Last week, we had the pleasure of sitting down to an interview with Grace Mallon, a doctoral candidate in History at the University of Oxford, to talk about federalism and her article "COVID-19 needs federal leadership, not authoritarianism from Donald Trump" which was published in the Washington Post. Samuel Hill, our ambassador at the Federalism Index Project, conducted this interview.
Samuel Hill: Hello everyone. My name is Sam Hill, I am the ambassador with the Federalism Index Project at the Center for Constitutional Studies at Utah Valley University. We are joined today by Grace Mallon. Welcome Grace! Thank you for joining us for federalism month.
Grace Mallon: Thank you so much for having me. It's great to be here.
SH: Excellent. Some of us at the center have had some connection with you in the past, thanks to your work on the Quill Project. Could you take a moment to introduce yourself to our viewers who don't know you and also tell us a little about the Quill Project?
GM: Thank you so much for having me for federalism month. As you said, I'm Grace Mallon. I'm a Ph.D. candidate at Oxford University in the UK and my thesis is on the development of American federalism, particularly as a practical system of governance — as a system of administration in the early American republic. So, after the Constitution was implemented through the War of 1812.
The work that I did on the Quill Project was data entry on the first major project under the banner of Quill, which was the 1787 Constitutional Convention — the first edition that they did of that. I did that shortly after graduating from Oxford and so I've been connected with Quill for quite a while, basically since its inception.
SH: Could you describe what Quill is briefly?
GM: Absolutely. What Quill does, is it traces how legislation changes as its being negotiated in parliamentary settings. It basically shows how constitutions, laws, and treaties are made in real time, from day-to-day, over the course of a parliamentary process like a constitutional convention, a session of parliament, or a treaty negotiation.
SH: I had one of one of the Quill associates here at the center work with me for a day or two while we were examining Article 5, tracing its genesis, and these very first ideas through to the thing that we know today. It's really quite a fascinating project. It really does allow you — once you get into the system — it allows you to literally trace. Now there's a line on the screen for you to follow and it will literally show you how you got from Point A to Point Z, I suppose. So it's really quite a fascinating project.
So, you said that there's not a lot of scholars of this time period in the UK. How did you end up in this milieu?
GM: Well, I mean there are, as it turns out, many more than I thought there were when I started the seminar. I didn't expect to end up working on the early American republic. My big interest, as an undergraduate, was in German history. But then I was taught by Dr. Nicholas Cole as an undergraduate, who's the founder of the Quill project, and I found it to be this very fascinating world that I was entering — 17th and 18th century America. With lots of interactions from different cultures, all of this sort of commerce, all of these ideas about freedom, about the enlightenment, about forms of government, about religion and I thought it was just this incredibly vibrant world. And, so obviously, troubling in certain ways as well. I thought that would be a really interesting thing to work on.
Then I worked for Quill, as I said, for a few months after graduated and it just seemed like the right thing to do to keep looking at U.S. Constitution.
SH: Well, as a fan of the U.S. Constitution here and all of us at the center, we're very glad that you found your way to this side of the Atlantic. So much of our research here at the center and at the Federalism Index Project indicates that Americans don't know a lot of specifics — a lot of the mechanisms — about federalism and how the Constitution works. They have what one scholar calls a sort of intuitive federalism — this sort of internal compass or gut feeling of how things should operate — it actually does influence their opinions and their decisions with regards to governments.
Now my understanding is that Britain has a sort of federalism as well, but it's a little different from the American version.
GM: British federalism...I suppose we would never call it federalism. But you're right that we have a devolved — we have a union of different governments and we have a devolved government within our union. So different parts of the United Kingdom are able to make decisions for themselves. I am coming to you from Scotland and there's a Scottish government which is able to make a number of decisions about how Scotland should be governed.
I suppose the major difference between the British Union and the American Union, in terms of governance, is that we have a, broadly speaking, parliamentary sovereignty. We have one body which is able to overrule all the other decisions, should it wish to, that are made by other governments. In the United States of course, you have popular sovereignty and you have a division of sovereignty, in a sense, between the federal government and the state governments. I think that's the major difference there.
