Troy Smith discusses his recent article on our website
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Samuel Hill: Welcome to our video today; our last federalism month interview. My name is Sam Hill, I am the ambassador and Senior Research Fellow at the Center for Constitutional Studies at Utah Valley University. We are joined today by Troy Smith.
Troy Smith: Hello. Thank you for having me.
SH: Thank you so much for joining us, Troy. We've published one of your blog posts on our website as part of federalism month, but I'd like to start and just have you introduce yourself a little bit and tell us about what you do, what you research, if you could.
TS: I'd be happy to. I'm Troy Smith. I'm a professor of political science at Brigham Young University in Hawaii, a lot of people don't know that there's a campus there, but there is. My specialty is American government with a focus on federalism. I am a Fellow at the Center for the Study of Federalism where we mostly look at American government in federalism and a little bit of comparative federalism. I'm the editor of the Encyclopedia of American Federalism, you can find that at encyclopedia.federalism.org. I'm just very interested in the subject and love to talk about. Not everybody likes to talk about it in return, but I enjoy it.
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SH: Yeah, there's a quote that goes around the Center, occasionally, and it says, "The quickest way to clear a room is not to shout fire! But to shout federalism."
TS: Right, right. Or the other saying that goes with it is M.E.G.O. My Eyes Glaze Over whenever I heard federalism.
SH: Just sort of check out—pull out your phones.
TS: COVID has been a very challenging thing, I don't mean to say anything good about it, but if there is one thing that we could say about it is that it's got people talking about federalism.
SH: Which is exactly why we're having federalism month right now because all of these issues have suddenly come to the floor and you can't ignore them all of a sudden. Where before you could just kind of be like "I'll leave that over there collecting dust." You really can't help it now.
TS: Right. Yeah, it's life and death in a way — survival and how our government functions. So it's nice to see people are taking an interest and concern in that.
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SH: It really is. Now I'd like to just dive in to your paper a little bit — your blog post with us. You start of and you talked about this a little before, I believe, foedus and federalism. Can you give us a little explanation of the relationship between federalism and, that Latin word, foedus?
TS: So, foedus is the Latin word from which we get federalism. Literally, foedus means pact or treaty, but it's often times translated as covenant because it's coming from a long tradition that goes back to Ancient Israel, which was established by a covenant. Basically what it's saying is that people want a little bit of structure and stability in their life. They want something that they can rely on that supports. It's a structure in their life. And there's no government, there's no order and organization: they have to create that. The way that they create it, well one of the ways of creating it, is through a covenant by making an agreement, a pact or a treaty with somebody else. In that pact or treaty, you relinquish a little bit of your liberty; you give up a little bit of your authority, power and take on an obligation to behave in a certain way. The other party that you agree with also gives up a little bit of liberty and they make an agreement of how they will behave. And, if each of them is true and faithful to that commitment then you can rely on the other party. It gives you a little bit of structure, a little bit of stability in your life. You can imagine now that that agreement would be expanded.
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Say, five families get together and they make an agreement amongst themselves it creates a bit of organization and structure in their life. This is quite common. The political scientist Elinor Ostrom has found that this happens around the world. So say these fives families create a structure, an organization, an agreement of how they're going to behave, they might find that there's another group across the valley or somewhere that has formed an alliance and they want to form an alliance with them. Together they could form a new alliance. Right? So those two alliances, those two groups, could come together and form a new alliance and that wouldn't take away from what existed before the two alliances: it just adds something new to it. So you have the individuals in the original agreement who are protected in their liberty and in that area of autonomy that they preserved for themselves with a limited commitment to the group and then their group also forms an agreement with another group and it can go on. Elinor Ostrom calls these "nested systems"—a system nested within a system. And that idea actually developed in the Middle Ages from reformed Protestantism, it developed as a response to the religious wars — a way to find peace and safety and structure. It wasn't widely popular. The more popular idea was sovereignty which was have a monarch at the top who's in charge of everything and dictates and controls everything. And so a number of those reformed Protestants actually ended up emigrating out of Europe to America: the Puritans on the Mayflower came from that tradition of foedus, of covenants. The Mayflower Compact that they made was actually a covenant based on those ideas.
