One of the great risks of modern civilization is the overconcentration of power in the government. Indeed, most of the 20C was taken up with fighting wars against two forms of totalitarianism: Fascism and Soviet-style Communism. A combination of bureaucratic inertia and accretion, technologically-driven scale economies, national security angst/paranoia and the attractions of the “welfare state” have made modern government increasingly powerful and intrusive in virtually all aspects of modern life. Just because many conservatives have gone off the deep end in terms of their opposition to big government doesn’t mean that their core concern should be discarded. George Orwell’s 1984 was an early warning of the tendency of most forms of the modern state (i.e. “state” in the generic sense of a polity, not the US flavor of a particular lower level government (for which I will use capitalized “State”) to converge. Orwell’s Big Brother” operated in similar ways in all three of the countries he described.
In the US model, our principal defense against this risk is the “separation of powers” and the deployment of governmental powers across three branches with “checks and balances.” But also embedded in the Constitution is the idea that the national government remains limited to the specific powers delegated to it by the document and that the powers not specified remain with the People and the (originally 13) States. Since the original Constitution was created by representatives of independent States, this makes sense: the people created the States and the States agreed to delegate a chuck of their authority to this new federal government.
200+ years of changes in how the world works has flipped this model. Lincoln and the Civil War stand for the proposition that it is the nation that is primary, not the States; and the nature of commerce, regulation, and global security issues have taken care of the rest. However, other than the overriding of the power of the States in the Civil War Amendments (13, 14, 15), we still have a Constitution that pretends that the States are in charge.
A better constitutional path forward would be to recognize the primacy of the federal government, but expressly preserve and enhance the powers of the States. This would provide not only a bulwark against over concentration of power at the national level, but would support one well-established benefits of our current structure: the States as “laboratories of federalism.” The benefits of getting new ideas generated from a variety of sources, and trying them out at a relatively small scale has been repeatedly demonstrated, whether in terms of taxes, regulations, or social policy.
The bigger challenge is to define the sphere of State authority and protect it from federal intrusion, even while ensuring the preservation of individual rights enshrined in the federal constitution. Some policy areas can be most effectively handled at the state level, adapting to local needs and circumstances. I don’t want to have to deal with Washington, D.C. when I have pothole on my street, or get a building permit, or figure out what should be taught in local public schools. Indeed, most of what States do now is in accordance with this approach. However, both education and housing seem to have been taken over by the national government without much clear benefit. Usually, the regulation comes in the form of conditions on a federal transfer payment, but the effect is the same. It would make sense to push the federal government out of much of the operational policy for these areas and, as well, cut federal taxes and let the people of a State decide how much to spend (and tax) in these areas.
Indeed, one insidious effect of our current system is that States have been able to get away with poor tax policies because they get an array of federal subsidies. This is bad economics and undermines the importance of State-level political culture.
It would be important to make clear that the delineated sphere of State responsibility would not be subject to federal intervention, other than to protect Constitutional rights. It would also take some work to clearly demarcate between the two jurisdictions at an operational level in whatever spheres were carved out.
From a theoretical perspective, instead of the current model we would have a system which recognized that the power flowed from the People to both the States and the federal government, not (as now) only indirectly to the federal government via the States.
Another interesting benefit would be in the configuration, administration and operation of State governments. Work-arounds, such as the Port Authority of NY & NJ show that our current metropolitan areas demand coherent management. The economic and cultural lives of people in Gary, Indiana, or Arlington, Virginia, or Vancouver, Washington, or East St. Louis, Illinois all attest to the deleterious effects of being stuck with our current state boundaries. Our current dependence on State configurations as the basis for Congressional representation has stifled the logical arrangement of the States in terms of meeting the needs of the population as it is distributed in the 21C. Splitting overly large States (e.g., California, Texas and Florida) and reconfiguring around our modern urban-centered way of life could also improve how States need the needs of their citizens.
All of this is interesting and radical and worth thinking about. But if we’re going to have an underlying constitutional arrangement that meets our needs, rather than those of our 18C predecessors, this should be part of the mix.