SH: I guess you could say, and please correct me if I'm wrong, that the British federalism would be federalism at the pleasure of the Parliament.
GM: Right. Exactly. Yeah.
SH: And meanwhile here where we engage in a little bit more fisticuffs on somewhat more equal standing between the different areas of government.
SH: Speaking more generally, what is your opinion of federalism?
GM: Well, that's a very good and very tough question, but mostly I find it perplexing. As a Britain who grew up with a sort of unitary government, essentially, that was able to make most decisions as I grew up in England. So I've been, as you say, at the pleasure of the Parliament. Parliament can make and break pretty much any law it likes.
I find the American federal system, the attempt to divide the functions of government into two — so one half goes to the states the other half goes to the federal government — I found it really difficult. I think one of the reasons I found it difficult is because when people talk about the Constitution and American constitutionalism they say America has a written, codified constitution and it delineates pretty precisely what the functions of the federal government are and what the functions of the states are.
When I started to try and read up on this, I found it's a lot more complicated than that. A lot of things that seem obvious when you read the Constitution actually don't mean what you think they mean, or lawyers have interpreted them very differently, or if you talk to an American they'll say "How could you think that it says that?" So, I really find it quite perplexing. I think it's really a lot more complicated than that document, the Constitution, would suggest it is.
I think the American union has survived thus far. I mean, as surprising as that may be, given some of the enormous crises that the federal union has weathered across the course of its life, it's survived. I suppose that's a testament of the success of the American project — the American experiment. But yeah, as you say, it can get pretty messy, pretty intense sometimes.
SH: It's frankly very nice to hear this perspective from somebody who grew up in a different system, but makes this their field of study. It's very, I think, enlightening for us. Now I want to move to your piece in the Post.
Last month you wrote, I think they call it, a perspective piece called "COVID-19 needs federal leadership, not authoritarianism from Donald Trump". You sort of addressed the proper role of the president in managing crises like the COVID-19. Now, what's the genesis for that piece? What's the foundations for that?
GM: That was an exciting moment for me to get published in the Washington Post. Where it came from? I suppose it came from two things. For me, well the headline was a reference to Donald Trump's suggestion that he, the federal executive, had complete power over management of COVID-19, which I think everyone across the political spectrum, whether you are a republican or whether you are a democrat are saying 'Hmm...I'm not sure if that's what the Constitution says.'
So that is the reason why the headline is that headline. The reason I decided to write the piece and send it to the post in the first place was that I had seen a lot of historians and other commentators saying, 'Oh my goodness! This America that we're living in right now is like the Constitution has never been passed.' 'It's like we're living under the Articles of Confederation', and 'There is no federal government.' There were those two extremes. Some people were saying Donald Trump is being an authoritarian and he's breaking the Constitution like that and other people, sometimes the same people, were saying the federal government is abandoning its responsibilities under the Constitution. I wanted to try and address those two points by reference to some history.
SH: So in reading your piece, I actually learned some very interesting things like the fact that there was a massive epidemic four years after the Constitution was passed. You drew some really interesting parallels to that.
GM: Yeah, so I did. Essentially what I was interested in — I was sort of wondering, why is the federal government not treating this like a national crisis? Why is the federal government not stepping in and saying we're going to take control of this? Why was there this very difficult moment of conflict between the state governments and the federal government? And that's what I wanted to look at.
I went back to 1793 when, as you say, the Yellow Fever came to the United States. It famously came to Philadelphia where it killed thousands of people. I particularly wanted to tell one of my favorite stories about the early American republic which I found when I was reading Thomas Jefferson's papers a few years ago. I found a letter from the governor of Virginia, Henry Lee (III), who wrote to Jefferson to say that he'd heard that the Yellow Fever was coming into the port of the United States. Under the laws of Virginia, customs officials, who live in the ports, were supposed to manage quarantine procedures, which was basically the only way that early Americans knew how to deal with epidemic disease because obviously medicine is relatively limited. But we know that we can stop disease by quarantining people. So, not much has changed in a sense.
