Federalism's Decline: A Preexisting Condition of Our Sick Politics

Federalism's Decline: A Preexisting Condition of Our Sick Politics
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Our inventions are wont to be pretty toys, which distract our attention from serious things. They are but improved means to an unimproved end.… We are in great haste to construct a magnetic telegraph from Maine to Texas; but Maine and Texas, it may be, have nothing important to communicate. -- Henry David Thoreau, “Walden,” 1854

That quotation from the great American philosopher and iconoclast manages to be both timeless and bad prophecy. Only seven years after his opus was published, men from Texas and Maine were communicating via lead bullets on Civil War battlefields. It turns out Americans did have something important to talk about – slavery in particular – using new media like the telegraph, as well as daguerreotype photography to record events for posterity.

The mood of the country in 2016 seems to be vibrating on a similar frequency to that of the 1850s, with “pretty toys” like social media and the Internet showing us very important things, things that are difficult to digest and accept, especially given that racial inequality lies at the root of Black Lives Matter protests a full century and a half after racial division in the United States was first decided militarily. It’s impossible to argue the shooting death of Philando Castile in Minnesota, streamed live by his girlfriend via Facebook on July 6, wasn’t “important to communicate.”

Given America’s political distemper, there is an obvious desire for a proper diagnosis. It’s not an accident that Niccolo Machiavelli himself compared diseased political systems to “Aetolian fevers” – a malady easy to treat early when symptoms are difficult to notice, but almost untreatable when the sickness becomes easier to detect.

Jonathan Rauch, writing in the July/August edition of The Atlantic, gave as good an effort as anyone recently, using the same literary device as Machiavelli to put forward the theory that politics in the United States has a compromised immune system and is suffering from a type of “chaos syndrome.” This syndrome is essentially a breakdown in a political system’s capacity to properly self-organize.

Rauch reasons that previous political “treatments,” carried out primarily in the 1970s to democratize the country’s political parties and end the opaque political financing system, actually undermined “the immune system that defended the body politic for two centuries.”

These past efforts by reformers looked good on paper. Ending the reign of unelected political middlemen -- the core of urban political organization since Martin Van Buren started modern machine politics in the early-1800s -- was simply good democratic practice, as was making public all political fundraising. Up until the 1970s, some committees in Congress even allowed anonymous voting, with congressmen able to hide their voting records from the public. Thanks to congressional reforms and C-SPAN, those undemocratic backroom behaviors are gone for good.

But sunlight hasn’t been the best disinfectant, Rauch says. Instead, these changes to the way politics operated in the country undermined all the informal pathways that allowed for mediation and compromise, while introducing two types of pathogens against which the political immune system could not defend itself.

The first was the hyper-partisan, anti-establishment, rightward movement of the Republican Party since the 1990s. This toxin is so strong that by 2013, even with a Republican majority in the House of Representatives, Pew Research found that 70 percent of Republican voters are unhappy with their party leaders, compared to only a quarter of Democrats. This situation has undermined all attempts by Republicans to compromise for the fear of being “primaried,” i.e. beaten in a primary by a more anti-establishment candidate, as happened to Virginia Republican Congressman Eric Cantor in 2014.

The second pathogen is more nebulous and difficult to define -- the rise of a population of American voters who either don’t accept or don’t really understand how American civics works. These “politiphobes” might, according to academic research, make up between 25 percent and 40 percent of the U.S. population and aren’t ideological in orientation. Instead, they simply don’t acknowledge that meaningful policy disagreements should exist among the citizenry, while viewing their own political preferences as above reproach. As a result, they believe political solutions should be as simple as electing an outsider who hasn’t been sullied by Washington.

Rauch isn’t the first to highlight this autoimmune disorder of American grassroots politics. A 2010 Pew Research study he cites to spotlight the Republican base’s unhappiness was used in July of that year by Angelo Codevilla, writing in The American Spectator. The article by Codevilla, a former Foreign Service officer and retired Boston University professor of international relations, is considered by many to be the ur-document for explaining the Tea Party phenomenon as it unfolded during President Obama’s first term.

