shootings, and singular shootings, are just as dead or disabled throughout all states and territories; there should be federal level laws to protect all citizen’s lives in our homes, on our streets, in church, schools and in public places of business. There are also LGBTQs throughout our entire nation and in the territories; political and religious interference has escalated beyond all reasonable humanitarian control. As for our voting rights; the Constitution was forced to add four specific Amendments to assure this right is protected nationally for all. Amendment IX, Rights retained by the people. Amendment XIV, Civil Rights. Amendment XV, Black suffrage. And Amendment XIX, Women’s suffrage. All were made necessary due to political and religious intrusion into our lives and attempts to suppress our rights to meet their personal standards of living. The anti-abortion and anti-LGBTQ issues has forced politicians and religion into our beds and into the bodies of girls and women – sans the boys and men who have a major part in pregnancies.

    Awarding states the ability to totally self-govern is based in White Nationalist attempt to move to southern “sovereignty commission” tactics which were carried out but basically hidden from the public early in the last century. I no longer feel I am living in America and have lost pride in being an American as Trump’s White Nationalist control appears to have no end in sight. It is heart breaking to watch the struggles of the true Americans, President Biden, Liz Cheney and the January 6th Committee, while some are suffering from the continuing Covid Pandemic disease, with their careers and their very lives at stake. The brave former Trump supporters who have come forward to swear to the truth of the full situation leading up to, the insurrection as it happened and that those conditions continuing today. BUT…THEY were the ones who brought about his control in the first place and helped maintain till caught in the investigation by the January 6th Committee. States should be rooting out those who participated who live within their boundaries; this is a federal issue to be addressed by state lawmakers who refuse to act.

  3. The 10th Amendment effectively states, lack of a Federal law, punts the issue to the States. The courts are in the business of ruling on laws, not creating a law. All the current SCt did was state that the prior SCt (1973) created a law (Roe) and thus overstepped its authority. The choices now are let the States create their own law or let the Congress create a Federal law. This choice applies not only to the current topic but also any topic not cuurrently defined by a Federal law. If you want the current topic to be a Federal law, contact your House Rep and Senator. The current SCt is no longer in the making law business. It rules on laws created by Congress . Like it or not, that is division of authority 101.

  4. No question in my mind that states and localities should determine speed limits on local roads. But we don’t live in a two-tier federalist system…it’s more like four or even five tiers, if you include Cities, Counties, Townships, Public school districts, airports, libraries, etc. And all these units of government seem to be constantly locked in a constant state of churn and conflict….and all of it litigated in courts by lawyers.

    This is why, as I’ve expressed before in comments, that American can’t build anything anymore, such as high-speed rail…because infrastructure costs 3 to 4 times more in this country, largely because of overlapping jurisdictions and because the rights of individuals/corporations allow them to tie up projects in courts for years…all it takes is money and lawyers.

    Indiana’s GQP-super-majority-run General Assembly may say it’s deeply federalist, but it only goes one way as evidenced by many laws passed in the last few years that usurp local authority and power at the city and county level. Bloomington was not allowed to ban the use of 1-use plastic grocery bags. Counties no longer have much say in how wetlands and stormwater are to be managed.

    Nothing short of a 2nd constitutional convention can fix any of this in a structural way, but if there were to be one, I believe the federalists have the upper hand, because a core number of red states are fully willing to split off into one or more separate countries. If they do, however, they will have condemned themselves to adherence to something like the Articles of Configuration and could collapse. Again.

  5. Sorry, Jan. What Roe did was affirm a woman’s right to privacy concerning her own body. One might think of that as being secure in her person. You might ask, “Where have I heard that before?” Try Amendment IV. Then go directly from there to Amendment IX. Pause there a moment to contemplate before proceeding to Amendment XIV.

  6. Peggy; thanks! How did the courts at any level take over control of the bodies of women only and the sex lives of all?

    James; thank you, too. I watched “An Inconvenient Truth” again on Sunday; produced in 2006, Al Gore talked about the dangers we would face in 50 to 60 years. He couldn’t foresee the acceleration of Global Warming in only 16 years to conditions we are faced with today. Conditions which cannot be reversed because they were not prevented despite warnings from scientists beginning long before Al Gore’s movie. We are self-destructing!

  7. We do have a group ensuring that states have “equal” laws. It is called ALEC. (The American Legislative Exchange Council is a nonprofit organization of conservative state legislators and private sector representatives who draft and share model legislation for distribution among state governments in the United States.) Part of the MAGA ecosystem.

