Few aspects of the American governmental system go as unquestioned as federalism — the division of power between federal and state governments. Many people are concerned about an unrepresentative Congress, a Presidency with excessive powers, and an unaccountable Supreme Court. But hardly anyone thinks to cast a critical eye on federalism.  Most Americans remain largely oblivious to the political problems caused by this arrangement.  But we need to ask ourselves this question:  If federalism is so great, why have most other developed democracies explicitly rejected it?  The answer is that while federalism may have some political advantages, it creates unequal treatment of citizens, increases the power of special interests, encourages minority rule, and undermines democratic values and processes.

What is Federalism?

Our constitution clearly establishes federalism as a central feature of the American political system.  Various parts of the constitution enumerate the powers of the federal government, and the tenth amendment then specifies that all other powers are to be exercised by the states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This effectively creates a two-tiered system of government, with each tier having its own independent powers.  And despite what most people think, most policymaking takes place on the state, not the federal level. For example, almost all criminal law, property law, and contract law is made on the state level.  We in effect have 50 different legal systems – and 50 different educational systems, tax systems, and so on.

The More Popular Alternative:  The Unitary State

In contrast, most other Western democracies have what is called a “unitary state.”  In this system, the central federal government has ultimate power in all policy areas.  The result is a much greater uniformity in laws and policies. Typically, for example, all citizens are subject to the same legal system, all schools share the same core curriculum, and everyone is eligible for the same government benefits. The central government may delegate some powers to sub-national governments, like states and cities, but those powers can be revoked at any time.

Are State Governments Really Closer to the People?

Most Americans are never told about the disadvantages of federalism – only its advantages.  We are told, for instance, that federalism actually improves the quality of democracy by placing important government functions closer to the people.  State governments are thought to allow for more access for citizens and to encourage greater involvement in the processes of government and thus more public control over policymaking.  This idea that state governments are “closer to the people” was part of the reasoning underlying the Supreme Court’s decision to overturn Roe v. Wade and turn the decision about abortion access over to state legislatures.

But in reality, the evidence shows that the link between the state citizens and their legislatures is actually a weak one.  Most people have little involvement with their state government and know little about its workings.  80% of Americans do not even know who their local state representative is.  And of those 20% who do know, only 15% of them can actually name two issues their representative stands for.  In addition, aside from a few well publicized issues, few people know what their state legislatures are up to. These institutions operate largely in the dark. In part this is because the media pays little attention to state legislatures and most newspapers have been cutting back on reporters who cover that beat.  Needless to say, it’s hard for the public to hold these policymakers accountable if they don’t know who they are and what they are doing.

To make matters worse, few people have a strong interest in participating actively in state elections.  In off-year elections, only about 25% of potential voters actually go to the polls to elect their state representative.  And probably only about 15% of those people actually vote for the winning candidates, so there is nothing really resembling a popular mandate for these state legislatures.

The democratic nature of state elections is also undermined by the fact that huge numbers of voters have no real choice of who will represent them.  In 2022, 40% of the races for 6,278 state legislative seats were uncompetitive, with only one of the two major parties putting up a candidate.  The main culprit here is rampant gerrymandering that creates state legislative districts that are so dominated by one party that the other just gives up. Public ignorance, low turnout, and lack of choice clearly undermine the rosy view of state politics as a realm where the citizens rule.

The Real Political Beneficiaries of Federalism

Defenders of federalism like to argue that the states give citizens an additional point of access to policymakers, beside those on the federal level. But what they fail to mention is that there are other groups besides ordinary citizens who are much better equipped to take advantage of this access. In particular, business organizations and powerful lobbying groups funded by the wealthy are able to exert out-sized influence in state legislatures.

Because of their substantial monetary resources, businesses are in a great position to exert power on the state level. Businesses not only spend large amounts financing candidates on the federal level, but also on the state level as well, where their contributions are even more effective.  As seen in another article on this site, corporations now dominate the lobbying process on the federal level.  But this is also true on the state level. Big corporations can afford to fund substantial operations aimed at state legislatures to lobby for lower business taxes, anti-union laws, and so on.  Most state citizens and citizen groups cannot match these political resources and thus are unable to participate as effectively in state government.

