The federal and state governments’ lack of preparation and response to COVID-19 is disheartening given that experts have been warning for decades that a pandemic was coming, though they could not say what or when. Looking for someone or something to blame, and as a means to find a solution or prevent the problem from reoccurring, many are pointing fingers at America’s federal system.
Federalism scholars, as usual, present a mixed response. Many have been highly critical of the federal system, calling America’s response to COVID-19 “organizational chaos” (Barrileaux 2020), a “patchwork of policies” (Carter and May 2020, Price 19 March 2020), “muddling” (Fernandez 2020), “partial and porous . . . lack[ing] uniformity and certainty,” (Knauer 2020). Politicians and others have piled on with their favorite federalism metaphors including “a Darwinian approach to federalism” (Cook and Diamond 2020) and a “return to the Articles of Confederation era” (Cowen 2020a).
Others have defended federalism by appealing to the typical positive federalism arguments, including that it allows the adaptation of policies to fit local circumstances, it provides laboratories of policy experimentation, and it provides alternative leaders for when an enlightened leader is not at the helm (Cowen 2020b; Dougherty 2020; Yoo 2020).
COVID-19 exposes the deep divisions within America over how federalism should operate. These differences regularly inhibit communication, compromise, and the adoption of effective policy. For example, the 104th Congress (2005-2006) failed to adopt Medicaid reform due to some very different understandings of federalism, and despite broad support for reforming state budgets’ most expensive item (Ladenheim and Kee 1988). Since then the problem has grown (Conlan 2017, 173). Different understandings of federalism are a fundamental component of the culture wars and the hyper-partisanship that divides America. The poor government responses to COVID-19 are attributed largely to partisanship (Kincaid 2020). These differences are practical and ideological, pragmatic and philosophical, superficial and profound.
The purpose of this essay is to improve constitutional literacy of America’s federal system and some of the primary disputes over how American federalism works. Understanding federalism from multiple perspectives can help work through differences much more than dropping anchor on our own favored interpretation and dismissing and discounting those who think differently. If we desire effective public policies that are broadly accepted, faithfully implemented, and fulfill their objectives, then we need open and honest communication, compromise, and general agreement on the basic purposes of our union.
The essay begins by examining some of the most common problems of defining federalism. It then moves to an examination of public policy models to understand how policy is made. Next, it turns to two major theories of how power is divided between the federal and state governments, which, as shown in the next section, come from two different interpretations of the Constitution. The final section examines the philosophical roots of these divisions based on two fundamentally different ideas about whether good governance is based on a theory of sovereignty or a theory of popular sovereignty.
I: Divisions Created by Definitions
Many of the disputes and misunderstandings over federalism begins with defining the word. This has been notoriously difficult for federalism scholars. Upon reviewing the various definitions, S. Rufus Davis (1978) concluded that the tie that binds the various meanings of federalism is foedus – a Latin term translated as covenant, and its cognate fides meaning faith and trust. Foedus implies a promise, commitment, and undertaking that requires cooperation, reciprocity, and mutuality towards achieving a common purpose. Implicit in foedus is a recognition of separate entities as individuals, people, societies. The objective of foedus is to create “some measure of predictability, expectation, constancy, and reliability in human relations” to “bring some stability into their lives.” Foedus, thus, provides a means to “promote both personal and common interests . . . communality and individuality” (Davis and Davis 1978, 3). In short, foedus is an answer to that persistent philosophical question of how to balance the needs of individuals and community.
Federalism is more commonly understood as a political structure or organizational concept. “A federal order” writes Harvard professor Carl Friedrich, “typically preserves the institutional and behavioral features of a foedus, a compact between equals to act jointly on specific issues of general policy” (McCoy and Baker 1991, 12). That is, a federal order unites diverse groups into a single polity that preserves the personality and individuality of the groups (Livingston 1974, 9). Daniel Elazar summarized federalism best as “constitutional power-sharing” to achieve “self-rule plus shared rule” (Elazar 1987).
These definitions, however, do not resolve the challenge of where one draws the line between federal and non-federal nations. Does federalism include a confederation that grants most power to constituent governments and significantly limits the central governments’ powers? At the other extreme, does federalism include a unitary government that decentralizes powers to regional or local governments to fulfill national objectives? All of the above may, and often have, claimed that they are federal, if not constitutionally then in actual practice
These various definitions and interpretations raise the question: what is the ultimate aim or objective of federalism? Is it a practical compromise (Riker 1964), a stage or phase that society – or aggregate of societies – must pass through on their way to a complete union (Beer 1993; Sidgwick 1891), a necessary administrative tool in a union as large as the United States (Kettl 2020), or a covenant that builds a deep relationship of unity while protecting difference and diversity (Elazar 1980)?
