Is Federalism the Solution?

The still-undecided presidential election confirms what observers have been saying for years: Politically, culturally, and morally, we’re a fractured republic. “There’s more uniting us than dividing us” rings hollow when different sectors of America are viscerally committed to one or the other interpretation of what we still, tragicomically, call “the supreme law of the land.” As David French observes in his recent Divided We Fall, “there is no single important cultural, religious, political, or social force that is pulling Americans together more than it is pushing us apart.” 

Sober observers have begun to ponder the prospect of secession or civil war. French imagines a “Calexit” sparked by immigration or a “Texit” driven by battles over abortion rights. Riots have given us a taste of the potential for violent disorder, and CHAZ seems a portent of things to come. Aymann Ismail seems to speak for many Democrats when he writes in Slate that he doesn’t want to be united with Trump’s America. Pressure builds, and there’s no pressure valve in sight. 

Trump can’t heal these divisions. If he wins, we’ll face another four years of anti-Trump hysteria from Democratic politicians and the media. Biden can’t do it either. His plan to unite America comes down to putting the “good people” back in charge. 

By filling the Supreme Court with federalists and originalists, however, Trump may have laid the groundwork for a more dramatic solution. In his Calexit hypothetical, French’s Roberts-esque chief justice urges the court to reconsider “the entire doctrine of incorporation” because he senses “the magnitude of the American divide” and seeks “a constitutional method for restoring federalism—by reinterpreting the Fourteenth Amendment narrowly and state sovereignty broadly.” Perhaps the real Roberts court can work a similar magic.

After all, a major cause of our fracturing is the nationalization of divisive moral issues. Instead of leaving abortion to the states, the Supreme Court declared a Constitutional right to privacy that imposed uniform rules on millions of unwilling citizens. In a series of gay rights decisions culminating in Obergefell, the court struck down existing state laws and imposed gay marriage. Over the past century, many other areas of our common life have come under the purview of the federal government. As a result, each of these issues becomes a titanic, rancorous, winner-take-all battle for the soul of America. Neoliberalism used to unite Republicans and Democrats, but that consensus has evaporated. Victories are short-lived, as we lurch from one side of the political spectrum to the other every four or eight years.

Roe could be the hinge of a reversal. If Roe is overturned, no national abortion ban will follow. Rather, states will decide whether to ban abortion altogether, regulate it, or expand abortion rights to de facto infanticide. If the court rejects Obergefell, Alabama, Mississippi, and other states will define marriage as an exclusively male-female relationship, while other states will be free to legalize same-sex marriage, threesome and foursome marriages, marriages to cats, or whatever they like. Some states will outlaw pornography, some will censor it. Some states will permit public libraries to host Drag Queen Story Hour, others won’t. The Supreme Court’s role will be more modest. Instead of (reluctantly or gleefully) playing at being philosopher kings, the justices will often bat cases back to the states to decide in the rough trade of legislative politics and administrative enforcement. 

Renewed federalism could produce a genuinely pluralist America. Each state will run its own moral-political experiment, without direct interference from other states or from a moralistic federal government, as states currently do with drug laws. Such pluralism will be sturdier than our current enforced tolerance, because each experiment will be backed by the institutionalized power of a state. 

As French observes, federalism has a bad reputation because states have used it to oppress racial minorities. In French’s view, a government that is truly federal will protect individuals from the states. States will have to respect the procedural protections of the federal Constitution. They won’t be permitted to exclude dissenters, block voting rights, interfere with religious practice, or “deprive individuals of due process, the right to counsel, or the right to be free of cruel and unusual punishment.”

But French leaves critical questions unanswered. Does protecting individual rights extend to abortion rights or gay marriage? If so, then returning authority to the states solves nothing, because it leaves many of the primary sources of national contention in federal hands. To work, federalism has to be more discriminating about incorporating the Bill of Rights. The federal government will protect some specified freedoms, but will give up searching for penumbras to shelter generalized privacy rights.

And within states, the political temperature will rise. It will be short work for Alabama to pass pro-life and marriage amendments to the state constitution, but in many states, the battles will be intense and prolonged, and may end in polarized standoffs. Washington and Oregon turn from blue to red as one moves east from the coast, and there are pockets of hard-nosed conservatism in California. States may end up redrawing boundaries, with liberal and urban coasts sharing an amoral establishment and leaving rural inland areas to make common cause with the likes of Utah and Idaho. 

Under the federalism French proposes, no one will be pleased. Many Americans will be outraged at the prospect of reversing abortion rights or outlawing same-sex marriage anywhere in America. I will be horrified that any American states allow killing unborn babies or protect sexual perversions. Renewed federalism will require colossal acts of self-restraint; it will be the work of federal officials who recognize that releasing power is the only alternative to the dissolution of America. Is it an improvement to replace one big culture war with thirty or forty smaller ones? If we’re as close to civil war or secession as some think, the answer is “yes.”

Peter J. Leithart is president of the Theopolis Institute.

First Things depends on its subscribers and supporters. Join the conversation and make a contribution today.

Click here to make a donation.

Click here to subscribe to First Things.