So he (Henry Lee), said to Thomas Jefferson, 'Look, the custom officials are federal employees, so shouldn't the federal government take control of the quarantine procedure?' Jefferson wrote back and said, 'No. We're not going to take control of the quarantine procedure.' That really made me think, because it really reminded me of the current situation and all these people saying, 'Oh, it's just like under the Articles of Confederation.' 'It's just as if the Constitution had never been passed.' Where I was thinking it's just like early federalism. It's just like those early years under the Constitution when they were trying to figure out what are the responsibilities of the federal government and what are the responsibilities of the states.
I started to look into that a bit more and think about that question: "Why are the states taking responsibility for this?" And I learned that it was just commonplace throughout the early American republic that states would bear responsibility for public health. It was part of their powers of internal police, which were left to them by the Constitution and the federal government generally didn't get involved.
I thought it was really interesting that Donald Trump's response to the epidemic is quite similar to perhaps an early American president's response, but, obviously, the popular reaction to that is not the same because there's an expectation that the federal government will get involved.
SH: In your article you talk about how we need real federal leadership as opposed to what we're getting. What does that look like coming from the federal executive to you?
GM: That's a really difficult question, a really important question, because, as I said, states traditionally bare responsibility for public health. It's something that's been recognized by the Supreme Court. So in Gibbons v. Ogden, 1824, there's this question about federal powers under the Commerce Clause of the Constitution and Chief Justice Marshall said the federal government has sweeping powers to regulate commerce, but he says the one thing the federal government cannot regulate is quarantine — that's still a state responsibility. There's a long history of the state's responsibility, but on the other hand, Americans — a lot of Americans — are, including state governors, clamoring for a federal response.
Obviously there is a federal apparatus now to deal with these things — which there wasn't in the early republic — at the Centers for Disease Control, which have become involved in managing this crisis. They have a lot of expertise so I was expecting for the administration to cooperate with them perhaps more.
I think what I also thought and I think a lot of Americans feel this as well is that federal leadership is about tone as much as it is about action. It's about a respectful response to people's difficulties. There are two sets of difficulties we are all going through right now. Obviously, one of which is it's scary that we can get a disease and the other is, it's scary that the economy could crash and we could all lose our jobs and find ourselves in dire strains.
SH: And starve to death, essentially.
GM: Whoever's in leadership has to navigate those two extremes, but I think what a lot of Americans were looking for and, I think, what the expectation is the president as the head of state — America's representative on the world stage and on the national stage — was perhaps for a more sensitive response and a more cooperative, understanding relationship with the nation's other leaders — the governors. So that's what I'd be looking for in terms of leadership.
SH: You point out that according to the Constitution, according to precedent, according to the Supreme Court, this has often been a state-controlled issue. Do you think that the governors should be acting differently? Perhaps asserting more control instead of waiting?
GM: That's a really good question. I think it's really difficult to be a governor right now. I think another reason I wrote that piece is because they are really on the hot seat in terms of responding to this crisis. I think some of them have been incredibly proactive, people like Andrew Cuomo have been very proactive, in sort of locking down in terms of promoting a public health centric approach to the crisis. You've got other governors who are saying, 'Look, my people, the people who elected me, want me to keep the economy going' and so they've also been saying, 'Well that's going to be my priority.' Then you have conflicts between state governors and state legislatures and state Supreme Courts, which we've just seen in Wisconsin with a ruling that's overturning the governor's order.
Then you have municipalities as well who are doing their own thing and setting their own regulations. So, as I say, it's incredibly hard to be a governor right now wherever you are. I guess they're all doing the best they can. But I suppose what people are looking for most of all, to give a proper answer to your question, is a clear message. And I think that's what governors should be trying to do is to give a clear and sustained message to show that they are being respectful of people's health concerns and, obviously, also their economic concerns.
SH: You mentioned Andrew Cuomo and he proposed a few weeks ago a state consortium where the states would band together to prepare for and to manage future situations like this, completely independent of federal management, federal control and federal direction. Is that a good federalism-ish response?
