The Joy of Federalism

by FRANKLIN FOER
The New York Times, March 6, 2005, p. 12


Nobody would ever confuse the Massachusetts liberal Barney Frank with the South Carolina conservative Strom Thurmond. But when the tart-tongued Frank appeared on Fox News Sunday last winter, it sounded as if an aide had accidentally slipped him some of Thurmond's talking points from the 1950's, when he was a states'-rights segregationist. ''Should the federal government say no state can make this decision for itself?'' Frank asked. He had ventured onto Fox to assert each state's right to marry gay couples.

Frank isn't the only supporter of gay marriage to sing the praises of federalism. Last December, Andrew Sullivan argued in The New Republic, ''The whole point of federalism is that different states can have different policies on matters of burning controversy -- and that this is O.K.'' That same month, Paul Glastris, the editor of The Washington Monthly, posed the question, ''Why shouldn't the Democrats become the party of federalism?''

In some respects, they already have. Liberal energies once devoted to expanding the national government are being redirected toward the states. New York's attorney general Eliot Spitzer, declaring himself a ''fervent federalist,'' is using state regulations to prosecute corporate abuses that George W. Bush's Department of Justice won't touch. While the federal minimum wage hasn't budged since the middle of the Clinton era, 13 (mostly blue) states and the District of Columbia have hiked their local wage floors in the intervening years. After Bush severely restricted federal stem cell research, California's voters passed an initiative pouring $3 billion into laboratories for that very purpose, and initiatives are under way in at least a dozen other states.

These developments may look like a desperate reaction on the part of some liberals to the conservatives' grip on Washington. But in fact the well-known liberal liking for programs at the national level has long coexisted alongside a quieter tradition of principled federalism -- skeptical of distant bureaucracies and celebratory of local policy experimentation.

To understand liberal federalism, however, it is first necessary to understand its nemesis, Herbert Croly. A shy, obscure writer on architecture, Croly rose to fame in 1909 with ''The Promise of American Life,'' a long-winded manifesto calling for a strong national government. The book fell into the hands of Theodore Roosevelt and, with the Bull Moose as its promoter, it attracted a crowd of high-powered admirers, including the benefactors who bankrolled Croly's new magazine, The New Republic.

Croly had a tendency to swing wildly and hard. His big target was Thomas Jefferson, a man of ''intellectual superficiality and insincerity.'' The sage of Monticello, Croly argued, had created a government suited for a bucolic era. But modernity, the birth of the corporation, the closing of the frontier and technological advances had reshaped America and rendered Jefferson's governing vision obsolete. What America needed was centralization and efficiency, not antiquated state governments. The inefficiency of state governments, he said, was ''one of the most fundamental of American political problems.''

Croly generally gets lumped together with the early-20th-century progressives, but his book often savaged these supposed comrades as outdated and stupidly old-fashioned. Croly accepted concentrations of power -- corporations, as well as a strong central government -- as immutable facts of modern life. Many of his fellow reformers, he charged, were clinging to an outmoded Jeffersonian affection for competition and equality. They wanted to dismantle the trusts and return to a marketplace dominated by small business. What's more, Croly claimed, these reformers continued to harbor an irrational attachment to state governments; instead of building a modern centralized nation, they focused on renovating the old state machinery. Progressives in the West, for instance, created the referendum, allowing citizens to vote specific laws up or down. Croly, an unabashed elitist, preferred handing power to experts.

In his polemical mode, Croly unfairly skewered the reformers' motives. The turn-of-the-century debates over the future of corporate capitalism resembled the current conflagration over gay marriage. There was no national consensus on the regulation of business then, just as there's no national consensus on same-sex unions now. Rather than wasting breath trying to persuade obstreperous Southern congressmen to back federal labor laws, the progressives plunged forward and passed reforms in the Northern and Midwestern state legislatures. Beginning with Robert La Follette's 1900 gubernatorial victory, Wisconsin raced farthest ahead in the nation, slashing railroad rates and passing laws on corruption and conservation.

Devout believers in the new social sciences, the progressives invested near mystical power in empirical data, and this faith guided their federalism. As Louis Brandeis wrote in a famous 1932 Supreme Court dissent, states could serve as ''laboratories of democracy,'' control groups to test the value of particular policies. Progressives believed that once the nation saw how successful these state-level reforms were, it would eagerly mimic them. Indeed, La Follete's administration became a trendy model. ''Outside the state, the 'Wisconsin idea' was rapidly becoming a program and inspiration,'' Eric Goldman wrote in his 1952 history of American reform movements, ''Rendezvous With Destiny.'' The Badger State had become a national guinea pig.