The ambiguity inherent in the definition and objective of federalism allows divisions as partisans select specific elements of federalism that favor their ideals and biases. Understanding these differences will shed insight into the culture war disputes, and the poor government response to COVID-19. Finding a way past the divisive politics that mark our age may require returning to the older notion of federalism as foedus (more on this later).
II. Public Policy Theory, Policy Entrepreneurs, and Panicked Responses
One common means to examine and understand federalism in the United States is to look at how public policies are made and enforced. For example, one explanation for the political divisions over federalism in the COVID-19 crisis is provided by the “policy windows model of public policy. In this model, public policies are adopted when a problem, a solution, and a favorable political environment converge (Kingdon 1995). Many proposed solutions fail because they lack an actual problem. The COVID-19 crisis presents a clear problem and is creating a favorable policy environment, because policymakers are seeking solutions, thereby creating a ripe opportunity for policy entrepreneurs to get their favored policies adopted even if the proposed policy does little more than appear to solve the specific problem. Consequently, advocates for a specific policy have an incentive to talk up federalism’s problems or benefits depending on which best advances their preferred policy.
In this dispute, who will prevail? The public policy debate winners are usually the ones who can marshal the greatest support for their preferred policy (Conlan, Posner and Beam 2014; Wilson 1995). Federalism often loses in these debates, because federalism is a general policy position that generates less support than specific policies targeted to a specific problem. This is the meaning of the phrase “fair-weather federalism.” One federalism scholar explained it thus: “People are not likely to go to the stake, or the barricades, to defend federalism as such. They may undertake heroic actions for the sake of some value which federalism happens at the minute to favour, and may even then inscribe federalism on their banner – ‘Liberty and Federalism’ – ‘Equality and Federalism’ – but never just ‘Federalism’” (Sawer 1969, 153). Even the state governments and their officials have a hard time defending state powers and interests from federal intrusion (Smith 2008).
At this moment (May 2020), some are actively campaigning for an extensive increase of the federal government’s authority to deal with COVID-19 similar to President Franklin D. Roosevelt’s New Deal response to the Great Depression. The lessons from the New Deal, however, suggest caution to such an approach. Recent scholarship makes a strong case that the primary elements of the New Deal exacerbated rather than resolved the Great Depression and hurt the common people (Shales 2008; Cole and Ohanian 2009; Cole and Ohanian 2004). Yet, our human psychology drives us to do something in the face of trouble. So, those advocating action often prevail. Indeed, FDR won his first presidential election on the promise to “try something.” (1932 Oglethorpe Address by FDR).
Similarly, many of us rushed out to buy toilet paper when the COVID-19 crisis hit. It made us feel like we were doing something. The supply of toilet paper, in retrospect, would not have been jeopardized if our panic had not created a short-term demand spike that temporarily exceeded supply. Increasing the federal government’s powers after nearly a century of growing federal powers is not something that should be driven by panic. Nor should effective responses be prevented by an unnecessary commitment to the past. How the government should respond to national emergencies like COVID-19 requires revisiting the fundamental and perennial question in American federalism: Who should do what?
III. Structuralism or Functionalism
This question is often expressed as, “What should each level of government do?” The word “level” in that question implies that America’s federal governments is structured in layers with the superior government on top and the inferior beneath. This language implies that the federal government is superior to the state and local governments, which justifies the federal government taking over when there is a serious problem like COVID-19. We should remember that although the Constitution declares the federal government supreme (Article VI, Section 2), that supremacy is limited to the jurisdictions granted by the Constitution to the federal government. For this reason, some federalism scholars claim that it is wrong to speak of the American federal system as one of levels or layers. Rather, they claim, the America federal system is a non-centralized system, with power divided and dispersed to many locales. Thus, instead of levels or tiers of government, we should speak about planes of government that recognize the Constitution’s dispersion of powers.
