The Federalist Threat to Democracy

by Jeff Polet

One of the more tiresome tropes that has emerged over the last seven years is the phrase “a threat to our democracy.” It’s become a way of bypassing thinking, discussion, and complexity. All you have to do is declare something you don’t like as a “threat to our democracy” as you’ve shut off all further conversation.

What’s not permitted is to ask the alarmist what exactly our democracy is, what is the threat, and what is the nature of the threat. Nor are we permitted to ask to whom the word “our” refers, given that there tends to be some commonalities among those who make the claim. I’m not convinced we even have a democracy, except in some formal, procedural sense related to our competitive and relatively fair elections. Some might gainsay that point, but I see no reason to think that our elections are rigged, although I’ll grant they’re imperfect — but that’s because there’s no way to create a perfect system that accomplishes all your goals. The imperfections become evident in close, high-stakes elections.

That’s not really my point, however. I’m not going to adjudicate, in this space, the question as to whether America is, ever was, or was ever intended to be, a democracy. As a result, I don’t clutch my pearls every time I read someone suggest that it’s “under threat.” Those claims tell me a lot more about the person making them than they do our system of government itself.

I was reminded of this when I was reading this otherwise interesting essay by Darrell West, published last fall. In it, the author makes the remarkable claim that federalism is one of the central threats to our democracy.

But recently states have taken this a step farther entering a risky new phase that pits blue states against red ones and blue cities against red states, and threatens democracy as a whole. As opposed to tolerating policy experimentation by different jurisdictions, some leaders are seeking to impose their own policy views on other places. Taken to an extreme, this behavior likely would intensify conflict and escalate policy nullification on a broad scale.

I’ll deal with some of the details of his argument shortly, but for now, I want to note that whatever else is true of American federalism, it isn’t a threat to our democracy — it’s one of its central features. Years ago I had a colleague from England who was constantly knocking on my office door and inquiring about aspects of American politics he found strange. Because he wasn’t able to get his brain around the principle of federalism, he wasn’t able to grasp the complexity, and most interesting aspects, of American politics.

There are many different theories about what federalism is and what it entails, but the central problem it presents is the idea of “dual sovereignty.” Our idea of sovereignty goes back to the 16th century and the writings of the Frenchman Jean Bodin, who argued that “sovereignty” had some essential features, two of which were that it was “absolute” and it was “indivisible.” In other words, in a conflict between competing authorities, someone had to have the last word.

One of the central debates about our Constitution is whether it was created by the states or by “the American people” as a whole. My own view is that the preponderance of evidence is in favor of the first claim and against the second. Interested readers might want to consult Madison’s Federalist #39 for more detail. Keep in mind that the American colonies had been operating as independent sovereign entities (mostly under Royal Charters) for over 150 years by the time the Constitutional Convention rolled around. Perhaps the best analogy now is to think of contemporary nation-states and their efforts to form an international governing system. The member states will join these organizations out of self-interest, but will not sacrifice their sovereignty or self-determination in the process.

The American solution involved the concept of “dual sovereignty,” by which they attempted to create a system where power would be shared in some cases, but in all other instances not expressly provided for in the Constitution, authority would remain with the states, an idea marked in part in the language of the 10th Amendment. Critics of the Constitution regarded this arrangement as a logical impossibility.

It is the original structure and compromise of our Constitution, that upon which all other conflicts are grafted. Here’s my central point: to undo federalism would be to undo the Constitution itself. If, in fact, federalism is a threat to our democracy, then the Constitution is a threat to our democracy.

One purpose of a Constitutional structure is to contain, manage, and dissipate political conflict. Too often we pay attention to the first two elements without giving the third its due. Federalism has proven, for the most part, to be an effective way of dispersing political conflict by concentrating it into the states. Thus it came as a surprise when West claimed that some state policy makers were “imposing their view on other jurisdictions.”

The first example he gives is immigration. In order to get any grasp on America’s immigration debates one must first recall that the negative aspects of immigration fall disproportionately on different states. Illegal immigration across the southern borders affects the border states far more than it does northern states. Since immigration is largely a national policy, this means that the laws placed on border states are mostly out of their control, even if they have to deal with the consequences. It’s no surprise, therefore, that Southern governors would figure out a way to make non-border states aware of the social and economic costs associated with policies those states pass even though they have minimal stake in the outcome.

West also looks at policies concerning abortion, drug legalization, and gun control. I’m not convinced that these policy proposals extend as far beyond borders as West claims, but he does raise an interesting point related to Hamilton’s argument against the Anti-Federalists that their objections to the Constitution might apply to state governments as well, given their relationship to municipalities. West argues that:

Even within individual states, there are risks for governance and democracy. Increasingly, there is preemption between red states and blue cities whereby Republican-controlled legislatures are putting major restrictions on the ability of Democratically-controlled cities to spend money, set policy, and address social issues. These within-state conflicts are eroding the capacity of cities to innovate and undertake useful policy experiments. By restricting local prerogatives, state legislatures are upsetting the balance of power within their boundaries and relegating cities to purely administrative functions.

Setting aside his eye-rolling claim of a “risk to democracy,” I think he makes an interesting point here. Those of us who actually live in states, which is to say all of us, recognize that these are not monolithic entities. Here in Michigan there is a feel and culture to “Up North” that is very different than that which you will find in Lansing or Grand Rapids. Upstate New York is different than the city; southern Illinois is an alternative to Chicago; the politics of the Coachella Valley in California is very different than that of the Bay area.

But his argument eats its own tail. If state power tends to undo the prerogatives of local governments, then the same would be true of the federal government relative to the states. The logic of his argument is to elevate local autonomy at the expense of federal power.

Rather than protecting democracy through tolerant and variated approaches, the differential responses of states and localities could intensify regional conflict and weaken the glue that holds the country together. Our current political system may not survive the high level of conflict which results when states nullify laws from other jurisdictions and criminalize behavior that is legal elsewhere.

Any argument being made for more decentralization is one eagerly entertained in this space, but the author seems to want to have it both ways, leading to the conclusion that he’d like to eliminate the authority of the states altogether. It’s hard not to see that as a threat to our Constitutional system.

Discussion Questions:

1. Is it ok for states to declare something a crime that is licit in another state, or should all the states have identical criminal laws? What would be the downside and upside of either position?
2. Are the states simply administrative arms of the federal government, or do they retain governing authority?
3. What is the argument for continuing the experiment in federalism?
4. Was the idea of “dual sovereignties” doomed from the beginning?