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A few simple paragraphs just laid out kind of the values, the principles, that they would follow and then groups that came after them came from the same tradition or built off of that. So from the 1620s when the Mayflower came until the 1700s, so the next 80 years, over a hundred agreements were made based on this arrangement, this system, this idea. That kind of set the culture that it was the basis of America and it's from that that federalism comes. Federalism is an agreement. It's not necessarily a covenant anymore, but it stems from that background where individuals give up a little of their liberty, their autonomy. They bind themselves to an agreement to form something, states, and those states may form something in addition. but what it's doing is it's creating a community while it's also unity unifying people around the continent—while it's also preserving the liberty, the independence, the autonomy of the individuals. So it's a way to balance unity and diversity; a way to achieve community, but also protect the individual.
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SH: You bring out balance and, as I've been doing these interviews, that sense keeps coming up — the idea of balancing something. When I was speaking with Grace Mallon it was the idea of sort of this tension that comes up between this interest and that interest and if it can come together in a way that doesn't completely pull one interest off to the other side, if you can, maintain a balance between them that works. Talking to Rod Smith, the idea of making agreements between one another of even being partisan, but where the partisanship is a discussion and a finding as opposed to coming off of balance.
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You talk about balance throughout the article in different ways and I really like your description of unity and individuality. It seems like we lose that a little nowadays. Would you agree?
TS: Yeah, right. I think that the balance is a very important idea to maintain and for systems to function. If we go too far in one direction then that becomes the dominant force and it excludes and eliminates everything else. I mean, if we think about nature, ecosystems, they're in a very careful balance with all sorts of different forces. The way the founding fathers understood government was also balance: counterbalances, checks and balances, for example. I do think that part of what's happened in our world today is we've become fundamentalist. We want one idea. We have one idea, one narrow idea, like 'This is good. This is right' and we just strive for that.
SH: I think you can describe it as dropping anchor.
TS: Yeah. Right. We drop anchor on our ideas. That's actually a psychological concept that we do this all the time that when we state an opinion we drop an anchor and end up having to defend it. It's hard to be open minded and pull up the anchor and say maybe we need to move elsewhere. But this idea of balance with an agreement — so that fundamentalism, Michael Sandel talks about this, a Harvard professor, in his book Democracy's Discontent, and he makes the argument that there is this real movement in the modern world towards this fundamentalist mindset. That there's a right way to do things and if a little bit is good than more is better.
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This is where, I think, federalism is so important and that understanding foedus is the agreement helps us to work through that in order for agreements to work. I don't think partisanship is bad. I think hyper-partisanship is bad. The difference is partisanship is we have different ideas and different perspectives. I think that's very healthy. Different people have different ways, different understandings, different ideas, a different experience and we can learn and grow from that. We got to be able to talk to each other. But, in order to talk to each other there has to be a unity in there to some extent — sharing the same language, sharing certain values — so sharing certain methods of how we're going to approach truth and once we agree on it how we're going to go about implementing that. We don't have to agree on everything, but there has to be a base core of agreement that we're united around. That's what I think the American project ultimately is and does. To be an American doesn't mean that you come from a historical family that came across the Mayflower or signed the Constitution, Declaration of Independence, right?
What defines America is a simple set of ideas and values defined by the Declaration of Independence and the Constitution. Anybody can be American. In my classes I ask students, I got students from all over, I ask the Chinese, "Can I be Chinese? Can I go to China? Can I take a test and become Chinese?" And they're like, "Well you can." "Would I be Chinese?" And they're like, "No." Can I at least be somewhat? No. I mean there are a few countries like that, but America it's whoever comes and buys into these basic, simple fundamental values that's our core fundamental uniting element. From there, there's an enormous amount of diversity that's allowed and that's possible. It's kind of like a marriage. In a marriage there are some bright lines, there are some things you don't do. You don't cheat on your wife and you don't beat your wife. There's some bright lines. But there's also this large amount of negotiation that takes place; who does the dishes, who changes the diapers, who walks the dog, there's all sorts of things and maybe we settle into roles, but there's also negotiation and bargaining that goes on. Maybe those are bad terms to give it, but there's a certain flexibility within that system and when it works it's something fantastic because it gives us liberty, it gives us more opportunities that we wouldn't have, but also gives us connection and security and growth that we couldn't accomplish either. So, I think foedus as an agreement in American federalism fits along those lines.
