Con Law 1.3 – Federalism – State Powers


Why State Government

At the end of the last segment, I teed up our second sub-question on the topic of federalism. Why didn't the framers of the U.S. Constitution simply get rid of the states and give all power to the new government created by the constitution, the national government? And there are two kinds of answers. One is historical and the other is functional.

Historical Reasons

States were a necessity.

Historically, the states were a necessity. They already existed. They were the primary source of political power, as well as political identity in America. It was bad enough that the framers were arguably acting unlawfully in scrapping the articles of Confederation and starting over when their charge was to suggest amendments to the articles, to fix the various commercial problems that the nation was facing. And we may forget this part of the history today, because I think for most Americans, they identify more with the nation than they do with their individual state. But the opposite was true at the time the constitution was being drafted and debated. Getting rid of states was about as likely as getting rid of gravity.

Functional Reasons

(1) Preventing tyranny, (2) accountability and responsiveness, (3) local efficiency

There's a second kind of answer to this question and it's more functional. There are various so-called values of federalism that are conventionally invoked to justify a role for the states in the federal system. And there are a number of different values that scholars and judges debate. One example is this idea of tyranny prevention, that state governments can push back against the federal government if the federal government becomes tyrannical and oppresses the people. And the idea here is that two levels of government makes the rights of the people safer than just one.

There's also claims about political participation that states are closer to the people than the federal government in Washington D.C. and so there's more of an ability to participate at the state level. There's also the argument from accountability that it's easier for the population of a particular state to hold their state officials accountable than it is for them to hold the officials in Washington D.C. accountable because they're closer to the people and the people have a better idea of what they are up to.

There's also the value of responsiveness that if the state government doesn't give people the kinds of goods and services they want, they can vote with their feet and move to a sister state. It's a lot easier for Americans to move interstate than it is for them to leave the nation and take up residence in some other country. There's also an argument about the value of pluralism. The United States is a remarkably diverse, heterogeneous country, arguably the most diverse along lines of race and religion and culture and ethnicity and national origin and other dimensions of difference, and not having the federal government decide all issues for the nation as a whole leaves some room for different states to decide the same issue differently in a way that's more consistent with the values of the state population.

And like all of these arguments, whether value pluralism exists as a value that the states protect, and whether it's a good thing or not, it depends upon the issue and the time in history in which the debate is taking place. In addition, there's an argument that the states can serve as the so called laboratories of democracy, that they can experiment on a more local level with different ways of solving common problems without trying the experiment at the national level, in which case, if the experiment goes awry, then the harm will be more broadly shared.

And then finally there are local efficiency arguments. Just like Congress is often best situated to solve multi-state problems, collective action problems, while there are other problems whose nature and scope exists within a particular state, and the people who live there have more incentive to monitor government officials, more access to information, and so it may be more efficient for the state governments to be able to address those problems.

Way Forward

So these are all the values of federalism, and again, there's robust debates historically and today over whether a robust role for the states actually advances these values in general and in particular cases. Overall, both historically and functionally, the argument is that we would lose a lot by moving all power from the states to the national government, and so it's important to preserve space, a role for both.

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