I never thought I'd write a blog post defending the existence of states--at least no more than I thought I'd write one defending the existence of, say, brunch or toilet paper. But Matt Yglesias and Ezra Klein have the laboratories of democracy squarely in their crosshairs. In Ezra's words, "I just don't consider states to be a particularly useful political unit." And this, sadly, isn't an isolated sentiment among liberals these days. Look no further than the popularity of the mildly offensive "Tenther" label--as if states' rights are just a wacky conspiracy theory and people who believe in them are as delusional as the birth certificate/death panel crowd.
There are any number of reasons why this level of disrespect toward states is excessive. The most important centers on a concept conspicuously absent from Matt and Ezra's posts: sovereignty.
The "what good are states?" view makes some sense if you regard the federal government as the fundamental political unit in America, and the states as nothing more than sub-national governmental units established for convenience's sake. But that's simply and indisputably not the way our system was established and not the way it works. To view states in that light is un-American (in the literal sense, not the pejorative Glenn Beck sense). As Justice O'Connor put it, "States are not mere political subdivisions of the United States. . . . [t]he Constitution instead leaves to the states a residuary and inviolable sovereignty." States are not a means to some administrative end; within their sphere of sovereignty, they are the end. In joining the Union they gave up certain powers, but they retained everything else. To question that is to propose a system radically different from one we have.
Here's Ezra:
[S]tates were given a lot of power because that was the only way to entice them into joining a union. It was a coldly political compromise. It's good we got that done, but some of the structural concessions that were required don't make that much sense in the 21st century. Not that "does this make sense?" is a particularly powerful consideration in our system.
The use of the passive voice here is interesting. States "were given" a lot of power. Who gave them the power? The answer is that the states themselves did, because states predate the federal government and the adoption of the Constitution was a state-based phenomenon. As Madison put it in Federalist 39:
[T]his assent and ratification [of the Constitution] is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act. . . . Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.
Maybe it's just me, but the bait-and-switch Ezra apparently envisions seems pretty unconscionable. Back in the day, states were concerned that at some point in the future the federal government would try to usurp their sovereignty, so they wrote very strong protections for themselves into the Constitution. Now, in 2009, along comes a chorus of voices proclaiming that, from a national perspective, that arrangement doesn't "make sense," so we should consider changing it. Well, of course! That's precisely the concern the states had back then. The underlying premise of our federal compact is that we're not concerned solely with what "makes sense" for the nation as a whole; the interests of each state deserve independent respect. On one level a Vermonter and a Californian are equal as Americans--but on a different level, a Vermonter and a Californian are qualitatively different, and we don't simply tally up which group has more people. It's comparing apples and oranges.
Probably the best context in which to think about this is the organizational structure of the Senate. Criticism of that structure spans the political spectrum. In Gary Becker's words, "The Senate is an anachronistic byproduct of the original concept of a federation of states since in the modern world the federal government dominates state governments." Again, though, this hardly demonstrates that the Senate is an anachronism. It demonstrates, rather, that small states were prescient in insisting on equal representation in the Senate, out of fear that the federal government would, in the future, threaten to overwhelm them. As that fear has come to pass, state equality in the Senate has become, in many ways, a final safeguard of some measure of state autonomy. Small states were (rightly) so concerned that their interests would be ignored in a more federal-centric future that they made equal representation in the Senate the only perpetual feature in the Constitution that cannot be amended. It's the one institutional reform that would literally take a revolution in our constitutional order to enact.
My own view is that such radical and wholesale changes are per se inadvisable. Maybe, though, you disagree. Sovereignty and historical precedent aside, what normative justifications are there for retaining the role states play in our system?
First, it's not entirely clear what the alternative is. Matt says, "a big part of the problem here is that it’s difficult to think of what kind of issues are actually well-suited to be dealt with at a state level." This is somewhat surprising to me. What about the basic, bread-and-butter questions of governance that states currently deal with? For instance, what should the punishment for murder be? How much money should teachers make? How should the car insurance industry be regulated? How about marriage, divorce, inheritance, and adoption?
These questions are too local in character to merit federal involvement; in a vast and diverse nation, trying to settle these debates in Washington is as hopeless as it is unnecessary. Plus, there are the usual considerations about the benefits of state-level policy experimentation that liberals, in particular, should value. At the same time, these aren't the sort of municipal- or metropolitan-area-based decisions (about things like transit or land use) that need to be made on an even more local scale. As confusing as it can be to have 50 states making policy in these areas, it would be far messier to have several hundred smaller governmental entities doing it. What you'd want, it seems to me, is a moderate number of reasonably sized jurisdictions whose residents share at least some sense of identity, values, and commonality of interest. (And, for the record, autumn is a strange time to be asking whether state identity still exists. Go ask the 102,000 people who packed themselves into Ohio Stadium last Saturday, or the other 102,000 in a sea of orange in Neyland Stadium in Knoxville.)
This, again, isn't to say that if you were drawing states from scratch you'd come up with exactly what we have now. Maybe you'd come up with 30 or 70 instead of 50. Maybe you'd think about uniting, say, western Washington and western Oregon into one state, and lump eastern Washington and eastern Oregon in with Idaho. Surely you'd want to do something--anything!--about California. My point is just that the current alignment of states isn't that far off from what you'd probably come up with.
But what's the normative justification for having states of such wildly different population, given the structure of the Senate? How can it be an affirmatively desirable thing, rather than just an unfortunate but tolerable consequence of state sovereignty, to have some areas so overrepresented in the Senate?
This, admittedly, is a harder question to answer. But I do think there's at least something to be said for it. Consider this in the context of the cap-and-trade debate. Clearly, one of the main reasons cap-and-trade will be a tough sell to the Senate is that states that would suffer disproportionately from limiting carbon emissions tend to be somewhat overrepresented there. Let's suppose some sort of cap-and-trade system is, on balance, good for the nation as a whole, even if it's bad for those states. That doesn't settle the distributionary question of how the burdens of adjusting to a low-carbon economy should be shared across states. It seems unfair to force residents of sparely populated states with carbon-intensive economies to bear most of the costs of adopting a policy designed to benefit the nation as a whole. Giving the residents of those states equal representation in the Senate doesn't mean that no cap-and-trade scheme will be adopted--it just means that whatever scheme is adopted will involve enough side deals (for instance, giving an extra initial allocation of emissions permits to dirty-energy states) to help equalize the sacrifices states make. Sure, this leads to legislation that can be derided as a Christmas tree or a giveaway to entrenched interests. But it's also arguably more fair that simply letting geographic majorities stick it to less-populated areas of the country.
It's true that no other type of minority--racial, religious, sexual, ideological, or economic--gets this sort of constitutional protection (though some get greater protection from the judiciary than geographic minorities do). And, maybe, residents of sparsely populated states don't deserve quite the level of power they have now--having them overrepresented in a legislative body with a de facto supermajority requirement is probably a bit too much. But geographic minorities have a special place in American history. After all, the Union came close to dissolving along geographic lines, something that can be said of no other demographic cleavage. And the West developed in no small part because of the tireless efforts of senators like Arizona's Carl Hayden and New Mexico's Clinton Anderson--whose influence flowed precisely from the Senate's egalitarian treatment of states. The region and the country are better off as a result.
None of this is to suggest I agree with the more extreme elements of the states' rights movement. The shift in power toward Washington over the past century was inevitable, and, on balance, probably a good thing. But, just as those on the right who would like to deny the federal government its constitutional prerogatives are mistaken, so are those on the left who want to do the same to the states.