The question, nonetheless, remains, “What should the federal government do and what should the state governments do?” Answers to that question often divide scholars in to rival interpretative camps. These schools are sometimes referred to as structuralism and functionalism
Those who defend structuralism tend to argue for a precisely fixed division of power between government levels (Ladenheim and Key, p. 240; Beer 1993; Elazar 1987; Friedrich 1968). Functionalists, on the other hand, favor allocating powers and responsibilities according to which government can perform the task most effectively, efficiently, and equitably (Musgrave and Musgrave 1976; Oates 1991; Rivlin 1992; Peterson 1995).
A structuralist understanding of federalism prevailed for much of the nation’s first century. However, when a series of crises hit the United States between 1929 and the 1950s, constitutional standards were shredded, thus allowing the national government to impose itself into areas once considered the states’ realm (Kee and Shannon 1992, 326). From then until the 1980s, the federal government became the dominant domestic agenda setter. As federal deficits grew in the 1970s and 1980s, the Washington-consensus that gave the federal government priority over many domestic policies began to collapse, and resulted in an “uneasy sorting of roles between the national government and state-local sector” (Ibid).
By contrast, functionalists stepped forward with theories explaining which government was best equipped to handle different functions. Many of the functionalists’ assumptions and theories, however, turned out to be either politically untenable or extremely rare or false, such as the race to the bottom theory (Schneiberg and Bartley 2008; Oates 2001; Smith 2018; Fossett and Gais 2002).
During the 1980s, state-local leadership, administrative capacity and fiscal health improved giving state and local leaders increasing discretion and opportunities to exert themselves in domestic policy governance. At the same time, the federal government developed or enlarged its regulatory powers to direct domestic policy and shift costs to other governments and groups using tools like unfunded mandates and preemptions. Now, two decades into the 21st century, the dynamic and systemic bias in the structure and function of the American political system’s domestic policy making and administration clearly favors nationalization - though states retain significant influence over core domestic responsibilities (e.g., public safety, education, public health), and is developing tools to fight back (Conland 2017; Kincaid 2008; Merriman 2019; Nolette 2015).
Many functionalists think the centralization of power in the federal government has gone too far and resulted in coercive federalism. Some note that decentralizing power can provide benefits in specific policy areas (Rivlin 2008; Rivlin 1992). Others favor the on-going centralization of power in the federal government to either end federalism and create a whole union or to alter American federalism to resemble an administrative federal system like Germany’s, where the national government determines the policy goals and the states determine how to achieve those goals within their bounded geographic territory. Unlike Germany’s federalism, however, since ratification of the 17th Amendment (1913), state governments have lacked formal and official representation in the federal government and have been reduced to the status of an interest group (e.g., Garcia v. San Antonio Metropolitan Transit Authority). State governments’ influence in federal policy-making now depends on when states are useful to federal policy-makers or can somehow threaten them (Smith 2008).
Understanding the difference between structuralism and functionalism can help us understand two very different and competing philosophies of federalism, but there are problems with both theories. First, neither structuralism nor functionalism matches the spirit of foedus, which understands federalism as an arrangement for working out solutions to common problems through a process of mutual adaptation and adopting joint policies that allow differentiation and more integrated relations as the autonomous entities decide (Friedrich 1968, 7). Viewed from this perspective, with a focus on foedus, the federal arrangement has established boundaries and rules, but allows a dynamic relationship between the autonomous parties. In other words, federalism does not prevent united and uniform policies but it establishes the process whereby those policies are adopted (Palermo 2020).
The second problem with structuralism and functionalism understandings of federalism is that in both theory and practice the allocation of powers and responsibilities to the different governments is shaped by more than the Constitution; it also includes executive, legislative and judicial decisions, the different governments’ administrative capacity and fiscal health, and public opinion (Smith 2007).This creates more flexibility in the allocation of powers and responsibilities than many structuralists favor and less than functionalists want. Finally, technical debates over structuralism versus functionalism are rarely the main source informing the public and politicians’ understating of the nature and meaning of American federalism. Rather, the source of their ideas are usually less technical and more ideological, cultural, and historical.
IV. The Two Constitutions
Ideology has profoundly influenced both the general public and the political responses to the COVID-19 crisis (Kincaid 2020). For many years, ideological disputes have shaped America’s policies more than expert opinion (Conlan 2017, 174-76). With no clear winner in the partisan disputes, the result is a combination of policy gridlock, volatility, and instability. One way to understand these ideological differences is to recognize that there is a conservative and liberal interpretation of the Constitution, which are so fundamentally different that the result is, essentially, two different Constitutions (Kessler 2018; Caldwell 2020; McClay 2019).