Codevilla theorized that the country was splitting in two, but not along the sectional lines implied by Thoreau’s comments. Instead, it would be along social class lines – the “ruling class” and the “country class” – with the ruling class representing areas and people who were economically tied, either directly or indirectly, to government largess. This group includes all publically unionized labor, as well as big business and Wall Street firms that recovered from the 2008 financial crisis thanks to taxpayer bailouts. The “country class” is everyone else outside the direct influence of federal power.

This means that Democratic politicians are the ruling class’s prime legitimate representatives and that because Republican politicians are supported by only one quarter of their voters… most are aspirants for a junior role in the ruling class. In short, the ruling class has a party, the Democrats. But two-thirds of Americans – a few Democratic voters, most Republican voters, and all independents – lack a vehicle in electoral politics.” -- Angelo Codevilla, “America’s Ruling Class – and the Perils of Revolution,” The American Spectator, July 2010

If this sounds familiar, it should, since it goes some ways toward explaining both the success of Donald Trump and Bernie Sanders and their rhetoric about the “fixed,” “crooked” political system. The fact that Trump won the Republican nomination and Sanders narrowly lost the Democratic nomination confirms the Pew Research findings about the disposition of both parties. Indeed, a separate survey in May found only a majority of Clinton supporters believing the U.S. was on the “right track.” Trump and Sanders supporters felt the opposite.

What Codevilla saw that Rauch misses (perhaps purposefully) is that the degradation of federalism (“states’ rights” has become a pejorative term) over the course of the 20th century is the pre-existing condition underlying the country’s 21st century political illness.

The federal system – the one that started with 13 states along the Atlantic seaboard in the 1700s – existed well before Rauch’s “informal constitutional order” coalesced and acted as the foundation upon which the constitutional order rested well into the 20th century. Since state governments have general police powers, and because the founders wrote the Constitution to give the federal government only “enumerated powers,” it was only when the Supreme Court began reinterpreting the Constitution’s commerce clause in the 1930s and 1940s to accommodate the New Deal that the regulatory power of the executive branch became too powerful for the constitutional antibodies to contain.

Codevilla is highly critical of the role President Woodrow Wilson played as the first major vector through which pathogens entered the political bloodstream. Wilson was the first statesman to argue “that the Founders had done badly by depriving the U.S. government of the power to reshape American society,” he wrote. Early progressive thought concerning the rule of technical “experts” rather than elected representatives was best articulated by Wilson well before his presidency, and the growth of executive power – often with good and noble motives – has led to a usurpation of decentralized authority and the ability of the political system to organically self-organize.

Codevilla said progressives generally want a more straightforward, centralized political system closer to the British Parliament, which ratifies government actions by dint of its parliamentary structure; there are no regional provinces with general police powers in Great Britain.

Yet a parliamentary system wasn’t the design of Congress by the Framers; quite the opposite. This is why James Madison said in Federalist No. 10 that the role of Congress would be to “refine and enlarge the public’s view” of the national interest while leaving much of the protean lawmaking to the state legislatures.

It’s these non-federal police powers that are the reason death penalty and abortion laws are different in each U.S. state. They were also the reason that gun control laws differed significantly from state to state until two recent Supreme Court cases largely ended state-level regulation of firearms.

As a result, Rauch gets his diagnosis wrong by focusing on the vanishing middlemen of the late 20th century. The shifting of the venues of mediation – and the people doing the mediating – from state capitals to Washington, D.C., has undermined the political system’s historic ability to self-organize peacefully.

Unless the political system – and the elites running it – is willing to accept the treatment options inherent in such a diagnosis, the U.S. political system will start to exhibit (if it hasn’t already) a shift from the chronic condition that is manageable to the more acute version of political “chaos syndrome” that calls into question the survivability of the American experiment.

Bill Murray is the editor of RealClearEnergy.

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