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SH: You talk about how there's some hard lines and then there's this negotiation that takes place. In the article, you bring up this problem of how we almost live under two Constitutions now. Perhaps this is the result of a hyper-partisanship of the fundamentalization of the different mindsets. Is that where that comes from?
TS: Yeah, I think the problem with hyper-partisanship is it no longer sees the other, it sees ourselves in an alliance with others. We are no longer part of this common collective effort to establish ourselves. There's some very, very deep disagreements there about what governments should do, how governments should behave, what the values are that we seek to develop and as a result rather than seeing other people of different groups as united to a certain extent -- different but united in that common vision -- we tend to see them as enemies. I think there's two things that are going on here. I think that there are some people that truly, truly believe that. They're the kind of fundamentalist: 'This is the way its got to be' and 'We've gotta impose this' and they're willing to do what they need to accomplish that to some extent — within limits, within certain bounds. There are others who claim to believe those things, but I think they're in it for power and profit. So they are feeding the hostility, the anger, the outrage, and those are the one's I think are the real problems. They're benefitting from this and they don't see or they don't care about the harm that they're causing. So you've got both of those groups that are feeding the hyper-partisanship that's going on in America.
SH: I suppose those people exist on all sides of this and that to them it doesn't matter if the goal is to be part of a unity and it's the unity with the individuality where they're together that makes this a functional and durable system.
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TS: Right. That's a very good point. So, in the paper I quote the federalism scholar who says, "Federalism is not one of those values that people nail their flag to" right? They might use federalism and tie it with something else; liberty and federalism, equality and federalism, but federalism is not the hill that they're going to die in. And this becomes, in a way, a problem because if you go back to foedus and the idea of the covenant and what is necessary for that covenant to be sustained it requires a culture. Some people call it the federalist spirit that values that agreement that finds purpose and meaning and value--yeah, sorry I'm repeating myself--value in that agreement. It makes their life stable, it gives it order and it protects them. So when we no longer value that agreement then put other things in front of that so we push those ideas to the extreme and we become fair-weather federalists. We support federalism only when it favors our ideas and what we want. And that can't be supported. It can't last. So that culture of federalism of understanding the covenant is very important. Let me make another point about this if I can go on.
SH: Please.
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TS: Covenants originally, the idea they were called covenants was because God was brought into the idea. It was two partners coming together and God oversees it and call upon Him if one of them breaks their covenant. That idea evolved into compact, where it's just two people make an agreement and God isn't part of it. Then that idea evolved into contract and so we have contracts today. There's a big important difference — and contracts are just individuals — but the thing about individuals is that with a contract you do the bare minimum. You just do what the contract requires and no more, but with a covenant, because you value the covenant and the relationship that it creates you want to fulfill it; you want to develop it; you want to foster that relationship. That's a different culture than the contract culture. I think that's part of what we lost in our society today, we think about things as contracts and lets just do the bare minimum. So in hyper-partisanship, you could say we're still Americans; we're still engaged in this, but it's like do the bare minimum and see how much you can get away with. Instead of recognizing, 'Yeah, we're in this together there's certain fundamental values and that means sometimes I'm going to lose, but I need to support the winners'. Sometimes we need to do things that foster, help and benefit that relationship.
SH: That's almost like the contract gives us sort of a letter of the law, 'I have technically fulfilled my job' as opposed to sort of embodying something in our actions and our decision-making which would be more like a covenant mindset.
TS: Right, that's a very good way to say it. It's kind of fascinating, isn't it? I think most people kind of resonate with it and go, 'Yeah maybe we are missing something. Maybe there is a way we can think about these stories.'
