A More Perfect Union?
The political insurgency that has transformed the face of American politics in the past year bears witness to the power of ideas. That the prestige media should only slowly have begun to acknowledge this fact should surprise no one. Aside from being very ungenerous, ABC’s Peter Jennings was also very obtuse when he interpreted the 1994 elections as a collective “temper tantrum.” Now, less than a year later, it is clear that something far different, and far more significant, has been emerging in American political life.
An intellectual shift is taking shape, one whose momentum has been gradually building for several decades, and whose eventual effects upon our understanding of government, public life, the Constitution, the political parties, citizenship, and much else besides, are likely to be deep and enduring. The shift is being driven by a serious erosion of confidence in the institutions and works of government, and most particularly of the federal government. Most thoughtful observers will readily admit that this erosion has occurred. But they do not agree about its meaning.
Some find nothing good to say about it. They see it as sheer delusion, or as evidence of the American public’s fecklessness and immaturity, or—worse—its propensity for the paranoid style. Or they see anti-governmental disgust as a cheap, self-indulgent, and self-serving posture—another case in which selfish and ungrateful Americans look for someone else to blame for their imperfect lives. Or they point to the public’s notoriously split-minded attitudes toward Big Government—cut the entitlements, but not mine; Congress is obscenely corrupt, but my bacon-delivering Congressman is OK—as evidence that it has not really thought its position through, or does not have the moral seriousness to be consistent.
There is a measure of truth in each of these observations. But they miss the larger issues at stake. In a democratic polity, which relies upon public support for its legitimacy, the pervasiveness of such anti-government sentiment is itself a fact of profound and worrisome importance, one that cannot be merely scolded or ridiculed out of being. Like it or not, the fact will have to be dealt with. As for the matter of contradictory views, are they really so surprising? Are they not precisely the ambivalent attitudes one would expect a favor-dispensing government to engender in its favor-accepting population? And as for the question of delusion, can one really fault Americans who wonder why their government, which claims the right to regulate the minutiae of its citizens’ lives and businesses, should nevertheless be unable to provide those same citizens with safe streets, secure borders, and a balanced national budget?
It is frustration over just these issues that led to the success of the Contract With America, and is fueling the drive toward structural changes like the balanced-budget amendment, term limits, school choice, welfare reform, income-tax reform, privatization, and devolution—reforms intended to make government smaller, and more accountable to those it serves. Such reforms have significance in their own right. But they are also the leading indicators of changes in our understanding of government, and perhaps even of the trajectory of modern American history.
Until recently, that history was told largely as the steady and inevitable triumph of nationalism: that is, the triumph of the nationalizing and centralizing forces in American life over a multitude of local, provincial, regional, or particular concerns.
American political history has been punctuated by a series of such struggles. In the Founding period, the far-sighted and continental-minded men who proposed the Constitution prevailed over the more backward-looking and localistic anti-Federalists. In the Civil War, a conception of the United States as an indissoluble national union prevailed over the lingering claims of state sovereignty. And so it went, with the adoption of the Fourteenth Amendment, the Progressive movement, World War I, the New Deal, the postwar civil-rights movement, the Great Society—each becoming a land-mark on the broadening path to a more powerful and comprehensive central government. Each was a victory for what Herbert Croly, the founding editor of the New Republic, called “the national idea”—the belief that all that is highest and most desirable in our culture is expressed by and in national institutions, and the enlarged sense of community and collective purpose they embody.
As the national idea rose, so did a more expansive view of national political institutions as a necessary counter to the growing forces of economic concentration. The Progressive movement, in which Croly was a central figure, played a crucial role in this development. Distressed by the corrupting influence of private interests upon government, but supremely confident of the ability of university-trained social-scientific experts to discern the public interest, Progressive reformers wanted a vigorous national government to take a firm hand in regulating the nation’s economic, social, and moral life.
That such a robust government might surpass the limits ordained by the Constitution did not trouble them. Rather, they believed, a powerfully activist national government could preserve the essential thrust of the Constitution precisely by being free of its particulars. It could, in Croly’s famous phrase, use “Hamiltonian means” to achieve “Jeffersonian ends.” Such a premise has dominated most efforts at large-scale reform in this century.
Until now, that is. At today’s distance from the Progressives’ naive confidence, one cannot contemplate their arguments without a profound sense of irony. For it is now very hard to convince Americans that the anointed experts are wise and disinterested, that elected officials really represent them, that civil servants really serve, or that their government can ever be made efficient and competent.