More disturbing is that corporations can use their critical role in local economies to engage in political extortion. Large businesses can threaten to move out of a city or state unless these governments acquiesce to their political and economic demands.  And corporations do not hesitate to take advantage of this unique form of power. For instance, it has been long known that many big corporations have successfully won substantial tax breaks and subsidies by threatening to move if they don’t get them.  Boeing received over $8 billion in breaks and subsidies to stay in Washington State.  And Alcoa Aluminum received over $5 billion in taxpayers’ funds from New York State.

Less well known is the common practice of using the same threat to get states to abandon efforts to raise corporate taxes, encourage unionization, strengthen workplace safety rules, or tighten environmental requirements.  Few state legislators can ignore the economic devastation caused by large employers moving out of state and feel an ethical obligation to protect their constituents from these economic damages.  In the end, the result is a “race to the bottom” by some states that compete to cut corporate taxes and weaken protection for workers and the environment in order to attract the sizable businesses they need to provide economic prosperity for their citizens.  In most other democracies, which do not have federalism, laws governing corporate tax rates, environment regulations, and workplace requirements are made at the national level and are uniform across the country– so there are no regional variations that allow corporations to play them off against one another.

Another powerful political weapon in the corporate lobbying arsenal is ALEC – the American Legislative Exchange Council.  This lobbying organization has worked, often under the radar, to pass thousands of business-friendly bills in state legislatures. ALEC boasts having 2,000 state legislators and dozens of the biggest businesses in America as members.  They meet to draft model pieces of legislation that are then introduced to state legislatures and promoted by the ALEC network.  To sweeten the pot, ALEC corporate backers have also donated hundreds of millions of dollars to state legislative races.  ALEC itself estimates that it introduces up to 1,000 corporate-written bills a year, with about 20% of those becoming law.

Those laws represent a most-wanted list of issues on the corporate/conservative political agenda.  They include laws to oppose workers paid sick leave, stop raises in minimum wages, fight workers’ right to overtime pay, undermine environmental protections, promote anti-union “right to work” laws, weaken workplace safety rules, and cut taxes for corporations and the wealthy. No wonder Newt Gingrich has called ALEC “the most effective organization” for conservatives. Gordon Lafer, in his book on corporate political power in the states, has pointed out that in its own promotional literature, ALEC has explained to potential corporate donors that their “investments” in ALEC would pay off handsomely, saying that “nowhere else can you get a return that high.”

ALEC is also a player in fomenting the “culture wars” in Red states. For example, they have worked hard to put attacks on Critical Race Theory on the agenda in state legislatures.  In reality, CRT is a well-established academic concept that racism is not merely the product of individual prejudice, but also something embedded in legal systems, policies, and institutions that uphold or reproduce racial inequalities.  But in one ALEC summit meeting, a speaker charged that CRT was “the greatest threat to American democracy since the Civil War.” These efforts by ALEC help to explain why, despite the fact that only 27% of Americans think that there is too much emphasis on race in schools, anti-CRT bills have been passed in 15 states and proposed in 42.

And ALEC is not alone.  It often works hand in hand with another set of state-level organizations funded by big business and ultraconservative billionaire families like the Kochs, the Waltons, and the Coors:  the State Policy Network (SPN).  SPN is a web of conservative think tanks located in all fifty states.  They distribute research reports and media commentaries that promote the pro-business, anti-union, anti-environmental, pro-private school, and anti-tax positions of the far right.

The effect of the political efforts of corporations and well-funded right-wing lobbies has been to encourage legislatures, particularly those in conservative states, to pass laws that do not represent the views of the public.  It is revealing that while Red states have lurched further and further to the right, public views on most policy issues have remained constant, with a bi-partisan majority supporting access to abortion, higher minimum wages, strong environmental rules, and opposing cutting taxes for the wealthy and corporations. Again, all of this suggests that federalism is not empowering average citizens, but instead is giving monied interests more influence over public policy in the states.

Another Problem with Federalism: The Unequal Treatment of Citizens

Imagine you lived in a country where the legal system punished women more harshly than men for the same crime, or single people more harshly than married individuals.  You would undoubtedly condemn such practices as being unfair, unequal, and unethical.  But federalism does much the same thing – except how badly (or how well) people are treated by the government depends entirely on where they live.  The average sentence for a drug offense in Arizona is 17 months, while in Iowa it is 111 months – six times longer. Whether you can be put to death by the state for your crime depends on which state you committed it in.  In some states, an unarmed person can be shot down by a civilian who claims to feel threatened, but not in other states.

