The State of Our Federalism

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Federalism has been called "the oldest question of American constitutional law." And so it is. Federalism was the central question of our constitutional founding. It has been a constant theme of our politics ever since, and it has been a central, highly contentious question in every critical era in our history—the Civil War and Reconstruction; the Progressive Era; the New Deal; and the Civil Rights Era. We are now living through another critical period. The country is broke, and our political institutions seem incapable of finding solutions. And as always, federalism is playing a prominent role in a heated political debate.

You’ve heard the story line: an overbearing, out-of-touch, out-of-control government in Washington, D.C. has aggrandized itself and trampled state and local governments underfoot. To restore fiscal sanity and democratic government, we should restore federalism’s balance. We should respect the Tenth Amendment, return power to the states, and so bring government closer to the people. All of the Republican contenders for the presidency advocate this program, with varying degrees of enthusiasm.

I agree with their analysis and prescription—up to a point. Washington has indeed assumed far too much power over local affairs. In many policy areas, decentralization would improve our policies and our politics. I also agree that our problems have a potent constitutional dimension. And yet: I will try to persuade you that our federalism problem is a great deal more complicated. "Federalism" in the sense of decentralization and state authority is not just a solution. In many respects, it is also a problem and a cause of widely lamented institutional dysfunctions. Put differently: we actually have not too little but far too much federalism of the wrong kind—a federalism that makes government bigger, more irresponsible, and less accountable. We need less of that federalism, and more federalism of the right kind—a federalism that disciplines government at all levels and makes it more accountable and transparent. We will over the coming years re-negotiate our federalism bargain. But the central question is not, how much federalism? It is, what kind of federalism?

Michael Greve is the John G. Searle scholar at AEI.

 

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