Instead, a growing number have come to see their government, and particularly their federal government, as itself one of the most parasitic and avaricious of interest groups; and they have come to suspect all talk of “the public interest” as the first refuge of scoundrels, a high-sounding cover for mere aggrandizement. They can readily see what a wealthy city Washington has become. They see how many of its inhabitants make a handsome living off the constant churning and manipulation of causes and issues, important and trivial alike. And, perhaps most devastatingly, they see all around them the disastrous consequences of expensive and ill-considered government social policies, consequences that no spin doctor can explain away. As Washington has waxed, it seems to them that the nation has waned.
Small wonder, then, that they are filled with contempt for government, and for the political class. They did not need Waco, conspiracy theories, or even Ross Perot to reach such conclusions. Indeed, the sudden prominence of such phenomena in American life is more an effect than a cause of the current disaffection.
Still, disaffection is not a policy initiative. And downsizing, however warranted, does not amount to a theory of government. To rail against the venality, waste, and absurdity of Big Government is easy enough. To suggest what can plausibly be put in its place is quite another matter.
The concept of “devolution,” much favvored by conservative politicians these days, represents the attempt to translate anti-Washington sentiment into the language of public policy. But the term’s meaning, and its practical consequences, remain poorly defined. Perhaps that has been partly by design, for the abstractness of the term blurs an important distinction, and thereby obscures a potential source of political conflict.
Is devolution designed (in the political scientist Charles Kesler’s formulation) “to empower state and local governments” as against the federal government; or is it designed “to empower individuals against government at all levels”? That is a crucial difference. The word’s usage would seem to incorporate both “federalist” and “libertarian” goals, but the two have very different premises and implications. If only one of them comes to predominate, that will make an enormous difference in the shape reform takes.
Such an imbalance seems possible, even likely. The “libertarian” aspects of devolution represent far and away the easier sell, since they comport so well with our culture’s boundless regard for the language of individual rights, and its distrust of government at all levels. House Speaker Newt Gingrich states his own position with characteristic bluntness in the pages of his new book, To Renew America:
[M]uch as I sympathize with both state and local governments, what we really want to do is to devolve power all the way out of government. . . . Republicans envision a decentralized America in which responsibility is returned to the individual.
This is a popular position. Any systematic weakening of the nanny state is bound to be welcome news to many Americans. Such an emphasis also complements the growing interest among decentralists in strengthening “civil society,” the complex and largely spontaneous network of nongovernmental voluntary associations, such as religious, professional, and philanthropic organizations, that involve themselves in public affairs and mediate between the individual and government.
But it must also be said that the reversion of power from Washington to the individual, far-reaching and beneficial though its effects might be, does not really challenge the dominance of the national idea. It does not seek to augment or protect the independent authority of state and local political institutions, or to equip states and localities to contend with, and act as a check upon, national power. Even the unfortunate word “devolution” itself carries this sense of the nation’s primacy, since in its technical sense it denotes the transfer to a subordinate entity of power that remains under the central authority’s rightful control. Revenue sharing and block grants may be expressions of devolution and decentralization. But they are not expressions of federalism, properly understood.
And what is that? It would, indeed, be hard to imagine a political concept more poorly understood than federalism. Only a handful of dedicated scholars have continued to regard it as a subject even worth studying. And the paradoxical use of the term “federal government” to denote the national government has misled most ordinary Americans into associating federalism with centralism.
Yet quite the opposite is true. The genius of federalism is that it divides political power between and among units of government—central and local, higher and lower—in such a way that all retain certain elements of autonomy and self-governance. Federalism thereby offers the prospect of reconciling the advantages of independence with the advantages of combination, the cohesiveness of small-scale local governance with the resources and external security provided by a unified nation.
For a federal system to preserve its character, however, it must find clear and consistent ways of strictly limiting the powers of the central authority. The best way of doing so is through a written constitution, which defines the central government’s sphere of legitimate activity, and at the same time assures the local or provincial governments that their spheres of autonomy will not be violated or compromised.
The Framers of the U.S. Constitution tried to do just that as they set about, in the famous phrase, “to form a more perfect union.” They created a national government which, though powerful enough to overcome the patent deficiencies of the Articles of Confederation, was still restricted to certain enumerated powers, a limitation made explicit in the Tenth Amendment. One can argue over whether the government established by the Constitution was federal in the strictest sense, since it was clearly preeminent in many respects and was formed by the consent of “We the People” (and not, as Patrick Henry lamented, “We the States”). James Madison himself described the Constitution as a “composition” of federal and national systems, but he emphatically did not envision the Constitution as the blueprint for a consolidated national government which would completely supersede the separate authority of the states. Not only did he presume the continuing vitality of the states, but he felt confident that they would always enjoy a certain primacy. As he put it in Federalist 45:
[E]ach of the principal branches of the federal government will owe its existence more or less to the favor of the state governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing toward them.