Rights can also vary from state to state – like the right to vote. Some states are making it easier for people to vote, while others are making it increasingly harder. The availability of vital services is also tremendously variable between states. The quality of public education differs a lot – denying equal opportunity to poor students in many states.  The accessibility of abortion services also greatly depends on the individual states.  In addition, as the historian Nancy MacLean has noted, having federalism means that your life expectancy will be different depending on which state you live in.

Public health researchers have found that since federal powers were devolved to the states, beginning in the Reagan era, even life expectancy has diverged sharply according to which party controls state government. In 1980, the difference in life expectancy at birth in New York and Mississippi was 1.6 years; now it is 5.5 years. As New York’s life expectancy has approached Denmark’s, Mississippi’s has slid down to Romania’s. The “excess deaths,” as the field refers to them, result from policy choices. If you live in a red state, you now can expect to die earlier than you would in a blue state.

A good democracy requires equal treatment of citizens, but this is exactly what we are not getting with federalism.

Donald F. Kettl, in his book, The Divided States of America: Why Federalism Doesn’t Work, has documented how federalism has also worsened economic inequality in the United States – which is already at a higher level than any other advanced democracy.  He found that there is a great deal of variation in economic prosperity across states:  some, like Connecticut, are well off; while others, like Louisiana, are much worse off.  This affects the ability to provide vital government services, especially to working class and poor citizens.  People in poor states get lower welfare payments, less access to medical care, inadequate schools, crumbling infrastructure, and less protection from pollution. All of this contributes to more suffering and less economic mobility for citizens of these states.

Focusing in on what has happened with welfare policy reveals a particularly disturbing example of what goes wrong when we give increasing power to the states. In the 1990s, welfare policy was renamed Temporary Assistance to Needy Families and the program was switched from the federal level to the state level. States now get a federal cash grant of TANF funds and they have a great deal of flexibility on how to spend them and on who – all supposedly in the spirit of increasing experimentalism in poverty policy on the state level.

But the results have been particularly discouraging – especially for the poor in some states. The federal government does not require the states to spend all the TANF grants on cash assistance to the poor.  State budgets are notoriously precarious, especially in economic downturns, so it is not surprising that many states routinely divert TANF funds intended for needy families and use them to fill holes in their general budgets, or even to fund tax cuts for the non-poor.  Louisiana, for instance, only spends about a third of its allocated state and federal TANF funds on cash assistance for poor families.

Even worse, some states have made it much harder for needy families to get TANF or to stay on it. At the start of TANF in the 1990s, 68% of the poor received TANF cash assistance.  Today that figure has plummeted to only 22% – the lowest in the program’s history. And it varies tremendously by state. In 16 states 10% or less of the poor are getting TANF benefits. And, not surprisingly, studies show that these families left off of assistance are worse off.  Even less surprising, the states where the poor receive the stingiest assistance are highly correlated with two factors:  Republican control of state government, and a higher percentage of African Americans needing assistance.

Sometimes these large discrepancies between government services in different states are by design. Some Republican-dominated legislatures make a priority of cutting taxes and slashing spending on schools, medical care, roads, social welfare programs, etc.  However, much of the unequal government services made worse by federalism is not always this intentional, but simply due to the poorest states not having the public resources necessary to provide adequate government services. Nevertheless, the disturbing result, as Kettl concludes, is that “The quality of government services – and the quality of life – increasingly depends on where Americans live.”

Importantly, this kind of unequal treatment of citizens is rare in countries with unitary states that have laws, funding, and government programs that are largely centralized on the federal level.  This ensures that all citizens, no matter where they live, are treated more equally, subject to the same laws and same punishments, and receive the same essential government services.  These centralized governments can move funds from richer to poorer areas to ensure that everyone has the same quality schools, medical treatment, and economic opportunity. It’s a shame we can’t say the same thing about this country – and it is a high price to pay for federalism.