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SH: The Federalism Index Project approaches federalism with a goal of making it functional, making it an active part of civic decision-making and I look at that as something that needs to be more than just the guy sitting in the room as the legislature. I think it has to boil down to me sitting at home in my little home in Mapleton thinking about: How am I going to act? How am I going relate to my city government and my neighbor?
TS: You know, along those lines of bringing it down to the individual citizens and citizenship, I think one of the things that we're beginning to see as political scientists — as political scientists we try to be scientific and separate facts from values and we are very factual in how we think about these things — there's a growing movement within the public policy field that says we really lost something by pushing values to the side and that politics ultimately is about values. As political scientists we need to find a way to bring values back into that equation. This is part of that hyper-partisanship. How much nationalism do we want to promote? The value of nationalism and there are definitely negative sides and connotations to nationalism but, with all things we've been talking about, there's a proper balance. For citizenship, for me, what I think that means is, helping people to recognize and understand again constitutional literacy. And how the Constitution functions — the primary institutions of the Constitution, one of which, being federalism, and giving people a reason to value that on its own. Not federalism and liberty, federalism and equality, federalism because it creates laboratories of experimentation--but understanding that agreement, that unity, that commonality of purpose and meaning and value that it gives to Americans — that common ground to help bridge a bunch of differences. Then once you get that unity you can be safe to allow a whole lot of diversity around that.
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SH: I like that. I wanna dig on something else now for a little while. You talked a little bit about the different interpretations of federalism and people talk about layer cake federalism and cooperative federalism—you bring up coercive federalism—and then you bring up an example I had not heard yet. It confused me a little bit, because you talk about instead of levels or tiers of government you say we should speak about planes of government that recognize the powers. Now, I am not a mathematician, far from it, but—if I remember well from geometry in my sophomore year in high school—planes and levels look a lot alike. What's the difference there?
TS: Yeah. Ok great question. I was confused about this when I first heard it. I think the term planes has been accepted because there isn't a good alternative when trying to get away from levels. So, to understand the difference between levels and planes, and what's going on there, you have to understand that there's a couple of different ways of structuring government, just a couple — it's three basically. There's a lot of varieties within those ways of structuring government, but one of them is this top down centralization sort of a system. You can think about that often comes through conquest. Some powerful person or army or nation is able to take over another and they set up a system where they're in control.
SH: So James I basically. Or William the Conqueror at the very least.
TS: Right. There's lots of examples. Egypt is kind of the original where we think about it setup this way. It's very top down. You got the pharaoh/the king/the monarch on the top who makes the decisions. In our modern society it's a very technocratic system hopefully you know the top has experts that they're listening to and figuring out what needs to be done then it kind of goes down from there. So this is a centralized/hierarchal system. The other type of organization would be a tribal or organic system and this is Ancient Greece. In this you have a center, it could be the Demos, the public, a tribal sort of system that's organically developed from a family and you've got the matriarch, the patriarch who heads it. It's also kind of a centralized system, but more people have access to it and ability to participate in the system. It also can tend to lean towards a hierarchal sort of a system. The way we generally describe that is as a circle with a center. The organic tribal sort of a system. The other system is a covenant system or the feudist system where people make agreements and pacts amongst themselves. We don't really have a good visual for that. The way Daniel Elazar tries to describe it is a matrix with non-centralization. There's all sorts of different power centers.
Power isn't centralized in the monarch. It's not centralized in the central court running the thing. It's dispersed. We made up an agreement where we gave up some of our powers to an organization, but limited powers and we preserve the rest of those powers. And maybe we have nested systems of different things. So it's a non-centralized system. The problem with tiers or layers is there's this connotation that there's one tier/ one layer on top and that's the one in charge and everybody that's underneath is owned by them. That could be a decentralized system of government. The one on top makes the decisions, but they are willing to decentralize some of the power down. But that's about what covenants, foedus federalism is ultimately based on. To try and help people keep that concept in mind that federalism, as it's intended, is non-centralized the term that they prefer it would be planes of government. And so you can have a plane like this and have a plane like this and a plane like this. That's the idea, none of them dominate and control the other. That's kind of where it comes from.