The conservative Constitution claims to be a faithful interpretation of the framers’ understanding of the Constitution. It rests on a theory of natural rights that belong to individuals due to the fact that they are humans and naturally equal (Kessler 2008). The purpose of government established by the Constitution is to secure those rights by fostering liberty and equality before the law. Political powers are dispersed and limited, thereby protecting individual liberty by creating competition politically, geographically, and economically. The conservative understanding of federalism is limited government and competition between the federal and state governments and across states.
The conservative interpretation was challenged during the 19th century from two very different directions. To defend aristocracy and slavery, some notable Southern politicians developed a compact theory that made the states the preeminent interpreters of the Constitution’s meaning (Calhoun 1943). An opposing interpretation emerged around the same time from continental European intellectuals who emigrated to America and found positions of influence in American colleges and universities. They favored a Darwinian or Marxian understandings of the state, and favored increased centralization and consolidation of power in the national government to facilitate harmonization and policy leadership (Elazar 1994). Both groups challenged the Constitution’s dispersion of power and competition between branches, governments, and firms as inefficient, and exacerbating tensions and conflicts.
The liberal interpretation of the Constitution coalesced at the beginning of the 20th century when a Northeastern version of Progressivism, based on Social Darwinism, displaced other Progressive interpretations. Influenced by the European emigres, President Woodrow Wilson favored centralizing power in a strong president, but it is was FDR who integrated many of those ideas into the U.S political system with his responses to the Great Depression. In the 21st century, the liberal interpretation is based on a premise that individual identity is largely constructed by one’s social environment. According to one (extreme) version of this argument, this assumption means that humans and human society are perfectible. It also means that individual rights are often subordinate to one’s identity in a group. If true, then improving society can be accomplished via a strong central government providing uniform policies that protect group identities and construct a positive, social environment.
Like the debate between structuralism and functionalism, the two Constitutions dichotomy can be overstated. The two Constitutions thesis is also divisive, because it obscures the fact that there are Progressive liberals who support federalism and decentralization (Gerken 2010), and conservatives who, when they control federal institutions, often become nationalists favoring the national adoption and implementation of their favorite policies.
Though insightful, the two Constitutions thesis also misses the boat by failing to appreciate a deeper cultural consciousness. Academics have been missing this foundation for a while now. For example, Ralph Ketchum, a prominent political scientist and professor of history and public affairs, could not identify the source of James Madison’s understanding of human nature though he searched for it in classic liberal thinkers like Locke, Hobbes, Montesquieu, and Bodin and in classical authors like Plato, Aristotle, Thucydides or Herodotus (1958). Ketchum would have found more success had he probed the federal tradition that prevailed widely in the colonial institutions and experience that preceded the Constitution and was taught to Madison by John Witherspoon at Princeton (McCoy and Baker 1991). If we wish to understand federalism and the American consciousness that favors limited government with dispersed powers, then we need to understand this debate that goes back to the 16th and 17th centuries when the foundations of modernity and the nation-state where laid. It is a debate over sovereignty versus popular sovereignty.
V. Sovereignty vs. Popular Sovereignty
The story starts with the religious and political wars of the 16th century. As a result of those wars, many were asking how to organize political systems that could provide order, stability, and harmony. Jean Bodin, after the excessive loss of life that included his professor in the St. Bartholomew’s Day Massacre of 1572, provided one answer with his theory of sovereignty. Bodin argued that security and order could best be achieved by centralizing power in a single sovereign who is accountable only to God, thus foreclosing differences, disputes, and conflicts. Bodin’s theory of sovereignty influenced the Treaty of Westphalia (1647), which created the modern nation-state. This treaty established science as the official epistemology of the state, and gave monarchs the sovereign authority to decide all preeminent political questions including what religion citizens of that nation must be. To describe it in modern terms, the theory of sovereignty posits that collective action is impossible and an overarching authority is necessary to order society and prevent a tragedy of the commons. Consequently, politics and governance is a top-down affair guided, hopefully, by intelligent and moral minds. European federalisms from Germany to the European Union are based on the theory of sovereignty, and thus favors unity and uniform direction in deciding objectives and decentralization in implementing and administering those policies.
