Why Federalism Should Die

It's time for the U.S. to give up on this whole federalism obsession. There was a time when this division of power made sense. That time was two hundred years ago, back when "state" was still an approximate synonym for "nation," and it seemed a striking possibility that one could assemble a larger polity out of smaller units in such a way that the whole held together but was blocked from tyranny by the vigilance of those units. With the hindsight of history, it's possible to see that the experiemnt has more or less succeeded: today we live in a coherent nation, one that has hardly tumbled into the sort of absolutist tyranny that seems to keep popping up all across the globe. It's got problems left and right, sure, big problems, but those problems do not include a despotic central government which rules with an iron fist and tramples on the populace.

Or rather, to whatever limited extent our national government does take this form, strengthing the hand of the states won't do a blooming thing to fix the situation, and might just make it worse. Every time in American history that states have stood up and asserted their perogatives against the nation, they've been profoundly in the wrong, and it's been a damn good thing that they were put back in their place. The Civil War was a fairly nice rebuke to the claim that states, no matter how evil their cause, could just walk away from the nation. And the initiatives of the 60s, all those integrations carried out by the jack-booted thugs of the National Guard, put to rest, I should hope, any belief that the states should be free to set their own social policy. Give them half a chance and look what they go do. State governments have a pretty awful record when it comes to sticking up for the human rights of their inhabitants against the heavy hand of the feds; it's more often the state government whose heavy hand holds the mace and flail of injustice.

Our current system is a ridiculous gerrymandering, in which reasonable attempts to move towards Washington those decisions which really ought to get made in Washington have to tiptoe carefully around the Talmudically-read words of the Constitution. The Interstate Commerce Clause is an awful hook on which to hang criminal statutes, but there they must be hung, because consistent justice is a good thing and there's no better way of getting RICO onto the books. Handing out federal highway funds is a ridiculous carrot to use in getting states to have some semblance of order in setting drinking ages and speed limits, but one is restricted to working with the tools at hand. Except, that is, where those tools are found to infringe on the sovreign power of the states. So you can't sue a state for violating the Americans with Disabilities Act in federal court, because the federal government wasn't empowered with those powers by the Constitution. But you can't sue a state for violating the ADA in state court, on precedent that goes back to the feudal legal principle that lords may not be sued in their own court. Whoops. Guess state governments don't need to worry about that pesky ADA.

Our states are a collection of minor tyrants, whose powers are strange and obscure, but wielded with a gloriously irrational petulance. Taxes, lotteries, definitions of incest, non-discrimination laws, criminal penalties: these are the ways in which states flex the odd and arbitrary assortment of muscles reserved to them. There is no good reason why Iowa and Vermont should set different standards for domestic partners, why New Jersey and Wyoming should have different speed limits, why California and New Mexico should set different sentencing standards for drug dealers, why Washington and New York should have such different tax policies. There was a reasonable claim, two hundred years ago, that the states were natural units, whose social and political differences deserved to be recognized and protected at the national level. Today, the states contain within themselves larger social and political variations than distinguish them, than have ever distinguished them. They express nothing, they stand for precious little other than thwarting the good the national government might do, and encouraging evils to spring up amidst the chaos.

Why does the US lag behind Europe in setting privacy standards? Gee, maybe because we left the job to the states, and they weren't all up to the task, and even the ones that were are just now figuring out that maybe they ought to be doing something. Why is the District of Columbia incapable of keeping the pet projects and boondoggles out of the budget? Gee, maybe because our representation is geographically based. Who can make sense out of the sales tax system in the age of e-commerce? Not me. THe real threats to liberty and freedom aren't coming from the federal government -- or even from the foreign agressors the feds (with help from their geographically-apportioned system of military bases and defense contracts) are supposed to be guarding us from. No, it's the corporations gathering data, the gated communities setting social policy, the bail bondsmen responding to the states' bounty systems by busting down doors, the disbarred lawyers and unlicenced brokers slipping through the cracks by skipping from state to state -- all consequences of the power vacuum created by the feudal enclaves carved out for the states. Where the states are given power. they use it at best for mildly helpful foolishness and at worst for outright outrages. It's time to end to end this madness and flip that language around. The powers not delegated to the several states by the Constitution, nor prohibited by it to the United States, are reserved to the United States, or to the people. Anyone who looks at the status of things in Washington these days, should be fairly well convinced that it does a fairly good job -- some might even say a remarkably excessive job -- of holding itself in check, never mind the states.