Just seven years ago, scholars of American government were talking about a resurgence of federal power and initiative in the country’s political system. Barack Obama had taken office with lots of ideas for how to use Washington’s leverage to redirect public policy at every level of the system.
Not only were the Affordable Care Act and a massive financial regulation bill working their way to enactment, but Congress had approved an $831 billion economic stimulus package that was far more than an effort to revive the economy: It was a blueprint for the implementation through federal law of longstanding Democratic priorities in renewable energy, public transportation, subsidized housing, medical research and dozens of other categories that would take pages just to describe. It seemed that a political system balanced uneasily between national and state priorities was about to take a huge turn in a national direction.
That feels like ancient history now, doesn’t it? As the Obama administration prepares to leave office next January, the word “gridlock” serves as an almost universal description of political impotence at the federal level. The balance of power has shifted out of Washington and into state governments. Bill Pound, the dean of state legislative observers, summed it all up succinctly a few weeks ago: “The states are where the action is, and where the innovation is.”
There’s a simple explanation, of course. Republicans took away the president’s congressional majorities, ushering in five years of virtually unbroken federal stalemate. But maybe that’s too simple. Maybe the shifts in power over the past few years are the result of something more substantial than changes in the numbers on Capitol Hill.
That is the impression you get, at any rate, from reading Liberty and Coercion, the comprehensive new book on the American federal system by Gary Gerstle, a widely respected scholar of American government who currently teaches at Cambridge University in England. Gerstle traces the history of state and federal competition all the way back to the 18th century, and comes up with a quirky but provocative thesis. Taking a long view, Gerstle believes, one has to conclude that the system is essentially rigged in favor of the states.
All you really have to do to take Gerstle seriously is to think about the Constitution. The 10th Amendment says pretty clearly that there are not supposed to be any implied federal powers. In other words, whatever the federal government isn’t expressly allowed to do, it shouldn’t do. The 10th Amendment hasn’t been invoked much by federal courts over the last century, but it remains in place, impossible to push aside entirely. The feds have rolled over it, but not without a certain amount of residual discomfort.
The first nine constitutional amendments were never intended to be binding on the states. James Madison thought they should be, but he lost that battle, even though he was the primary architect of the Constitution. If a state wanted to pass a law abridging the freedom of the press, Gerstle writes, “it could.” And many of them did.
The states, moreover, were granted virtually unlimited freedom to regulate public and private conduct under the police power doctrine that came over with British common law. Nineteenth-century courts at all levels followed the rules articulated by the Massachusetts Supreme Court that states had the power to pass “all manner of wholesome and reasonable laws … as they shall judge to be for the good and welfare of the commonwealth.” States could regulate marriage, drinking, gambling, the arts and sexuality. They could fix railroad rates and grant or deny charters to nascent corporations. They could use their power to enforce slavery, and until the Civil War, many of them did. “In truth,” Gerstle writes, “state governments possessed a staggering freedom of action.” The federal government, on the other hand, possessed “no tools adequate to the task of building a large regulatory state.”
That didn’t prevent a long string of presidents, congresses and supreme courts from pretending that the straitjacket wasn’t there and twisting the meaning of constitutional provisions. For the most part, this was done by the federal courts, and especially the U.S. Supreme Court. To legitimize the New Deal activism of the 1930s, for instance, the Supreme Court inflated the Constitution’s interstate commerce clause to govern virtually any form of public interaction, whether it crossed state lines or had anything to do with actual commerce or not. Most ingeniously, and most famously, the court decided that the Constitution’s 14th Amendment, enacted after the Civil War to grant rights of citizenship to former slaves, imposed on the states most of the language of the Bill of Rights, whether or not that was the intention of the original authors.
One can argue, and many modern scholars actually do argue, that most of this trickery went for a worthy cause. It gave us Social Security and labor unions, civil rights legislation, civil liberties protection and a host of other initiatives that by the late 20th century had become commonly accepted pillars of jurisprudence and federal responsibility. Gerstle himself thinks the goals were beneficial. His point is simply that all those decades of constitutional fibbing did not come without a price.
The price began to emerge in the 1960s, as the Supreme Court took federal power further and further from any common sense reading of the Constitution. In 1965, in order to invalidate a Connecticut law banning the sale of contraceptives, the justices discovered a constitutional right to privacy, even though none had been deployed in a similar way in nearly two centuries of the nation’s existence. The right to privacy was said to exist in the Bill of Rights not as actual language or even intent but in the “penumbras” and “emanations” that surrounded the document and were visible to modern jurists, if not to the naked eye. Justice Hugo Black warned his colleagues on the court that they were on dangerous ground in Griswold v. Connecticut, inventing federal powers that clearly did not exist. But Black was outvoted.
Eight years later, the Supreme Court entered upon its most famous exercise in constitutional imagination, ruling in Roe v. Wade that laws against abortion violated the right to privacy that had been identified in Griswold. Even many supporters of abortion rights understood that the court had reached the outer edges of logic. Abortion opponents went further. Not only was the right to privacy not part of the Constitution, they argued, but even if it were, the link between abortion and privacy was tenuous at best.
It was clear from the outset that Roe v. Wade would generate a backlash, but Gerstle goes further. He believes that it was a backlash not just against one decision or even against Supreme Court activism but also against the whole edifice of thinly justified federal power. The court’s activism over the preceding two decades, in his view, “rested on an insecure foundation.” It was bound to lead to an opposing movement on behalf of states’ constitutional prerogatives.
It may seem a bit of a stretch to draw a straight line from the judicial activism of a generation ago to the revival of state constitutional initiative that has characterized the past five years in American government. It is possible to argue that the election results of 2010, which left Republicans in control of most of the nation’s governorships and most of the state legislatures, are enough to explain what has happened.
But it is hard to ignore the fact that most Republican politicians and much of the electorate routinely talk about the federal government in bitter terms as an alien presence in their political lives. The Affordable Care Act is viewed by nearly all of its critics as a blatant federal power grab, even though that law was designed to be implemented and run at the state level. Chief Justice John Roberts, even as he cast the vote that made the health-care law constitutional, followed up by scolding the Obama administration for trying to force the states to expand Medicaid. The administration, Roberts wrote, must accept the fact that states are “independent sovereigns in our federal system.”
They certainly have been acting like independent sovereigns. Republican governors and legislatures have launched aggressive campaigns to curtail the rights of labor unions, impose stringent voter identification requirements and enact massive tax cuts. They have made sweeping reductions in social services and aid to cities. They have taken advantage of a stalemate in Washington to force a rewrite of the No Child Left Behind education law. It would be going too far to describe the states the way Supreme Court Justice Louis Brandeis once did, as “laboratories of democracy.” But they have been laboratories of conservative experimentation.
One might expect that Gerstle, as a meticulous student of state power, would be pleased by all this. Actually, the opposite is true. Gerstle thinks the states have been poor stewards of the public good, miserly when it comes to basic human services and lax at protecting personal liberties. He would like to see a more robust and assertive federal government.
But he thinks the only way to create that government would be by constitutional amendment. He believes that in the absence of constitutional change (which he admits is all but impossible in the near future) Washington will only make itself more unpopular by trying to exercise powers it was not supposed to have.
Perhaps the moral of the story is that penumbras and emanations are dangerous weapons to wield, especially when they exist only in the minds of judges.