A Political Bias Toward the Status Quo and Minority Rule

If one looks at how federalism has functioned throughout our history, it has most often worked to impede social and political reforms favored by the majority of Americans. Decentralized power in the states gives opponents more opportunities to obstruct or ignore national mandates for reform. Decades of delay in giving civil rights to minorities is a classic example of this problem. The states’ rights movement was able to preserve discrimination and the oppression of African Americans in large parts of the country for a hundred years after the Civil War.

Today, federalism is allowing states to drag their feet in other areas of policy reform as well. For instance, polls now show that a majority (60%) of Americans prefer life imprisonment over the death penalty.  And yet we remain the only advanced Western democracy to still practice this arcane punishment – with 30 states having the death penalty still on the books.  In these other countries, abolishing the death penalty usually took a vote in just one national legislative body.  In the U.S., to get rid of it nationwide, we need the approval of 99 state houses and senates (Nebraska is unicameral) and 50 governors. Such are the obstacles to change posed by federalism.

Universal healthcare is another example of how state power can serve to impede policy reforms.  We are alone among major western democracies in not providing affordable health care for all citizens.  The Affordable Care Act (Obamacare) took a major step forward in extending coverage to millions of previously uninsured Americans.  An important part of this plan was the extension of Medicaid coverage in the states, with the federal government paying for 90% of the costs – a policy that is supported by 57% of Americans.   But 24 Republican controlled states have refused to do so, leaving millions of people in these states without affordable health care.  It has been found that between 2014 and 2017, 15,000 people died prematurely because of these states’ decision not to expand Medicaid coverage.

For many political scientists, these issues illustrate how federalism is another example of the ways in which American government often allows the minority to rule over the majority.    William H. Riker, one of the foremost authorities on federalism, argues it is a mistake to believe that it promotes freedom by reining in the power of the federal government.  Federalism “may actually promote tyranny by its constant frustration of majorities,” and “is an impediment to freedom.”

Stifling Constitutional Reform

Another way that federalism slows political reform and frustrates majorities is its effects on the constitutional amendment process. To pass, an amendment must get the support of two-thirds of the House and Senate and then three-quarters of the states.  This extra step of state approval has been the graveyard of many good amendments, including a child-labor amendment in 1924, an amendment to make Washington, D.C. a state in 1978, and an equal rights amendment in 1982.  Disturbingly, a small minority of the states control the amendment process. It only takes 13 states, constituting as little as 4% of the population to block an amendment.  As discussed elsewhere on this site, the need for state approval and the fact that it requires a uniquely difficult three-quarters supermajority is part of what makes our constitution the hardest one to change of all major democracies. Most of these other countries are unitary nations that don’t have sub-national units like states that are part of the amendment process, and if they do, the supermajority needed for passage is lower.

Laboratories of Democracy or Laboratories Against Democracy?

One argument for federalism is that it allows states to experiment with different policy approaches that, if successful, can then be adopted in other states. State governments are seen as “laboratories of democracy” and a force for progress. For example, the state government of California has led the way in more stringent environmental regulations. And some state governments have been pioneers in other areas, such as the legalization of marijuana and gay marriage. It is clear that sometimes when citizens become frustrated by the constant gridlock in Washington and the impossibility of policy reform on that level, they turn to state governments for the solution.

This kind of policy experimentation can be an advantage of federalism. But it is important to realize that there is a dark side to this process. As political scientist Jacob Grumbach has documented, the states have now become what he calls “laboratories against democracy.” Conservative legislatures in some states have been conducting experiments in discouraging democracy, and these practices have been rapidly spreading to other Red states.  As a result, state legislatures are now the center of efforts to undermine basic democratic principles like fair representation and majority rule. The most obvious examples of this are in voting and elections.  As changing demographics have made it harder for Republicans to win the majority of the vote, they have adopted the tactic of rewriting election rules to skew elections in their own favor.  And as Grumbach has explained, federalism has aided in this effort to undermine democracy.

Federalism makes it easier for political actors to tilt the rules of American democracy, itself, to their advantage.  Antidemocratic interests need only to take control of state government for a short period of time to implement changes that make it harder for their opponents to participate in politics at all levels – local, state, and national.