    Of course, nothing like that exists for the few remaining sane states…

  8. The power and control issues of our oligarchs are causing these issues. It’s more a question of motive. Where the federal government should be in control, the oligarchs like Charles Koch, who controls most of the red states, have done everything he can to cut federal control so his governors and judges can rule over his interests.

    We can argue all day about what is right or wrong, but Americans must inform themselves about who/what is causing the problems and then take appropriate action.

    I am seeing more and more workers taking action across the globe to stop injustices by these oligarchs using governments to get their way. The workers are abandoning their unions, too, because they’ve sold out the workers.

    Citizens will have to fight on terms these oligarchs will respect, which is MONEY. Shut down their businesses. Refuse to buy their products. Stop transporting their coal, etc., etc.

    Voting for the next round of sycophantic politicians won’t fix the power imbalances. Cue in Lucy holding the football for Chuck…

  9. Todd:
    boycott,worked for the UFW,the chic filet,anti gay hiring,turned them around,via bad press.
    the pope appolgized for the indignities his church caused a whole people, now the right wing church,(which ever one u chooze) demands we,kneel to their god thru the court. they the rightwing church professed discust at shariah law, and muslims,now they have decided that we must submit to their theology,via the court..
    obviously,they have amassed power thru their donars. but do they discuss where every cent goes? thru the johnson act,can the gov demand a audit, if their paying to,play politics..

  10. Thank you, JoAnn and Peggy. So glad you ladies are on top of your knowledge of the Constitution.

    And thank you, James, for including the environment. (Although if we don’t address climate change, it won’t matter how pure the White River becomes.)

    And thank you, Sheila, for bringing this topic to our attention.

    I, too, have lost pride in being an American and shake my head at calling the witnesses at the hearings “brave and courageous.” Where was their courage when Trump was putting little brown kids in cages? Or when he took us out of the Paris Climate Accord? And how did any of those women who testified work for a man who might grab them by their pussies? Right now they are just trying to save their asses from prosecution by turning states evidence. And while I have respect for Liz Cheney’s role in this commission, she too supports the overturning of Roe and a whole bag of other GOP garbage.

    Sad, sad, sad. Getting through, one day at a time.

  11. Once upon a time I served as Director of Urban Affairs for the Greater Dallas Chamber of Commerce. I shared an office with a colleague whose focus was attracting major employers considering relocation and /or expansion to our Metroploitan economy. Major employers dive into public policy environment conducive to attracting and retaining workers. Managing diversity is pathway to prosperity. A final decision is often influenced by demonstrated evidence of sound progressive public policy that enhance quality of life for a proposed diverse workforce. The current debate in the Indiana General Assembly is very discouraging for major employers and medical professions considering Indiana for future location and career.

  12. Reading Joseph Ellis’ “American Dialogue, The Founders and Us” where he discusses at length the Confederation era before the Constitutional Convention was eye-opening. Please take the time to read the book. Understanding history in hindsight, with its many unintended consequences of political actions, should give us pause when doing the same things over and over and expecting a different result.
    Watching what has happened with the appointment of the “originalists” to the SCOTUS and reading the history of those original founders’ ever evolving ideas and philosophies make it abundantly clear that the rationale for the decisions is cherry-picking at best.

  13. Thanks, JD — I just ordered a copy of the book you recommended . Looking forward to the read.

  14. I am not a lawyer, nor do I play one on TV. Philosophically, “rights”, as mentioned in the Declaration of Independence, belong to people, NOT to governments. People are “endowed” with certain “unalienable Rights”.

    Properly functioning courts prevent governments from making laws that deprive citizens of their rights; they don’t hand the decision over to a bunch of yahoos in a state legislature to decide that all men are created equal, but some are more so (and women not so much).

    As for the GOP, there has long been a strand within the party yearning for the Articles of Confederation. Remember, “small government”, tax cuts (which by themselves shrink government), and restrictions on regulations all have one end goal – “Nobody can tell me what to do! I am rich and powerful!” – remember Sony Bono – he entered politics because the tyrants in city hall had an ordinance about the size of signs for his restaurant and he didn’t think it should apply to him.

    The rational people who worry about limiting government often don’t think of how interrelated and interconnected the world is now. Even highway laws. Insurance is governed on a state by state basis, but the companies operate in all (or most) states, so your rates, and their profits, depend upon national trends, adjusted by state commissions, but still responsible to national trends.

    In the old “cigarette wars”, smokers felt that once they exhaled, or their cigarettes went up in smoke, it was no longer their responsibility. The anti-maskers believe that once their spittle and exhaled micro-droplets leaves their body, well then it’s your problem.

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