It's not surprising that Brandeis coined liberal federalism's signature slogan. A Kentucky-born corporate lawyer, whose wealth freed him to pursue progressive causes, Brandeis was the doctrine's sincerest believer -- and, for a time, Croly's intellectual adversary. And just as Croly had said, Brandeis continued to harbor a Jeffersonian aversion to agglomerations of power, or the ''curse of bigness'' as he called it, in both business and government. ''If the Lord had intended things to be big, he would have made man bigger -- in brains and character,'' Brandeis quipped in Congressional testimony in 1911. This abhorrence of bigness led him strenuously to oppose Croly's program, which proposed nationalizing inefficient trusts and tolerating efficient ones.

The Croly-Brandeis debate became the central theme of the 1912 election. While Croly was helping to conceive Theodore Roosevelt's New Nationalism program, Brandeis met with Woodrow Wilson at a low point in his campaign. As the late James Chace described the encounter in his narrative of the election, ''1912,'' Brandeis instantly supplied much-needed ideological direction to the faltering Democratic candidate. ''After his first meeting with Brandeis, Wilson spoke with new fervor.''

For conservatives, ''states' rights'' often seems just another way of asserting their libertarianism, their dislike of government in any form. Liberal federalism, on the other hand, doesn't view the state and federal governments as opposing forces. Brandeis may have celebrated the states but he also stressed the importance of federal antitrust policy, and he became the New Deal's most reliable advocate on the Supreme Court, even meeting privately with Franklin Roosevelt. New Dealers affectionately referred to Brandeis as ''Isaiah.''

That's not to say Brandeis meshed perfectly with the Roosevelt administration. He couldn't abide the president's seemingly boundless ambition to expand executive power. He joined a majority on the court in striking down a handful of New Deal programs, including the National Industrial Recovery Act. He even sent a stern note to Roosevelt's consigliere, Thomas G. Corcoran: ''I want you to go back and tell the president that we're not going to let this government centralize everything. It's come to an end. As for your young men,'' by which Brandeis meant the core of intellectuals assembled around the New Deal, ''you call them together and tell them to get out of Washington -- tell them to go home, back to the states. That is where they must do their work.''

Despite Brandeis's reprimand and the Supreme Court's decisions, Roosevelt's ''young men'' didn't soon leave Washington. World War II -- and then the cold war -- created new engines of government for them to operate. Emerging from the war convinced that America had just fought on behalf of equality and other liberal values, they wanted to transfer that crusading spirit to domestic causes. Eminences like Arthur M. Schlesinger Jr. and John Kenneth Galbraith celebrated the ''American creed'' and ''national greatness,'' phrases that echoed Croly's call for a ''new nationalism.'' And even if the war hadn't propelled liberals in this nationalistic direction, the segregationist invocations of states' rights would have. ''The time has arrived,'' Hubert Humphrey declared at his party's 1948 convention, ''for the Democratic Party to get out of the shadow of states' rights and walk forthrightly into the bright sunshine of civil rights.'' Humphrey's party adopted a civil rights platform plank, and in response, Strom Thurmond led a white flight to a newfangled States' Rights Party.

Nationalistic postwar liberalism flourished, but a left-wing critique of it arose in the early 1960's. New Left student rebels shared Brandeis's aversion to bigness, though they arrived at their aversion through a very different intellectual tradition. Tom Hayden and other stalwarts of Students for a Democratic Society (S.D.S.), the defining organization of 60's radicalism, had absorbed the lessons of books like C. Wright Mills's ''White Collar'' and ''Power Elite,'' and Paul Goodman's ''Growing Up Absurd.'' (Hayden even wrote his master's dissertation on Mills.) This literature railed against bureaucracy, centralization and technocrats as agents of mass alienation and conformism. ''Overcentralization is an international disease of modern times,'' Goodman wrote in ''People or Personnel.'' Precisely the same language can be found in S.D.S.'s 1962 manifesto, the Port Huron statement, where the group waxed utopian about ''participatory democracy,'' a governing philosophy it described as the antithesis of managerial liberalism.