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SH: I think this seems to fit well with some of the things that I learned while going through school. Madison described the central government as being very, very powerful, but having a few powers. Then of course we have the 10th Amendment that says all that other stuff is out there and the checks and balances where this group needs this group. And they work together on this thing, but they can't do anything alone or they can do limited things alone. So where there's just all these different dynamics where somethings can operate on their own in this area but not this area. They're all interdependent — you can't just take one off and throw it away and say "We're going to go off by ourselves. Bye!" Messy sounding.
TS: Yeah it is. It's incredibly complex the way they set that up. The federal government is supreme. In a way you could say sovereign, I don't think that word really fits, but it is supreme in the areas of jurisdiction the Constitution has delegated to it. But beyond that, its not supreme. The power is located elsewhere. Then with checks and balances where you have a federal government and you give it limited, but supreme powers in certain areas and then you divide that power even further. I think what the founding father's had in mind is the laws of nature. Nature is extraordinarily complex. You think of an ecosystem how everything is interacting with itself. I love the image of a beautiful flourishing garden and it seems so tranquil and so lovely, but you think about it and there's an enormous amount of competition going on in that garden for light and space and nutrients and all sorts of other things; animals and plants. When it works it's a healthy tension and people benefit from it. What comes out of that, the whole is greater than the sum of its parts. That's what modern science, I think, is missing. I'm going off on some other tangents but a Newtonian view of the world, of science, says that the whole is the sums of its parts. If we can reduce things down to their parts and understand all of the parts than we can understand how the whole fits together. What new findings in science are beginning to show us is the complexity and the concept is called "emergence" that the whole is actually greater than the sum of its parts. It's something new that comes out of it that we did not expect before. Just two examples, water. Water is fluid, turbulent and wet. But where do those characteristics come from? Hydrogen doesn't have that. Oxygen doesn't have that. And even a few molecules of water by themselves aren't wet. It's only when you get a critical mass of water that the switches flip and it suddenly becomes wet. Another one that I recently heard was acapella groups when they're singing they will actually become a tone or tones, they call them overtones, out of that that nobody is singing. The harmonization between the different soundwaves produces something greater. The whole is greater than the sum of its parts. I think the founders living closer to nature than we do and without 200 years of history of Newtonian science were able to understand if we set this up and then let it go, if we do it right there could be a harmony and a balance that comes out of it.
SH: It may be a little irreverent to think of it this way, but I can't help but think of Fox Mulder from the X Files, and I apologize to anyone if I'm fringing on any copyrights, but he criticizes Denise Gulley, "If you can't measure it. If you can't see it, if you can't this is it doesn't exist." And so the criticism of all these things is lets break it all apart and find all the pieces and there's an almost a poetic something else there that you can't measure that emerges, but that is real.
TS: You're beginning to understand. It's pretty fascinating.
SH: It really is.
TS: Can I tie it back to federalism?
SH: Yeah, let's go.
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TS: I think part of the problem people have with federalism is it's so complex, it's so confusing. There are so many moving parts and they can't control it and they can't understand it. So there's this natural reaction. If you tie this into COVID and federalism there's been a lot of people that are saying really what we need is a united response to this pandemic. And federalism, giving the states and the federal governors all these different powers and responsibilities is too confusing. It's complicated and it's creating problems. I don't think we actually demonstrated that it's causing problems, but it's part of a natural reaction that we want to simplify things. We want to understand things. We want to control things. And the promise of science is we can break things down to parts, we can understand them and then we can ultimately control nature, to a certain extent. The idea here would be to get control over COVID we need to unite our resources together, come together and provide/create a united front against this as a veering modern scientific way of thinking about the problem. But if you think about complexity, if you think about emergence, than if you put those parts together and let them run something greater can come out of it. That's the promise to a certain extent the hope that federalism creates. It would be interesting to see in a year or two years, looking back on this to see how well did federalism do in achieving that. That's giving us a pretty good test case in the future to examine.
