Ah, federalism! In the abstract, “laboratories of democracy” and a component of those “checks and balances” the Founders established.
Two hundred plus years later, a mess.
Very few students came into my classes with an understanding of the term or the multiple and often confusing ways in which federalism operates in the 21st Century. (That confusion was clearly shared by the author of a recent Washington Post essay who didn’t seem to understand when state-level prosecutors like Bragg can charge violations of both state and federal laws in a single prosecution. In all fairness, however–as I so often told my students– it depends, and it’s complicated.)
Actually, in addition to gerrymandering, the Electoral College, the filibuster, and the number/ terms of Supreme Court Justices, it’s also past time to revisit and revise the divisions of authority between state and federal governments.
Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority. In recent years, however, we seem to have forgotten about the very negative consequences of government fragmentation that prompted the Founders to establish a strong central government.
Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, 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 (belated) 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.
The need for substantial national uniformity isn’t confined to civil liberties. 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; that body developed 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 had to be 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.
Commerce is hardly the only area where uniformity is desirable and/or necessary. 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. A lot of people died as a result of Trump’s decision to leave COVID response to the states.
I won’t even address the insanity of leaving gun laws to the states in a country as mobile as the U.S.
Then there’s the environment. ( Air and water don’t stay in Indiana.)
The Indiana Capital Chronicle recently reported on efforts by Indiana lawmakers to give the General Assembly power over decisions that are currently left to state agencies staffed with experts who implement state and federal environmental laws— a move that would put Hoosiers’ health and environment in jeopardy.
A sweeping, 54-page amendment was added last week to the administrative rulemaking bill, which additionally seeks to put lawmakers in charge of new pesticide regulations and prevent state environmental regulators from making stricter coal ash rules than federal ones.
Indiana’s legislators already believe they know more than doctors; now they think they’re experts in environmental science. Given their consistent subservience to the state’s utilities, passage of this bill would be a huge step backwards.
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?
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 guns, the environment or fundamental rights, not so much…