Down and Out? Try Federalism

By Kevin D. Williamson

Tuesday, May 07, 2019

Trump got you down? Alexandria Ocasio-Cortez giving you the willies? Try federalism — now with 70 percent less authoritarianism.

To the uninitiated, conservatives sometimes sound — to put it plainly — bonkers. Your lefty friends are going on and on about free health care and making Jeff Bezos pay off their student loans, and conservatives are talking about . . . the 17th Amendment.

Conservatives do hate the 17th Amendment. That’s the one that instituted the direct election of senators, which basically turned the upper house into a puffed-up House of Representatives with a bit less accountability. Conservatives of a certain stripe will take every opportunity to remind you that our Constitution not does establish a democracy — a term many of the Founding Fathers abhorred — but a republic with some democratic processes. That isn’t hair-splitting; it’s a different thing.

Before the 17th Amendment, state legislatures had the ability to choose their U.S. senators as they saw fit. Some of them established popular elections within the state, others kept the decision entirely within the legislature. This created some fairly predictable problems that will be entirely familiar to those who know 19th-century history (bribery, graft, party-machine politics, etc.), which of course are not problems with this or that political policy but problems with all politics conducted by human beings. The important upside was that the states directly controlled one-half of the most powerful branch of the federal government.

The state legislatures also, under the plain language of the Constitution, have a great deal of discretion about how they choose presidential electors. In fact, the Constitution gives them something close to carte blanche: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” The electors met and voted for two people each, with very few restrictions except that “one at least shall not be an Inhabitant of the same State with themselves.” The guy with the most votes was president. (This procedure was changed by constitutional amendments.) That, too, invited various kinds of abuses and corruption, but it had the same upside: The state legislatures had enormous control over the choice of a president.

John Dean famously told Richard Nixon that there was a “cancer on the presidency,” but in 2019 the presidency is the cancer on American politics, and it has been for some time. Over the years, the presidency has taken on quasi-monarchical trappings as Congress — which is supposed to be supreme under our system — has abandoned its duties and left the ordinary business of lawmaking and governance to an increasingly opaque and unaccountable administrative state under the president. As the presidency has grown in power, the president has become the focus of our national politics and, to a distressing extent, of our national life, to the point where half of the country believes that there is an existential crisis every time its party is out of power in the White House.

The president represents, in theory, some 327 million Americans. Because there is so much lumped into the presidency, it is very difficult to keep presidents democratically accountable. Consider that, for the moment, purely as a technical issue. A member of the House of Representatives typically represents about 747,000 people, not 327 million. (Because of vagaries in the census and single-member states, there is some variation at the extremes: Montana has nearly 1 million in its lone House district, whereas Rhode Island has about 528,000 in its.) If you are one of 747,000, you have a better chance of making your voice heard than if you are one of 327 million. Even better, a member of the New York state legislature represents about 128,000. A member of the Nebraska state legislature represents about 38,000. A representative can get to know and understand a community of 38,000. He is not alien from them, a remote power in a remote place — he is their neighbor.

If the real power in this country rested where it should — with the state legislatures — the political scene would be radically different. A world in which most of the laws that affect your life, most of the taxes you pay, and most of your interactions with the state are overseen by a representative personally known to you is very different from the scene in Washington, that Roman triumph as imagined by P. T. Barnum. If the state legislatures had the sort of power over the Senate and the presidency that they were intended to, ordinary citizens would in practice have more access to political influence rather than less, even though it would be mediated by state-level officials. The direct election of senators creates the illusion of powerful participation, as would the direct election of presidents (and as does the quasi-direct presidential elections we have today). But in important ways, those elections leave people farther from the relevant centers of power — literally. More than half of all Americans have visited only ten states or fewer, and many of them will never set foot in Washington, D.C.

The directions power should go: down and out.

The centralization of power in Washington and in the presidency inevitably has made our politics more authoritarian, because a national policy almost always is a one-size-fits-all policy, and our politics ends up being a tribal conflict over the fact that the people of Hale Center, Texas, and the people of Trenton, N.J., are forced to live the same way in many regards, meaning that one mode of life must prevail and that the other must be subordinated. “If Congress won’t act, I will!” say certain presidents and presidential aspirants. Except often, not acting is exactly what Congress should do. Not every problem is a national problem. But presidents are national figures with national agendas and national ambitions. The presidency is a one-size-fits-all vehicle by its very nature, which is why it is supposed to be kept in a rather small box and limited to matters dealing with administration, emergencies, and foreign relations.

State legislatures have their problems, to be sure. What Washington has is something worse: barbarism, the might-makes-right, power-at-all-costs philosophy of life in the national capital. And that is what federalism, properly understood, helps to mitigate. Federalism is not just a way for Republicans in Washington to avoid having to talk about the icky “social issues.” It is a way for us to live together, decently, at peace and in liberty.