Over the next two decades, the raw ideas of Port Huron were tamed and refined by communitarian scholars like the Harvard professors Michael Sandel and Robert Putnam. These communitarians didn't particularly like the 60's counterculture ethos, but they assimilated many of the New Left's ideas about community, applauding civic organizations like churches and private charities as essential pillars of democracy. And they bemoaned changes in the political landscape that had blinded mainstream liberalism to the virtues of these institutions. The Washington Post's communitarian-minded columnist E. J. Dionne lamented that liberals ''came to believe that almost all doctrines emphasizing the value of local community were indistinguishable from the phony 'states' rights' arguments used by segregationists.'' A strong trace of Catholic social teachings could be discerned in these views, especially Pope Pius XI's 1931 encyclical on ''subsidiarity'' -- the idea that social ills are best solved by the organizations and people closest to them. Although the communitarians didn't spend much time integrating state governments into their vision, they spoke of them with great respect. Sandel concluded his book ''Democracy's Discontent'' with a call for progressives to discover the ''unrealized possibilities implicit in American federalism.''

By the 1970's, liberal federalist ideas suddenly had an opportunity to break into widespread circulation and shake off the segregationist stigma. Vietnam had stolen the swagger from nationalistic liberalism, a change that could be witnessed most poignantly in the writings of Arthur M. Schlesinger Jr. After spending decades advocating a strong central government, he wrote ''The Imperial Presidency'' in 1973, warning that the executive branch now possessed dangerous concentrations of power. But liberal federalism didn't fully get a hearing until the emergence of a new champion, Bill Clinton.

Prodded by a Republican Congress and a conservative Supreme Court, Clinton actually presided over the revitalized federalism that Sandel imagined, and even spent time in the White House huddling with Sandel and Putnam. Federalism suited his declared ambition to move beyond the era of ''big government.'' In 1995, he signed a law prohibiting the national government from imposing new burdens on the states without first providing funds to cover any costs. The welfare reform package he ushered into law a year later gave states enormous latitude in remaking social policy.

George W. Bush didn't give Clinton much credit for these achievements. Like many of his predecessors, he entered office promising to rescue the states from federal pummeling. Yet his administration has greatly expanded federal power, and some conservatives have been complaining. Writing in National Review two years ago, Romesh Ponnuru observed that ''more people are working for the federal government than at any point since the end of the cold war.'' State governments have their own version of this complaint. They say the Bush administration has imposed new demands -- federal education standards, homeland security tasks -- without also providing sufficient cash to get these jobs done. The Republican senator Lamar Alexander recently told The Times, ''The principle of federalism has gotten lost in the weeds by a Republican Congress that was elected to uphold it in 1994.''

This is hardly the first time that self-described federalists have abandoned the cause. Strom Thurmond ran on the States' Rights Party ticket in 1948, but throughout his long career as a senator, he never had qualms about heaving bushels of federal money into his state. In 1982, Ronald Reagan announced his own ill-fated new federalism proposal. But instead of dismantling Washington, his administration imposed a raft of new health and safety regulations on the states. Perhaps federalists have failed to reshape American government because federalism isn't really a governing philosophy. Its proponents describe a world that doesn't exist. In actuality, the states and federal government aren't cut-throat competitors but codependents, with state governments living off federal money and implementing federal programs. Rather, ''states' rights'' can be seen as a subgenre of political rhetoric, part of what the historian Michael Kazin calls the ''populist persuasion.'' And like so much of the language of populism, it proves hollow once its adherents obtain power.

One suspects that many if not most of today's liberal federalists haven't converted out of true belief, either. Some have adopted the rhetoric of states' rights because it provides psychic relief from the alienation they feel now that a majority of the nation's voters has returned George W. Bush to office. In its most frustrated form, this alienation has manifested itself in the ubiquitous joking about emigrating to Canada. Liberal federalism provides a more rational outlet. Instead of retreating to Vancouver, liberal federalists would retreat from national politics and focus on effecting change in their own blue states -- passing health care reforms, expanding gay rights. At the height of the liberals' postelection angst, The Stranger, a Seattle alternative weekly, declared: ''We can secede emotionally, however, by turning our backs on the heartland. We can focus on our issues, our urban issues, and promote our shared urban values.'' It's like the path evangelicals beat after the Scopes trial, when the religious right took a 50-year break from mainstream political activity and quietly tended their own institutions.

Some Democratic political strategists are also guiding liberals in this direction. In election postmortems, they have urged the party to follow in the Truman-Reagan-Gingrich tradition and rail against the corrupt interests ruling Washington -- ''an aggressively reform, anti-Washington, anti-business-as-usual party,'' as James Carville described it at a Democratic hand-wringing session last November. Proponents of this strategy now reside in nearly every corner of the party -- from Howard Dean, the new chairman of the Democratic National Committee, to the Democratic Leadership Council. Positioning the Democratic Party as the great modern-day defender of states' rights against imperial Washington jibes neatly with this strategy. Progressives once championed states as laboratories of democracy. Now many of them are hoping these laboratories will produce the Democratic electoral cure.