Central to these efforts have been policies to discourage Democratic voter turnout.  These voter suppression tactics include: strict voter ID laws, cuts to early voting, making registration more difficult, mass purges of voter rolls, eliminating mail voting, and limiting campus voting. In Georgia, lawmakers have even made it a crime to provide food and water to voters standing in line at the polls — lines that are typically longer at polling stations in minority neighborhoods. In the last ten years, states have passed almost 100 laws restricting voting.

Red states have also begun to attack the use of citizen initiatives and referendums – a valuable form of direct democracy in many states.  In recent years, a majority of voters in deeply conservative states have used referendums to pass progressive policies, including protecting the right to abortions. In reaction, irate Red state legislators in Ohio, Missouri, Arizona, and North Dakota have begun introducing laws that would discourage this kind of citizen lawmaking.  Their tactics include adding more stringent signature requirements, raising the threshold necessary for ballot measures to pass, and increasing fees to file initiatives.  As researchers for the Brennan Center have observed, “State officials’ efforts to thwart citizen initiatives do not take shape in isolation. They are part of a larger antidemocracy blueprint—yet another example of state officials trying to manipulate the rules of elections and obstruct the will of voters.”

There is another state-level anti-democratic Republican experiment that has also gone viral. Fueled by false claims that the 2020 presidential election was stolen, Red state legislatures are passing laws to strip state and local election officials of their powers and enable politicians to overturn the results of elections. Twenty-three laws have been passed in 14 states that enable state politicians to take control of county election boards, strip secretaries of state of their executive authority, or make local election officials criminally or financially liable for even technical errors.  As Colorado Secretary of State Jena Griswold has explained: “Some elected officials didn’t like the results [of elections], so they’re trying to rewrite the rules. This is a breakdown of what it means to live in the United States. It’s an attack on democracy. It’s an attack on the idea that Americans get to choose their elected officials.”

In addition, when voters speak their mind and elect Democratic politicians, some Red state legislatures have acted to reduce the power of those new policymakers. In 2016, Democrat Roy Cooper was elected governor in North Carolina in a clear mandate from voters for a new political direction.  In response, the Republican-led state legislature called an emergency session after the election and passed legislation that substantially curtailed the powers of the incoming governor –for example, cutting the number of state employees under his jurisdiction by two-thirds.  Inspired by this example, vindictive Republican legislators in Wisconsin held a lame-duck session after a Democratic governor was elected there in 2018 and passed several new laws limiting his powers and making it very difficult for him to deliver the policies that the public had just voter for.

All these are examples of the same disturbing political phenomenon: when democratic elections don’t produce the outcomes that Republicans want, they try to subvert them and frustrate the public will.  And it is federalism – which puts the power to make election rules in the hands of the states – that is enabling these efforts and encouraging them to spread. It’s important to understand that worldwide, it is very unusual to give sub-national governments, like states, power over election rules. Most other advanced democracies have unitary governments that ensure that all citizens operate under the same federal elections rules no matter where they live. And the enforcement of those rules is in the hands of independent, non-partisan election administrators, not politicians. So those democracies are not suffering from the same kind of attacks on voting rights and fair elections that we are seeing in the United States.

The Rise of Radical Federalism in the Courts

Republicans have also been trying to re-define federalism and further hobble the federal government through the courts. In recent years, libertarian legal scholars and powerful conservative legal groups like the Federalist Society have been pushing a plan to undermine the power of Congress vis a vis the states and radically rewrite the rules and practice of federalism in the United States.  This legal offensive focuses on reinterpreting the Commerce Clause in the Constitution.  This clause gives Congress the power to “to regulate commerce . . . among the several states.”  Before the 1930s, the Court interpreted this clause extremely narrowly and in fact used it to shut down some early New Deal programs.  But the Court eventually adopted a broader interpretation of what constituted “commerce” and this made possible the many large federal efforts we know today, like Social Security, civil rights laws, Medicare and Medicaid, environmental protection, business and banking regulations, and so on.  It has become routine for Congress to use this clause to justify exercising legislative power over the activities of states and their citizens.

But in recent years the Supreme Court has begun to discard this long-standing legal interpretation of the Commerce Clause and start to narrow it in a way that could severely restrict the activities of the federal government. As Brian Beutler explained in The New Republic:  “a small band of determined legal academics has set out to persuade the Supreme Court to undo the New Deal—and have almost won.” In fact, this new narrow interpretation has already been used in several key federal cases.  The Court has overturned Congressional laws seeking to clean up hazardous waste, restrict firearms in school zones, and discourage violence against women.  The Commerce Clause was also the basis for invalidating an important part of Obama’s Affordable Care Act.  The Court ruled that Congress exceeded its powers under the Commerce Clause with its “individual mandate” that would have required uninsured individuals to secure health insurance in an attempt to stabilize the health insurance market.

