Historically, federalism has often meant conservative states asserting their sovereignty in the face of the federal government—most damningly, in the bad old days of Jim Crow. But that traditional understanding of state power no longer matches the country’s political reality.
Think of the states advancing causes like gay marriage (12 and counting) or the legalization of marijuana (18, including those allowing medical marijuana); consider the benefits of decentralization for a mostly African American city like Atlanta, or a city with lots of gay voters like San Francisco, or a state like California or Texas where Hispanics will soon be the majority. In these places, minorities can act for themselves rather than look to the courts for solace.
The vision for a “new federalism” comes from a small group of young Yale Law School professors. Heather Gerken was the first to point out that racial and other minorities—the groups that progressives worry about most—are actually thriving at the state and local levels. Her colleague Cristina Rodríguez has argued that in the case of gay marriage, this dynamic may well lead the country on “a march to a single, national principle” of acceptance.
The new federalism also takes into account a changed policy landscape: today, governors wield the most power not by separating themselves from federal law, but by making it work to their advantage—essentially, by serving as under-czars of the federal empire. Take health care: the Republican governors who are refusing to implement the state exchanges mandated by the Affordable Care Act are giving up the chance to improve the system, and to make it work for their constituents.
Abbe R. Gluck, another member of the Yale cadre, argues that in trying to derail the progress of the federal law, the governors who have snubbed the health-care exchanges are fighting “a battle already lost.” It’s a counterintuitive new way for both parties to think about states’ rights: the best means of advancing them may be the shaping of federal law.
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