Heather Gerken’s Progressive Defense of Federalism

Yale Law Professor Heather Gerken, a prominent federalism scholar, has an interesting article in Democracy urging her fellow liberals to take a more favorable view of federalism:

Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think “federalism” is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism’s past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Much of Gerken’s argument is based on the simple but important point that groups that are relatively weak minorities at the national level often wield greater influence in state and local governments where they are a much higher proportion of the population. In these situations, political decentralization benefits minorities by shifting power to the level of government where they have more political clout.

This will not come as news to students of federalism in countries outside the US. Many federal systems were established in the first place precisely because some ethnic groups that are minorities at the national level are majorities in a province or state. Federalism therefore protects them against domination by the national majority. Canada, Switzerland, Spain, India, and many other federal systems are examples of this pattern.

In the United States, of course, this aspect of federalism has largely been ignored because we have had very few cases of states where a national minority was a majority within a single state. The Mormons in Utah are an important exception, but one that few federalism scholars have paid attention to. However, as Gerken points out, racial and other minorities have increasingly become majorities in some state and local governments. In others, they at least form a much larger proportion of the population than they do at the national level and therefore have greater power. This helps explain why such causes as gay rights have made much more progress at the state level than in Washington in recent years.

Gerken rightly emphasizes that political empowerment through federalism enables minorities to be active agents protecting their own interests, as opposed to comparatively passive recipients of federal largesse, where their fate is in the hands of the national majority or the federal courts. Unfortunately, she ignores a different way in which federalism empowers minorities: By enabling a diversity of policies to arise in different jurisdictions, minorities are able to “vote with their feet” for the jurisdiction that serves them best. For reasons I describe in this article, foot voting is often of even greater benefit to unpopular minority groups than others. A century ago, millions of African-Americans improved their lot by migrating from the South to northern jurisdictions that had less racist policies. Today, ironically, many northern blacks are moving to the South in part because southern states have fewer regulations that artificially impede employment and inflate housing prices.

Gerken’s argument would be stronger if she were more willing to question the conventional wisdom about the history of American federalism, which holds that decentralization has almost always been an enemy of minorities, while the federal government is usually their friend. There is no doubt that state governments have engaged in severe oppression of minorities throughout much of American history. But the same can be said of the federal government, which was guilty of such sins as the Fugitive Slave Act; federally imposed segregation in the armed forces, the federal civil service, and the District of Columbia; the expulsion of Native Americans from much of their land; and the brutal internment of over 100,000 Japanese-Americans during World War II.

In an era when racial minorities were widely hated and wielded little political power, extensive discrimination against them was probably inevitable, regardless of whether the political system was unitary or federal. At many points in American history, however, centralization would likely have made minorities worse off than federalism did. For example, a unitary policy on slavery in 1787 would probably have led to a nationwide law in its favor, since nearly all states were still slave states at that time. A unitary national policy on racial segregation circa 1900 would likely have led to nationwide Jim Crow (though probably a less severe version than existed in the deep South) and nationwide denial of the right to vote for African-Americans. The point is not that federalism was always good for minorities (it clearly was not), but that our history is far more complicated than a morality play in which evil states oppress minorities until the latter are rescued by a benevolent federal government. I discussed these historical points about federalism and minority rights in greater detail here.

Finally, it’s worth noting that Gerken’s progressive defense of federalism coexists uneasily with her apparent rejection of judicial enforcement of structural constitutional limits on federal power. If federalism today is good for minority groups because they often have greater influence at the state and local level than in Washington, it logically follows that minorities could benefit from stricter enforcement of constitutional limits on federal authority. Otherwise, a hostile national majority can use its control of the federal government to override the locally powerful minority’s gains.

Much more can be said about Gerken’s article. For now, I would add only that it’s a valuable contribution to the ongoing reconsideration of federalism on the political left, as well as the broader debate on the subject.