The Efficacy of States

by Brien Jackson

Matt Yglesias and Ezra Klein both wrote posts recently that I thought were pretty good fisking of the whole concept of states as individual governing entities. I haven’t seen any wingnut response yet, but John Patashnik took what, to my mind, was a very unconvincing stab at defending states. A few quick things to deal with at the beginning, starting with the lead in:

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.

If you have to start your “defense” with such a sophomoric sentence as this, you probably don’t have much of a case, such as it were. Just saying.

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 offensiveTenther” 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.

I don’t know what Patashnik finds “mildy offensive” about “tenther,” but that last bit is about as gross an understatement as I’ve read in quite sometime. It’s worth clarifying exactly what sort of “states’ rights” we’re talking about here. To wit, no one is arguing over the states’ authority to issue dog licenses or set speed limits or levy sales taxes within their state, we’re talking about a “movement” that, based upon an incredibly broad reading of the 10th amendment, holds that nearly everything the federal government does is un-Constitutional. What’s more, they come to this conclusion based upon an overwhelmingly narrow reading of pretty much every other provision of the Constitution save for the 10th amendment (I once had someone insist to me that the 10th amendment gives states the authority to decide what unenumerated rights are protected by the 9th amendment, even though Article III explicitly grants the power to decide questions arising under the Constitution, of which the 9th amendment is indisputably a part, to the federal judciary), and would never extend such latitude to, say, the taxation/general welfare clause in Article 1 Section 8. In other words, “tentherism” isn’t some good faith interpretation of the Constituion, it’s a convenient way of constructing an argument such that it arrives at the desired conclusion of the person making the argument, with no real backing in the text itself. But I digress. This is the meat of Patashnik’s defense:

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.

[…]

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.

Pardon my French, but this is nothing but a bunch of bullshit. It’s lazy bullshit at that, and it’s an especially pernicious brand of bullshit that really pisses me off. Is Patashnik right with his “this is exactly what the states were afraid of” formulation? Yes, of course he’s right. But so what? The idea that people living in the United States are inextricably bound by what anyone said, did, wrote, or thought 200 years ago is ridiculous. I’ve got plenty of admiration for the system the American founders created, but by no means do I think it is or was perfect. More importantly, they didn’t think it was perfect. And they imagined that subsequent generations might want to change some things, and they were ok with that. It’s one of the only reasons the Constitution has survived so remarkably long as a governing document (its completely subjective nature in parts being probably the biggest other factor as well).  Patashnik’s view is one that completely rejects the entire notion of self-determination, and dismisses the notion that free people should be able to decide how they want to arrange their government. Whether you agree with his positions on states or not, this simply isn’t, to my mind, a legitimate argument, and the fact that this is the go-to argument makes me think that Patashnik doesn’t really have much of a substantive defense of states to offer, which isn’t helped by this later retort either:

My own view is that such radical and wholesale changes are per se inadvisable.

Obviously Patashnik wouldn’t be alone in this, but again, it’s a pretty lazy conceptual view of things, to simply dismiss any “radical or wholesale changes” out of hand as “per se inadvisable” without actually, you know, weighing the merits thereof. I’d be curious to know what other “radical” changes Patashnik would have been opposed to at the time. The end of the slave trade (which the slave states explicitly put off limits to Congress for a certain amount of time in the Constitution as well, by the way)? Brown vs. Board of Education? Direct election of Senators? The Civil Rights Act? Women’s suffrage? Inquiring minds want to know. Finally:

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.


Except, here’s what Matt actually said:

But 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. It’s easy to think of kinds of issues that Arlington County, Virginia should address on its own without input from people who live in Norfolk, VA or Montgomery County, Maryland or Boise, Idaho. These are your local government responsibilities. And it’s also easy to think of issues that should be decided in common between Arlington and Norfolk and Montgomery and Boise. These are your federal responsibilities. But it’s very hard to think of what kinds of things should involve Arlington and Norfolk, but not Montgomery County. Conversely, it’s pretty easy to think of things that should involve Arlington County and Montgomery County but not Norfolk or Boise. These would be metropolitan region issues.

In other words, of course there are issues that probably are best hashed out locally, and obviously things that make no sense to work out on the federal level. No one I’m aware of is making the argument that there shouldn’t be any local government. Quite the opposite in fact, Matt is basically arguing that the centrality of state government is bad for local governance, because by and large, the constituencies therein don’t really make any sense for the governed. Someone in Silver Spring has a lot more common issue with someone in Washington D.C., or even someone in Arlington, than they do with someone in Cumberland, and yet they don’t have any metropolitan government handling issues relevant to the entire D.C. area, but they’re lumped in with a state government with people in the Maryland mountains, Eastern Shore, Baltimore, Annapolis, etc. A system that included city government, metropolitan governments, and maybe even county or regional governments could all make plenty of sense as it relates to foreseeable issues that will need to be hashed out at a level below the federal government, but there’s no reason all of this has to be hashed out based upon largely arbitrary lines drawn on a piece of paper that lump people in New York City in with people in Syracuse while leaving out people in Secaucus. And the fact that Patashnik can’t even address the actual point being made speaks volumes about the difficulty involved with defending that arrangement.

But you know, we decided to do it this way two centuries ago, so we’re basically stuck doing it the same way for all eternity. What happens in the 18th century doesn’t stay in the 18th century.