Federalism Is Dead, Long Live Federalism

A Yale law professor argues that America has moved past the relationship among states that the Framers envisioned––but that a new federalism is serving the country well in its stead.

Brian Snyder / Reuters

For Yale law professor Heather K. Gerken, the question of how Americans can coexist in relative peace and prosperity, despite their many differences, has a temping answer: “The tempting answer to this question is to invoke our father’s federalism, a vision of democracy in which everyone retreats to their comfortable red and blue enclaves.  Peace prevails because people never have to interact with one another.”

She argues that “we should not be tempted by this outdated view,” because “red and blue silos are not the products of a well-functioning democracy. Democracy requires us to work out our differences, not shelter ourselves from viewpoints we dislike.”

Besides, she continues, “ours is not your father’s federalism.” Her assessment of our present civic reality:

In our tightly integrated system, the states and federal government regulate shoulder-to-shoulder.  Sometimes they lean on one another, and sometimes they deliberately jostle one another. As a result, states are not sites where groups can shield themselves from national policy, national politics, or national norms. Instead, they are the sites where we battle over national policy, national politics and national norms.  National movements, be they red or blue, begin at the local and state level and move their way up.  

National actors depend on states and localities to carry out national policies, which means that they need buy-in from state and local officials to get things done.  

Think about the Obama administration’s negotiations with red states to bring them into the ACA or the Trump administration’s worry that sanctuary cities might not help carry out federal immigration policy.  This interdependence provides a healthy incentive for compromise.  President Trump may not need Democratic votes to push his agenda through in DC, but he’ll need the help of blue states like California and New York and Massachusetts if he wants to see his agenda carried out nationwide.

Today’s federalism also ensures that red and blue states are forced to interact. In our highly integrated economic and political system, states are always knocking into one another as one state’s policies affect citizens in another state.  When California passes climate-change regulation, Detroit carmakers are forced to manufacture more environmentally friendly cars for everyone lest they lose the California market. When Texas insists that school textbooks question evolution, school boards across the country find themselves purchasing textbooks that are considerably more conservative than their population.  These “spillovers” force people on different sides of the political aisle to talk to one another. Over time, federalism forces politicians on both sides of the aisle to do what they are supposed to do -- politick, find common ground, and negotiate a compromise that no one likes but everyone can tolerate.

She concluded that “our father’s federalism was a solution to the problem of democratic difference, but it was a solution that depended on enclaves and isolation. Today’s federalism offers a more attractive solution: connection and compromise. Our father’s federalism offered an easy out when people disagreed.  But today’s federalism? It gives us a better shot at a democracy that works as it should.”