SH: I think it would be very interesting to see what comes. We're working on something right now that discusses a little bit of how there's the minimum federal response that everyone seems to be focusing on, but there's also 50 completely unique responses and I really do wonder what we're going to see coming out as a result of having this space for each group to act on its own within that whole. Hopefully it works out well.
TS: That's great that you guys are putting that together.
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SH: Yeah, time will tell. We'll see what comes out of this. I want to talk about sovereignty for a minute because a lot of people used to say, 'Sovereignty? Oh yeah the guy in charge or the power to be in charge.' But you point out that sovereignty all by itself is very, very different from popular sovereignty even though a lot of people conflate them. Can you give us a nice definition or description of how those two are actually distinct?
TS: Okay. So a description of how sovereignty differs from popular sovereignty. For me, I like to think historically. Historically, the way these terms emerged was in the 15th, 16th centuries with religious wars. In particular there was a massacre in Paris, I think it was 1572, the St. Bartholomew's Day massacre; in which, the numbers aren't so accurate back then but somewhere between 5,000-30,000 people were killed in a week. It was Catholics versus Huguenots, some people actually think it was part of a botched political assassination that started it, but anyways, that's getting a little too deep into the woods, a guy named Jean Bodin lost one of his professors in that massacre and with the loss of life he was like 'There's gotta be something we can do to stop this. This is just crazy.' He was one of the ones who developed the idea of sovereignty and that is to place all authority/power within one location. The complete authority and power to rule would be sovereignty and his idea was if one person rules than you can have stability and security to guide and direct things. That was what led to the Treaty of Westphalia in 1647. There were a number of treaties right around that time period that make it up, but that created the modern nation state with sovereignty and it creates the central state as the authority to decide, pretty much, all the questions politically — including what religion that state would be and all of the people within that state. One of the others things that was decided was that the epistemology that they would use would not be religion and revelation, but rather science. So the monarch, the central authority, or whatever that sovereign body would be, would use science to decide its questions. It's that centralized system that we were talking about earlier. That's our idea of kings.
When we see Disney with kings and things like that we think that they have this power and such — that comes after the Treaty of Westphalia. Before that, kings have limited powers. They had to deal with different guilds and different groups and organizations; it was more of a collective arrangement between the two. So this is a fundamental change. There's a lot of people who disagreed, particularly Protestants. They sought an incredible abuse of power that could come from that. So you have people like Johannes Althusius, you have Phillipe de Mornay, Heinrich Bullinger, John Calvin, Ulrich Zwingli, who develop this other idea and the other idea is popular sovereignty — the counterweight. That's the idea that the right to make decisions resides in individuals. They get to make the choices and so the only authority over them — legitimate authority that can be over them — is the authority that they consent to. This is the basis of foedus. They actually are drawing on that Ancient Israel, really covenant, and creating an agreement. Individuals come together, they make agreements to give up some of their independence, some of their liberty to form a collective agreement that will provide safety and security for them. It's that idea that gets to America. Before Hobbs and Locke these ideas were being developed within America. So that popular sovereignty, the right to consent to government, to give it certain powers, to take those powers back, resides with the people and not with the government, the central authorities.
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SH: Okay, so hearing you describe them like that I really have to wonder how can we justify an idea like sovereignty as a justification for a course of action in the United States where — from my perspective, from everything I'd read — the whole point is popular sovereignty? How can we justify that, do you think? How does that find a home?
TS: Yes, I mean the theory, the Founding Fathers, they were all coming from this notion of popular sovereignty. But the idea gets challenged in the 19th century from a couple of different groups. One of them is the southerners who want to justify slavery. And popular sovereignty is based on the equal rights of individuals. Every individual as a human being has the right to consent to the powers that govern them. If that's true then slavery is immoral — it's wrong; it violates that idea. So there were a number of southerners who didn't like this idea and needed to change it. And so they reject the idea of popular sovereignty and make an argument that you need more sovereignty within the system. There's another group, this would be about 1848, other wars and problems in Europe led a lot of intellectuals there to come to America and they got key positions in American colleges and universities. They brought an idea of governance that was based in either Darwinism or Marxism. And Darwinism, right, you got evolution, survival of the fittest and so, in order for that to happen, you have to marshal all the resources together and be organized and directed — that would be a centralized top-down system.