As Adam Cohen, author of Supreme Inequality, has warned, this radical right-wing legal movement “says that, basically, all of the large social programs that were created during the New Deal, the social safety net, is unconstitutional, that it exceeds the power of Congress. We could see a radical conservative Supreme Court in a few years actually striking down things like the federal minimum wage.”  In short, this new vision of federalism is a threat to the centralized regulatory powers and social welfare programs that are an essential part of modern government and a well-functioning society. These strong and popular federal programs form the backbone of all modern democratic states and nowhere else are they under attack in the courts the way they are in the United States.  Only here.

Our States Do It Better

Many Americans would undoubtedly think that a unitary model of government, with most power centralized on the federal level, would be unacceptable here.  Isn’t it un-American? Well no, it is actually very American – at the state level.  Internally, all states are effectively unitary governments.  There are local governmental entities, like counties and cities, but they only exercise the powers given to them by state governments.  They do not share powers with the state government in the same way states share power with the federal government.  They each don’t have their own separate criminal and civil law systems, social welfare programs, or environmental regulations.  It would be a recipe for chaos and inefficiency. So in the U.S., we actually have fifty unitary governments and just one federalist one.

Of course, in practice, states allow many cities, especially large ones, to develop their own laws to govern such things as the form of local government, provision of city services, maintenance of local parks, etc. – but this is purely at the discretion of the state governments and the state can usually take back those powers anytime they want.  Interestingly, few Americans are strenuously objecting to this use of the unitary model on the state level.  It seems to work well on this level, so why is it so unthinkable on the federal level?

Other Democracies Do It Better

Most other advanced Western democracies have explicitly chosen to not follow the American federalism model and are unitary states, with most power vested in the nations’ central governments. Some of these countries have delegated some power to regional governments, but the central government retains overall control and can revoke that power at any point – similar to our state governments.

These unitary governments are not plagued with democratic problems we’ve seen with our federalist system.  Corporations don’t have the opportunity to play regions off of one another.  All citizens have the same rights, are subject to the same laws and penalties, and receive the same government benefits.  Regional minorities are not able to frustrate the national majority when it comes to important social and economic reforms.  And they are not suffering from the same kind of state-level attacks on democratic values and processes that we are experiencing. It’s a major reason why these countries are way ahead of us in providing universal and reasonably priced health care, more effective safety net programs, and more consistent and extensive environmental and global warming regulations.

It’s worth noting that a few European countries do have federalism, but it takes a much less radical form that it does in the United States. In Germany, for example, some policymaking power is relegated to the “lands” or states.  But the constitution states that “Federal law shall take precedence over Land Law.” The constitution also requires a “uniformity of living conditions in the federal territory,” which limits the ability of lands to go their own way in important policy areas.  So while there are some regional inequalities between these lands, they are not as large or pernicious as what we have in the U.S.

So when compared to most other advanced democracies, the United States is on the far end of the political spectrum when it comes to federalism and the decentralization of policymaking power.  These other countries obviously believe that a unitary approach to government is more efficient, equitable, and good for their citizens. The findings of many studies bear this out.  For example, it has been found that centralized governments are better able to utilize “economies of scale” in the administration of programs.  Also, federal administrators are better trained and more highly paid and tend to do a better job of providing services than local administrators. One particularly comprehensive study found that “unitary systems hold distinct advantages over federal ones across a wide range of indicators of political, economic, and human development.”  For example, countries with unitary governments enjoy higher levels of economic growth and longer life expectancy. Another study of 21 advanced democracies found a strong correlation between the structure of government and the happiness of its citizens, citing “clear and robust evidence in support of the contention that people lead more satisfying lives in democracies with a unitary government structure.”

Solutions for the U.S.

There are three possible approaches that could help to solve the many serious problems posed by our federalist style of government.  First, we could simply abandon federalism and move toward the kind of unitary government favored by most other advanced democracies. But such a radical structural change in American government is extremely unlikely.