Believing that human nature is flawed and, consequently, power is easily abused, critics of the theory of sovereignty began articulating its greatest flaw - the grand potential for abuse. Led by scholars and theologians, such as Philippe Duplessis-Mornay, Johannes Althusius, and Heinrich Bullinger, they reasoned that human needs are best achieved, not through centralizing power, but by forming associations with other humans. This way the problems of collective action could be resolved by forming binding agreements or covenants accepted by individuals through voluntary consent. These covenants create the conditions for a community based on symbiotic relationships to address common problems while simultaneously protecting individual autonomy by defining the expected obligations and limiting power delegated to the governing authority.
The inspiration for these ideas came from multiple sources. In that day, they had examples of covenant societies that included the Hanseatic League, Swiss confederation, Germanic tribes, and a spirit of association that organized guilds, churches, and society of the time (McCoy and Baker 1991, 15-17). Yet, it was the Reformation’s emphasis on the Bible that showed them how something quite common in their day could be the basis for a new political order. This idea was enhanced by a renaissance in Hebrew studies that reexamined the Hebrew Bible and learned how covenants were used to establish and govern the ancient Israeli republic (Nelson 2010).
These examples showed that a people could enter into agreements, or covenants, that establish a limited government to fulfill specific objectives laid out in the covenant. The theory of popular sovereignty held that people can overcome the tragedy of the commons by establishing a government through covenant, and holding that government accountable to maintaining the agreement and fulfilling its stated objectives. In other words, rather than establishing peace and stability by repressing differences as Bodin suggested, covenants establish associations that allow different groups to live together in mutual benevolence while protecting dissent and diversity.
Thus, well before Locke or Montesquieu, a theory of popular sovereignty was developed that emphasized a division of powers within every level of organization, checks and balances, and a right to revolution if the organization abuses its powers (McCoy and Baker 1991, 13). These associations were called pactum foederis, and later became known as federal covenants. It is from foedus that federalism is derived (Føllesdal 2003, 3).
Pactum foederis was carried to America in 1620 aboard the ship, Mayflower. Onboard that ship, all adult males intending to reside at the New Plymouth colony consented by signature to the Mayflower Compact, a three-paragraph document that created a new society, defined that society’s fundamental values and commitments, and established a government for that society. Most of the major groups that followed the Pilgrims to America came from covenant traditions.
The Mayflower Compact “set the mold for consensual self-government as ideal and practice” (Randall 2020). Over the next 80 years, American colonists wrote over 100 other founding documents similar to the Mayflower Compact. Where the Mayflower Compact joined individuals into a society, future covenants joined communities into a larger entity that would simultaneously recognize and preserve the smaller units’ freedom. These agreements had three peculiarly American characteristics: they created a federal state that grants some power to a center and retains some for self-rule; participants consented to the agreements by signing their names to the document; and new members were added as equals (Lutz 1988).
One finds in these documents the seeds of constitutionalism that defines the powers, responsibilities, and limits of government, and federalism whereby a new society is created while also preserving the integrity and liberty of the covenanting parties. These founding documents inspired three fundamental concepts of federalism later adopted by the U.S. and state constitutions. The first, popular sovereignty, posits that individuals possess the right and ability to assemble and constitute themselves, that government exists to serve the people, and that the people have the final and ultimate control over government. In other words, the people “can divide up political power and parcel it out to whatever government they wish, or keep some of it in their hands and give it to no government” (Lutz 1990, 19 and 267). From the principle of popular sovereignty comes the other two foundational concepts, limited government and dual citizenship – the idea that individuals can be citizens of multiple governments (state and federal).
COVID-19 is exposing many of the different understandings of what American federalism means and how it works. But at its most basic, COVID-19 is part of the larger debate over whether America should be governed according to a theory of popular sovereignty that emphasizes community and associations while also preserving local control and self-governance or by the theory of sovereignty with its top-down, elite-led governance.
When the U.S. Constitution was ratified in 1788, its first words, “We the people . . .” appealed to the theory of popular sovereignty that had been practiced and developed in the colonies since 1620. The federal system created by the Constitution was unique in many ways, but faithful to the philosophy of foedus that had informed American governance for nearly 170 years, and which sought a balance between shared-rule and self-rule, community and liberty.
Though federalism’s roots are now largely obscure, forgotten by scholars and elites, they are still part of the American identity and imagination, and they continue to influence contemporary society (Gorski 2017). In our contemporary debates, we would do well to understand and respect the theory, practice, and values that underlie American federalism. For the goal is still to build a unitary political community that can address common problems and also respect and protect differences. America’s motto, e pluribus unum (from the many, one) is also the ideal of foedus.
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