But Madison could hardly have been more wrong. Given the near-complete success of the very consolidation that the Founders dreaded, that Madison thought unlikely, and that was made possible by a wholesale departure from the kind of federalism the Constitution prescribes, it would be easy to conclude that the restoration of such federalism in our time is a quixotic undertaking.
The historical picture is not an encouraging one, and is made worse by federalism’s unfortunate past affinity with bad causes like slavery and racial segregation. Although national politicians from Robert Taft to Ronald Reagan have sought to counter the New Deal’s consolidation of centralized power, their successes have been few in number, and largely rhetorical in character. The steady growth of Leviathan has come to seem as invincible and inevitable as a force of nature. What reason is there to think that one more roll of the dice at this time, when the central government is bigger than ever before, and when the public barely understands what federalism means, can produce results that have eluded so many predecessors?
Several things are different now, however. One, of course, is the electorate’s generalized disgust with its national government. This has produced a climate of openness to change, and has helped elect politicians with an interest in devolution. But even more important is the potential for substantive change promised by some of the recent actions of the Supreme Court.
To be sure, the Court’s overall direction in recent years has often seemed confused or inconsistent, and it continues to be deeply divided. Nevertheless, a narrow majority of the Court’s current members appears willing, and in some cases eager, to revisit or overturn decisions and precedents that have disabled federalism in the past. Such leadership is of crucial importance: as the final arbiter of the Constitution’s meaning, the Court has it in its power to revive a framework of constitutional protections that could make a thriving federalism possible once again—and without which the cause of federalism will most likely continue to languish and decay.
To effect such a revival would be an act of enormous consequence, for it would involve reversing the “constitutional revolution of 1937,” the juncture at which the Court began to uphold the regulatory agenda of the New Deal and thus cleared the way for the unhindered growth of centralized power. After 1937, as the historian William Leuchtenburg has observed, the Supreme Court “upheld every New Deal statute that came before it,” and by so doing, “legitimated the arrival of the Leviathan State.” One of the principal tools employed in the expansion of that state was an infinitely elastic reading of the Constitution’s “commerce clause,” which, in its original acceptation, had merely granted Congress limited authority over the regulation of interstate commerce, a necessary and sensible improvement upon the Articles of Confederation.
After 1937, however, the clause became centralism’s entering wedge, since almost any activity has some arguable connection, however remote, with interstate commerce. Hence a freely interpreted commerce clause could be, and since 1937 has been, employed as a pretext for virtually any act of federal intervention in the affairs of states and localities.
The present Court, however, has begun to rein in the commerce clause. A highly significant case touching upon these issues was this spring’s United States v. Lopez, in which the Court held, by a 5-4 margin, that Congress had exceeded its constitutional limits in making it a federal crime to possess a gun within 1,000 feet of a school. The decision was particularly important because it addressed itself not to the merits of such a law per se, but directly to the issue of federalism: whether local law enforcement was properly a responsibility of state and local authorities, and therefore not the concern of Congress.
Both the majority and the dissenting minority agreed that the case hinged upon the Court’s interpretation of the commerce clause. In the past, the day would have been carried by tortured logic: that the guns in question might lead to violence, and violence would impair the educational environment, and thereby adversely affect the national economy—not only because the nation’s global competitiveness and economic well-being ultimately depend upon an educated workforce, but because under such conditions, publishers sell fewer textbooks and stores sell fewer school supplies. Such, in fact, was precisely the reasoning of Justice Stephen Breyer in his dissent in the Lopez case, and it was hardly more convoluted than the Court’s in, for example, Katzenbach v. McClung (1964), the landmark civil-rights case of 30 years ago which barred racial discrimination in restaurants partly on the grounds that restaurants refusing to serve blacks would buy and sell less food, and thereby depress the economy.
But such reasoning did not prevail in this instance. Instead, Chief Justice William Rehnquist chose the occasion to reaffirm that the constitutional doctrine of enumerated powers is a “first principle” of American government.
That the Court’s “federalist” contingent did not see Lopez as an isolated skirmish was confirmed later this spring in the case of U.S. Term Limits v. Thornton, which struck down state-imposed term limits. Though in this case the Court’s “centralists” prevailed by a 5-4 margin (thanks to the defection of Justice Anthony Kennedy), the vigorous dissent by Justice Clarence Thomas, also signed by Justices Antonin Scalia and Sandra Day O’Connor, and by Chief Justice Rehnquist, made it clear that the restoration of federalism as a “first principle” of American political institutions is now very much on the table, and will remain there for some time to come. It also appears likely that Thomas will turn out to be the Court’s most forceful and committed spokesman for the federal idea in years to come.