Second, we could try to reduce the extreme form of federalism we now have and vest more power in the federal government. This would put us more in line with those other advanced democracies, like Germany, that also have federalist systems. As noted earlier, the German style of federalism ensures that federal policies have precedence over state policies, which ensures that all citizens have the same rights and are treated equally by government.  At a minimum, this solution requires the reversal of our decades-long practice of transferring more policymaking power from the national government to the states.  And then we need to start clawing back more of this power to the federal level. As a leading critic of American federalism, Jacob Grumbach, has argued, we need to “shift authority upward and away from the state level, where budgets are constrained, voters have less information, business and the wealthy can quickly flood political battles with money, and where threats to democracy continue to arise.”

We could, for instance, increase federal jurisdiction over elections by passing some federal voting rights laws. The John R. Lewis Voting Rights Advancement Act would protect the freedom to vote against the wave of undemocratic and discriminatory voting laws being passed in the states. Similarly, congressional passage of the For the People Act would make it easier to vote, counter voter suppression, fix campaign financing, and eliminate gerrymandering. But election law is the just tip of the iceberg. We need to increase federal power in a whole host of areas including, anti-poverty policy, environmental policy, unionization policy, education policy, and healthcare policy.

In the meantime, if we can’t reform federalism, and if the bulk of the laws affecting the American people continue to be made at the state level, we need to think about a third strategy: fighting it out on the state level to prevent the passage of unfair, unwise, and undemocratic laws. Until recently the national Democratic Party has put almost all of its money and effort into fighting political battles at the federal level. Meanwhile, for the last 15 years, the GOP, along with the aid of sympathetic wealthy and corporate donors, has been funneling millions of dollars into state level election efforts. It appears that the national Democratic Party has finally recognized this threat and has now started directing some resources into state legislative races.  But an effective political fight on the state level will require more than money. It also needs the increased participation of average citizens in organizing and lobbying for policies, supporting referendums, and voting for candidates.

Prospects for Change: Better than Nil

The chances of us adopting a unitary form of government is, as mentioned earlier, basically nil.  Federalism is simply too ingrained in our political culture to disappear completely. But what about the chances of moving toward a less radical form of federalism that gives more power to the federal government?  Well, it is better than nil – especially if the Democrats ever succeed in taking control of both Houses of Congress and the presidency at the same time. This is difficult, especially considering the fact that it is getting easier for the Republicans to control the Senate with the support of only a minority of voters. But it is possible.

This change would be more feasible if there were a surge in public demand for increased federal power. But many Americans do not seem particularly aware of or concerned about the political problems posed by too much power residing in the states. In fact, surveys show that many Americans would rather see the states in control of important policy areas, like environmental protection, healthcare, education, and welfare. But it is not clear whether this public view is because of a principled commitment to federalism or simply a deep frustration with a federal government prone to gridlock, dominated by monied interests, and often controlled by political minorities. With a federal government unable or unwilling to act, some may think there is a better chance that state governments will respond to their concerns.

However, this current public lack of enchantment with federal power could change. The two most recent periods that saw large increases in federal power and programs were the Great Depression of the 1930s and the political turmoil of the 1960s. In the Great Depression there was an economic and political crisis in the country that the states were clearly not up to dealing with.  Similarly, the 1960s brought to the surface a number of serious national problems – poverty, racism, sexism, environmental threats, the Vietnam War, and lack of medical care for the poor and elderly – and it became obvious that these issues could be effectively addressed only on the federal level. It is certainly conceivable that if we enter into another period of national crisis there again may be a rise in public demand for increased federal government power.

But what about the chances for the third approach: fighting the good fight on the state level? Lately more Americans do seem to be waking up to the necessity of getting more involved in state-level politics. The Supreme Court decision allowing severe restrictions on abortions by the states has prompted some people to get much more active in their own state politics. A great deal of grass-roots organizing has been going on to successfully pass state legislation and state constitutional amendments to protect the right to abortion – and not just in Blue states. This shows that concerted citizen action can work. Hopefully, the abortion issue has been a warning bell that will alert people to the fact that the states have become a major political battleground over our basic rights and the fate of our democracy. We will see.

read the next issue: 17. Our Frozen Constitution