Marxism, similarly, facilitates that (even though Marx ultimately kind of says that he doesn't). In order to bring about his change, he actually creates an aristocracy — the Vanguard; they're the ones who are going to lead the mislead proletariat through the revolution and the transformation of the economy to create a communist society. That evolved into the Progressives at the beginning of the 20th century. There were multiple Progressives, different ideas, but the one that prevailed was the one that Woodrow Wilson comes out of. Well Woodrow Wilson, he is opposed to American government, checks and balances, federalism. He's like 'All of this is inefficient'. He is influenced by these European intellectuals and his idea is that the president is in charge and Congress, members of his party in Congress, should follow the president and do what the president says. That gets fed into the Newtonian idea of science and evolves over time to a very central top-down sort of system of thinking. Now, these two ideas, there's a couple of directions we can go with this, how does democracy fit in to this? Because this seems contrary to democracy. How is federalism, if it's popular sovereignty, how is that different from democracy? The other way of thinking about it is in our modern society how is that centralization how does that fit democracy as well? So there's federalism and democracy and then there's centralization and democracy.
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SH: So the question between sovereignty and popular sovereignty, you also bring up I think a really important question for American federalism that in a way defines our modern debate and that is: who should do what? How do we pick that if we're in a situation of hyper-partisanship? How can we come to a better way of deciding that?
TS: So in a situation of hyper-partisanship federalism and such the question is always: how do we decide which government does what? What should the federal government do? What should the state and local governments do? This is a fabulous question. This is the debate that every generation of Americans has. Every generation is redefining anew where that line is drawn. The original generation, when Madison and Hamilton and all the other founders put this thing together, they didn't really have a clear vision of where to draw that line. If you read the federalist papers, and I've written a paper on this, I think there's a difference between Hamilton and Madison and how they think that is going to be decided. Madison at the time he's writing it is thinking more kind of duel-federalism terms, but he's thinking that the Supreme Court is going to make the decisions of where these lines are drawn. The hard decisions of defining that. If you read Hamilton in [federalist paper] number 17, he says it's the people who are going to make that choice through elections — who they vote for and that. When I think about this I think there are some very hard and clear lines with what the federal government's powers and responsibilities are and what state and local government powers and responsibilities are. And to some extent the Supreme Court has tried to find those lines, the most clear one is the non-commandeering principle; the federal government cannot commandeer, command states in how they spend their resources. Then it gets a little bit confusing beyond that, but we're still having this debate.
I think that the fact that there's flexibility in those joints is actually a really good thing. If we go back to a marriage covenant there are some clear things about that marriage covenant, some clear commitments, that a spouse makes in entering into that. I mentioned that earlier you're not going to cheat on them, you're not going to beat them up, right? Within those lines, there's a whole lot of negotiation that goes on in defining the roles and responsibilities and how things work. Then it changes over time, often times within a marriage. I'm not saying that the federal relationship is totally open and all sorts of things where we can do whatever, but I am saying that that flexibility to play within the joints is actually a very beneficial thing that allows the federal government to adapt and adjust in time. The problem is that pendulum that swings between national power and state power doesn't swing so far that it's broken and the elements, the forces that pull it back in the other direction at some point are lost. I still think that's an open question. Do you think that there are a number of elements in place that it favored the federal government? And that's why I think we can talk about coercive federalism — when the federal government is able to coerce the states — but that doesn't describe the whole relationship.