GM: There were a lot of extreme responses to the creation of these state consortiums on Coronavirus response. A lot of people were saying, 'This is exactly what the framers were worried about when they made the Constitution they thought America was going to break down into a series of confederations and it's happening.' It was one of the responses that I saw. Some other people pointed out to me, 'Well, states have consortiums on lots of things.' States have consortiums on fishing regulations and lots of other laws where they say, 'Look it would be much easier if we could, as a geographical unit, make our laws go across state borders because it would be less confusing and it would make it easier for all of us to enforce our laws. And we agree about these things so maybe it would be better if we do this.'
So state consortiums do exist although there is that sort of slightly concerning clause in the Constitution, Article 1, Section 10, that states should not make treaties or alliances. I did wonder: 'Is this constitutional?' But it is. It is something that states do quite a lot. So, I think if we're saying it's a state responsibility to manage public health then this is a pretty natural response. Particularly when you have something where you need to control a large geographical area to prevent the spread of the virus. It seems fairly sensible to me.
SH: You close the article with what I consider to be a very interesting line. I would almost go so far as to say a little contradictory. You say, "The success of American federalism has always depended on a cooperative — not a combative — relationship between the nation's different governments." This seems a little at odds with the way that many U.S. constitutionalists perceive this situation. I think it certainly doesn't represent the way that we have managed a lot of crises in the past and, as you say, we're still here. We're still surviving. We're still working on it. Why do you see this as a more federal-state cooperation as opposed to, say, Madison's and the other federalists more adversarial vision?
GM: Yeah, that's a really good question. So that statement comes directly out of my research and it also comes from what political scientists have been working on over the course of the 20th century. As I said at the beginning of the interview, we sometimes have this vision of the Constitution as creating what political scientists would call dual federalism. Where the federal government has its functions, the state governments have their functions and never the twain shall meet. They essentially don't touch each other. They are each independently dealt with.
And certainly Article 1, Section 8 would see this sort of representation — that vision. The enumerated powers of Congress. But some political scientists have argued that after, particularly the Roosevelt administration and the New Deal, there was a shift to a mode of federalism they call cooperative where essentially states were forced to cooperate with the federal government to execute many of its policies. Obviously the federal government had an expanded role moving into what had traditionally been state responsibilities.
What I've seen in my research, from the very earliest days from the republic, is that a model of cooperation existed right at the beginning. In the sense that Congress could pass laws to create and implement policies, but often, very often, state governments would also have to pass laws to allow those policies to go into effect within the states. Because the federal government had very limited capacity in terms of money and in terms of man power — whether that be the army or customs officials, etc. — they had very limited resources to enforce their own laws.
So, essentially the states stepped into the breach a lot of the time. There was a lot of federal reliance on the states which Madison — my trusty federalist — also lays out in the federalist that the federal government is going to be at a disadvantage here. But at the same time, the states also have a lot of influence on federal policy and they sort of make requests as we see in that moment when Henry Lee writes to Thomas Jefferson. They make requests for the federal government to do certain things. So there is this constant ongoing negotiation of an interaction between the two levels of government in order for government to get done.
That's why I made that point, because I think it was very clearly incapsulated by that story of 1793 and the Yellow Fever epidemic.
SH: I can't help but be reminded of one of the classic and core arguments for the federal Constitution and for this vertical separation of powers to really empower the states. The argument is simply that we are going to be an expansive republic in a way that Britain simply can't be because it's a little collection of islands about the size of Florida roughly. So this federal government was such a limited manpower and, obviously without the benefit of communications and transportations that we have nowadays, cannot extend their reach far enough to effectively govern in a way that was beneficial to the people.
It seems like a cooperative vision of federalism where you have Governor Lee and President Jefferson saying, 'Hey! We have a problem over here.' 'Hey! It's the same problem that we have. Lets find a way to work together,' because Jefferson can't extend his reach in a way that would effectively handle the problem.
SH: At the same time, the states are not necessarily qualified at that point or they don't have the expertise — there's reasons why they need that federal and more expanded help.
GM: Yeah. Absolutely. And so that's something that I really engage with in my doctoral thesis.
SH: I look forward to reading it. Well, thank you so much Grace. I have really enjoyed this chance to chat.
GM: Yeah me too. Thank you so much for having me on federalism month.
SH: Thank you so much. I think this will be a wonderful and very beneficial discussion for the work we are all doing here.