States’ Rights? Depends on Where You Stand

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Thursday, January 8, 2004
When I served in Congress one of the most enduring public policy questions I wrestled with was the proper allocation of power among federal, state and local levels of government. But recently it’s taken a major twist. 

It used to be that you could count on conservatives to mount a staunch defense of states’ rights, while liberals depended on the federal government to promote their values. This state of affairs was the legacy both of Franklin Roosevelt’s New Deal, which consolidated decision-making over economic and social welfare matters in Washington, and of Lyndon Johnson’s Great Society, which did the same for civil rights and social programs like Medicare and federal aid to education. 

Yet everywhere you look these days, the sides have switched. Gay rights? Liberals are hoping that state courts and legislatures will advance the cause; conservatives are talking about an amendment to the U.S. Constitution declaring marriage a possibility only for a man and a woman. Securities regulation? Business interests now typically want to see the matter remain in federal hands; consumer advocates are reveling in the aggressive pursuit of wrongdoing by New York Attorney General Eliot Spitzer and a few of his colleagues in other states. Air pollution? The environmental ball is being carried by California and states in the Northeast at the moment, while those aligned with corporate America look for relief from the White House. 

In one form or another, we have been waging this argument for more than two centuries: How much can be mandated from Washington, and how much left to the states? Our basic operating guidelines, set forth in the Constitution, are somewhat vague on the subject. True, the Founders saw the need for a strong federal hand in a few cases– they didn’t want the states to declare war or coin their own money, for instance– but they were also quite open to the states forging ahead on their own in other spheres. As Thomas Jefferson put it, “Were we directed from Washington when to sow, and when to reap, we should soon want bread." 

You can draw a pretty direct line from Jefferson to the famous 1932 dissent by Supreme Court Justice Louis Brandeis, in which he laid out the case for states as the “laboratories of democracy.” In particular, he wrote, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Yet, as Adam Cohen recently noted in a New York Times column, this embrace by liberals of a leading role for the states was short-circuited under Roosevelt, and only now are liberals again emphasizing state action, while conservatives have gained a profound appreciation for all they can do when they control Congress and the White House. 

All of this might lead you to shake your head at the inconsistency of politicians. But I’d suggest there’s another way to view it: as an exercise in pragmatism. One of the striking features of our federal system is that it offers so many avenues for getting the results you want: in Congress or the White House or the Supreme Court, at the 50 state capitols, and, in many instances, even at city halls and county courthouses. When politicians or advocates find themselves stymied in one venue, they look around for another to achieve their objectives. In fact, I would argue that it’s a healthy sign that our system of allocating power among the various levels of our democracy provides flexibility, opportunity, and accountability. 

Having said this, it’s also worth pointing out that the long-term trend in our country has been toward more centralized power; the federal government is vastly stronger now than it was even a half-century ago. In part, the reasons for this are political: Many interests, regardless of their ideology or partisan leanings, find it far easier to get the ear of a relative few people in Washington than to find the plethora of sympathizers they need in the various states. At the same time, many members of the business community have been arguing over the past decade that, in an era of global competition, they can no longer afford to follow 50 different sets of tax laws, regulations or technical standards; it’s better, they say, to set the basic rules of the game in Washington and let everyone compete accordingly. Finally, national security issues often dominate the thinking of Americans, as is true today, and that is an area best handled by the federal government. 

These are powerful arguments. But so is the battle-cry of respecting a state’s ability to improve the quality of life for its own citizens by, say, imposing stricter air-quality standards than are required by federal law. So in the end, I have come to appreciate two things about our federal system. First, as long as our Republic endures, this particular tug-of-war will continue. No one can draw with certainty the line between federal and state or local responsibility, and issues continually arise which test policymakers’ convictions as to where that line belongs. And second, whether you want the states or the federal government to prevail may ultimately have less to do with your political philosophy, and more to do with your interest in finding the best way to get the practical result you want. 

(Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.)