Such developments represent a dramatic reversal of the position reached by the Court as recently as 1985, at the height of the Reagan administration, in the case of Garcia v. San Antonio Metropolitan Transit Authority. The Garcia decision, also by a 5-4 margin, argued that the states had no constitutionally protected powers, and that there are no “discrete limitations on the objects of federal authority.” Hence it was a matter for the Congress, rather than the Supreme Court, to determine what powers the states would or would not be permitted to exercise. In short, the majority in Garcia offered an understanding of federalism that was national and central in all but name, and it was left for the minority to protest, which it did in the name of “almost 200 years of the understanding of the constitutional status of federalism.”
Today, for the moment, the shoes seem to have changed feet, and so it is no wonder that the New York Times’s Linda Greenhouse, in writing about the term-limits case, should have charged that the Court is now but “a single vote shy of reinstalling the Articles of Confederation.” The federalists on the Court seek nothing of the kind, of course. But there can be no mistaking their intellectual seriousness and determination, and their willingness to initiate bold changes. Because of them, the prospects for a restored federalism now appear far more favorable than they have been in recent memory. Nor can it carry much weight for their opponents on the Court to protest, as Justices Breyer and David Souter have done in the wake of Lopez, that the present Court is acting in dangerously unrestrained ways, unsettling issues thought to have been settled. After all, unsettlement was what the 1994 elections were all about.
Even so, the preponderance of 5-4 decisions indicates that we are still a long way from a solid consensus on these matters in the Supreme Court, let alone in the nation. Leviathan has many friends and many more dependents, and it has barely begun to fight. There is not a single one of us who does not at some point feel the pull of its blandishments. In the fierce budget battles now facing the Congress, we will be regaled with countless examples of the difficulties and dislocations entailed in any reduction of the size and scope of the federal government. Given the fact that so many Americans no longer have the slightest idea what federalism is, its advocates will have to proceed as if the public were being introduced to an entirely new vision of their country.
The federal idea is a delicate balancing act, and it can go wrong in more than one way. It would be just as much a violation of the federal principle to cripple the central government altogether as it would be to give it unlimited power. In that sense, the anarchism proposed by some anti-government groups, a form of self-proclaimed devolution, is precisely the wrong answer to the challenge of an overly large central government. Indeed, one might say that the anarchists and the centralists represent two sides of the same coin, both unable to conceive of what a properly focused and constitutionally limited central government might look like within a healthy federal system.
Federalism, to repeat, was not somehow incidental to the Framers’ intentions. It was absolutely essential, and we need to remember why. They distrusted power, distrusted government, distrusted numerical majorities, distrusted human nature. They believed in “the necessity of auxiliary precautions” (Federalist 51) to guard against the abuses of power to which popular governments are prone. Hence the need to devise a government that deliberately set up “opposite and rival interests” that could check and balance one another, using “ambition . . . to counteract ambition.” Federalism was a crucial part of this arrangement. The separation of national and state governments, in tandem with the separation of powers within each level of government, provided “a double security” for the people’s rights, through the effective dispersion of power.
That essentially negative, protective function of federalism is complemented by an equally important positive function, one which has received far less attention than it deserves: preserving the integrity of smaller-scale forms of political organization. A federal regime properly constituted should offer a multitude of arenas for meaningful acts of citizenship—the kind of acts that elevate and deepen, while binding people more closely and affectionately to their locale and nation.
This perspective on citizenship has its roots in the characteristic outlook of the early nation. The older classical-republican conception of virtue, which so profoundly influenced the Founding generation, stressed that the individual could not realize his human nature in its fullness without involvement in public life—and that a strong republic depended upon such public-spirited individuals for its existence. Virtue was the health of the state, no less than of the energetic citizen.
Yet as Tocqueville and other observers would soon notice, the conditions of American life tended to draw individuals away from virtuous devotion to public affairs, and into the single-minded pursuit of economic advancement and personal well-being. Tocqueville in particular greatly feared the consequent tendency toward privatism in American life (which he called individualism), both in its effects upon individual souls and on the prospects for a genuinely self-governing polity.
