Federalism Won't Work
July 3, 2012
With Responses From
Jul 3, 2012
5 Min read time
We must dispense with our outdated conception of governance.
Daniel Richman’s thoughtful article is, at one level, difficult to disagree with. Of course national authorities should coordinate effectively with state and local ones in the fight against terrorism. The rivalry he documents between these groups, like the rivalry between the Army and the Navy, or between departments of political science and sociology at a university, seems like one of those indefensible inefficiencies that pullulate from the complex, and necessarily specialized structure of large organizations. Such rivalries are ubiquitous, and perhaps inevitable in a massive society like our own, but surely no one would attempt to defend them on theoretical grounds.
But there is one interorganizational rivalry that many public officials and academics staunchly defend.This is the rivalry between national and state authorities, generallyknown as federalism. According to federalist doctrine, the states areseparate sovereignties, not subordinate but equal to the nationalgovernment. The dynamic tension between the nation and its states issupposed to create a healthy variation in applicable public policies,while safeguarding our liberties against centralized oppression.Proponents claim that such a conception of American government wasintended by the Constitution’s Framers in 1789. This is certainlycontestable on historical grounds, as Samuel Beer and Jack Rakovehave pointed out, but federalism was at least a viable approach at atime when the United States was a rural, lightly administered countrywith an isolated location and a seemingly limitless frontier. It issimply inapplicable to the present-day United States, with its highlyintegrated national economy, it massive regulatory apparatus, and itsresponsibilities and vulnerabilities as the world’s dominantpolitical and military power. The continued support for federalism inthis modern context is little more than politicalnostalgia.
Academics don’t have to govern the country, sothey are free to indulge their sense of nostalgia if they choose. Butpublic officials, who don’t have this luxury, can’t afford to begenuine federalists. When they tout the virtues of this doctrine,they are being insincere. Republican politicians, for example, oftenuse federalist arguments as an excuse for opposing nationalregulatory programs, particularly those directed to protecting therights of minorities and securing social justice. One indication oftheir insincerity is how fast they flee from federalism when itinfringes upon their own policy initiatives. During their decade ofcongressional dominance, they have proposed or enacted massivefederalizations of criminal law and tort law; even welfare reform, asembodied in the Personal Responsibility and Work OpportunityReconciliation Act of 1996, involves extensive national supervisionof state programs. Now in control of both Congress and thepresidency, and faced with a genuine national-security crisis, theyhave responded with the heavy-handed centralism that Richmandescribes.
Richman is certainly correct to suggest that thisapproach is counterproductive, and that national-security agenciesshould develop more-cooperative relationships, particularly withlocal authorities. But his effort to link this proposal to the spiritof federalism is misplaced. The fragmentation of governmentencouraged by federalist rhetoric has led to inefficient duplicationof facilities and a lack of coordination at the national level. TheFBI was created as a partial solution to these problems, but withouta truly national approach, they have persisted and will continue todo so.
Moreover, federalism does not establish or encourage therespect for local authorities that Richman urges. It grants legalrights to states and declares, as a subsidiary premise, that localgovernments, as creatures of states, possess no legal status of theirown. A structure of this sort impedes the important relationshipbetween the national government and local governments, subjectingthese local governments to unnecessary state control. The problem isparticularly serious for America’s large cities, whose economies,social services, and security are of national concern but whichregularly find themselves constrained by rurally oriented stategovernments that are hostile to their interests. Faced with theseimpediments to a direct relationship with city governments, it is notsurprising that the national government has tried to do things on itsown. Federalism is not the solution to this problem but one of itsprincipal causes. If we want better coordination of anti-terroristactivities between the national government and the cities, we need toabandon our outmoded federalist rhetoric and develop a coherent,coordinated approach to the relationship between national and localgovernments.
But what about civil liberties, always at riskfrom security forces and under particular assault at the presenttime? Richman suggests that federalism provides greater protectionfor civil liberties because local regimes are more accountable todisparate constituencies. The idea of a national, coordinated policeforce certainly conjures up images of an oppressive securityapparatus that crushes individual liberty in its iron, bureaucraticgrasp. But state governments are unlikely champions of civilliberties. It was the governments of the Southern states, after all,that maintained apartheid for a century after the Civil War, thatexcluded African-Americans from voting, denied them basic socialservices, and tolerated or encouraged the systematic violence thatwas directed against them. The sensitivity to local communities thatRichman sees as a restraint on police abuses is a feature of theurban politics that federalism renders vulnerable, not the statepolitics that it protects.
To be sure, local police departmentshardly have unblemished civil rights records either, as recentexperience in places such as New York City, Los Angeles, andPhiladelphia clearly demonstrates. In fact, the worst abuses are noteven in these cities but in the one or two man police departmentsscattered across rural America, a situation that has become a stapleof popular culture and that is wonderfully documented in Melissa FayGreene’s Praying for Sheetrock. The fact is, no level of governmentcan be relied upon to exercise restraint on its own. The thing thatcurbs the tendency of people with guns and badges to infringe thepeople’s civil liberties is not the quasi-independence thatfederalism establishes, but supervision. Police behave themselveswhen they are supervised by well-trained, knowledgeable officials whoare in turn supervised by well-trained, knowledgeable officials, whoare, in their turn, accountable to elected representative andcivilian administrators or review boards. Federalism is an impedimentto this sort of supervision. By interposing state governments withlegal rights between the national government and the cities, itprecludesthe supervision of urban police forces by politically visiblenational authorities such as Congress, the Supreme Court and thefederal administrative agencies, while doing nothing to providesupervision of the FBI or other federalauthorities.
Richman’s call for coordination between national and local governments and his insistence that civil liberties must be protected in this process are both persuasive. They will not be achieved by encouraging federalism, however, but by dispensing with the outdated conception of governance that it embodies.
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July 03, 2012
5 Min read time