There's still a lot of cooperative federalism and, as we're seeing with COVID-19, there's still some duel federalism that exists within the system. The states are finding tools to fight back against the federal government with attorney generals suing the federal government. We saw the Republican attorney generals at the state levels suing Obama, the Texas attorney general said, described his job, "I go to the office in the morning and I sue Obama and then I go home at night." And Democratic attorney generals have been doing the same thing for Trump and they've actually been quite successful in stopping many of the environment regulation rollbacks that Trump wanted to achieve. I would say to answer your question — how do we determine which level of government does what? — that's part of the process, that's part of the Constitution, that's part of the Supreme Court's interpretation of the Constitution and it's part of the elections that we have at both the local, state and federal level. They all get to participate in this conversation of defining what the agreement, what the Constitution means and how we should implement it. We need to be very careful that we don't push that Constitution beyond its stretching point. We need to preserve that dynamism that exists within the system, but thank goodness for that dynamic element that's there.
[00:51:03]
SH: In a way, it's not that there is a hard and faster tool that says this is who decides, it's that combination of Madisonian and almost Hamiltonian where there's this system with all the things that have to work together that give you federalism that is more than any one of pieces that takes part of a process.
TS: Exactly that process, that whole system, that whole dynamic, that comes together ultimately depends on that culture, that federal spirit, that we talked about earlier that the people, the Republic, values this agreement, this pact. We don't need to call it a covenant but this federal arrangement that we've entered into where we have relinquished, divided up, defined to a certain extent that relationship. If we think of it as a relationship, rather than institutions separated, where there are some clear lines of what's not acceptable, but within those lines there's a fairly broad range. As long as people value that agreement, understand it and value it then there's this ability to have these negotiations and these discussions and allow play within that system. There's got to be respect within that system though.
[00:52:35]
SH: A lot of respect. Well Troy, I think what I want to do is wrap this up. I'll leave you with that last word on this one if you could tell us what you think we should take away from this COVID moment that we're in and what it tells us about federalism, what would you say?
TS: We're in the midst of it so coming out with any clear, final, definitive answers is very difficult at this point. I would say a couple of things. First of all, it's very clear that the hyper-partisanship dividing our leaders has prevented a clear, consistent direction and policy to deal with these issues and has created more ambiguity and union than we probably should have had going forward. That doesn't mean that we should have a complete, uniform, united approach to this but there clearly could have been a better national direction. The second thing that I think learn from this would be is that there's an enormous amount of division over what federalism means — what the Constitution means by that and how we should work out those disagreements. I think that disagreement is healthy as long as we are open to hearing alternative perspectives and evaluating our own ideas and thinking 'Maybe I'm wrong. Maybe there's something new I could think about.' I do think we need to do a better job with constitutional literacy and understanding that federal system and how the Founders intended it to work. The third thing I would say that we've learned from this is that the states have been pretty dynamic. I think we're beginning to see — in the 1980s we began to see the states reassert themselves and that has just continued to grow. And seeing the responses to this, for the most part I think, has been fairly positive. We won't be able to evaluate this stuff for a couple of years after it's over with, but I think that we are seeing federalism providing some benefits in the dynamics and dynamism in the alternative responses we're getting across the country.
[00:55:03]
SH: Thank you so much, Troy.
TS: Thanks for the opportunity, Sam. This was wonderful. You did a great job. You got me on my soapbox a few times and allowed me to talk about my stuff and raise good issues for the people that understand it better.
SH: Thank you Troy for being with us. Can you give us your website again where people can look at your work and look at what you do?
TS: Yeah, it's TroyESmith.com.
SH: Okay.
TS: And under publications there, there's a list of links to my publications.
SH: And then the Encyclopedia of Federalism website is...
TS: encyclopedia.federalism.org and the Center for the Study of Federalism is federalism.org. There's a lot of resource material there to better understand federalism.
SH: So I want to encourage anybody who is watching to go and visit those resources. Also, if you haven't read Troy's excellent analysis piece "Understanding the Federalism Disputes Exposed by COVID-19: A Primer" please go ahead and visit us at federalismindex.org. That's our website. Give it a read it's very well worth your time. Troy thank you so much.
TS: Thank you, Sam. I really appreciate this and thanks for all the work that you and the Center for Constitutional Studies are doing to promote constitutional literacy.
SH: Thank you so much.