Fortunately, he believed, the American Founders had well understood this, too. Not being under the illusion that a national community alone could provide an adequate arena for citizenship, they took care to “infuse political life into each portion of the territory in order to multiply to an infinite extent opportunities of acting in concert for all the members of the community.” In other words, Tocqueville saw the federal idea as a key element in the American attempt to reconcile the republican conception of virtuous citizenship with the self-interested dynamism of liberal individualism. By permitting citizens maximum autonomy in the administration of minor or local affairs, a well-ordered federal regime draws them more generally into a responsible public life.
Which brings us back to the current interest in the principle of devolution. Political theorists from Aristotle to Montesquieu postulated that for a republic to stay a republic, it had to stay relatively small, geographically and demographically. Their insistence on this point may have reflected a presumption that a truly self-governing community was also, to some extent, a moral community, and that excessive size fatally undermined that possibility. Madison, in his celebrated rejoinder to such theorists in Federalist 10, explained to the contrary how an “extended republic” could control the tendency toward faction in popular governments precisely by multiplying the type and number of factions.
Perhaps, however, Montesquieu’s dictum about small republics, whatever its purely political truth, contains a powerful psychological truth, one that considerations of utility, economy of scale, and all the other arguments for larger size cannot entirely banish. “In order to commit ourselves to collective ends,” observed the French social theorist Emile Durkheim, “we must have above all a feeling and affection for the collectivity.” There must be some point of emotional entry, some point of congruency between the shape of the polity and the shape of the human heart, if that polity is to draw out the participation of citizens, and command their unfeigned loyalty and affection. Size and scale seem to have an irreducible importance. The challenge is to find ways of restoring the sense of congruency offered by smaller, more human-scale institutions, while retaining the advantages of national government.
Obviously we no longer live in the 1780’s, or even in the 1930’s, and therefore the process of restoring federalism will also, to some extent, involve reinventing and rethinking it, piece by piece. The recovery of federalism will not require that the city of Washington be dismantled, the Interstate Highway System rolled up, the Marine Corps disbanded, and all forms of national-scale economic and political organization banished. But it will require attempting to reconcile the existence of such forms of organization with other forms, and other sets of political and social values, no less important in themselves and no less worthy of being represented in our political institutions.
That will be difficult work, far less immediately appealing than a more radical devolution that would sweep away government entirely. If we are serious about devolution, we will have to face the fact that, however attractive and desirable, it will not be a panacea, and that devolved power and responsibility may actually demand a lot more of us, day in and day out, than Big Government has done.
Here, indeed, lies the great irony. Self-reliance and self-governance are profound human needs, and offer profound human satisfactions. But self-governance, far from getting government off our backs and out of our lives, will require that we devote a good deal more sustained attention to public affairs than we do now—not only to the relatively interesting sphere of national politics but also to the tedium of the town council, local school board, public-service commission, and the like. Citizenship (to turn a phrase of Oscar Wilde’s about socialism) takes a lot of evenings, and there is reason to wonder whether many of us will not, in the end, decide to pass on that particular bargain, preferring to put our energies elsewhere, and accepting the inevitable alternatives as the best to be had. For all our vaguely approving talk about civic virtue, we have yet to ask ourselves whether we are really prepared to pay the price for it.
In this connection, it should also be remembered that our present enlarged national government arose, not out of malice or absent-mindedness, but out of a commendable desire to address real and grievous problems of economic instability and social inequality that were not being otherwise addressed. State governments did not have a particularly good record in these matters. Paradoxically, whatever advances state governments have made in recent years in the areas of both efficiency and equity probably would not have occurred without the very nationalizing forces the states are now attempting to resist. In any event, though the social and economic problems of the last decades may not have been solved by Big Government, and indeed may have been only intensified by it, they were not entirely its creation, either, and we will have to reckon with them in Big Government’s absence.
Yet the picture is not entirely gloomy. Durkheim observed that, in France, a “vicious circle” inhibited the effort to produce more vital decentralized institutions. On the one hand, “associations can only spring up again when the feeling for association awakens”; but on the other hand, such a feeling “cannot awaken except within already existing institutions.” Unlike France, the United States is fortunate in already having such institutions in place, however dependent or enfeebled they may appear at the moment. And the feeling of association, though perhaps not as powerful as it once was, still remains very much in evidence—not least in the myriad of anti-government movements. Perhaps it will yet be possible, through a series of bold devolutionary actions, to redirect some of those energies into the life of those institutions.
In any event, federalism’s future will likely be decided by the answer to one question: do the states and localities, and the citizenry, now have both the will and ability to accept the pains and pleasures of greater responsibility, and thereby to bring the nation into a more balanced and more fully realized federalism? We may soon have a chance to find out. But one should not underestimate the degree to which we will have to change, individually and collectively, if that effort is to be anything more than a pause in the steady growth of Leviathan.