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Revive Real Federalism: Red State Challenges and Strategies

Posted on Sunday, September 10, 2023
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by David P. Deavel
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AMAC Exclusive – By David P. Deavel

Supreme Court Building, the Scales of Justice and the U.S. Constitution to depict Federalism
The American experiment was an experiment in federalism. While Article I, Section 10, denies the states powers that are reserved to Congress, the Tenth Amendment explicitly declares, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This was absolutely essential to keeping the fledgling nation together. Can it do so again? We need to understand its benefits properly and how to approach it in our current situation. Recent events in Texas help us get at all these issues. First, however, what are the benefits? Beyond the role of a federal structure in convincing colonies to band together at the Founding, Justice Louis Brandeis famously identified a robust federalism as a positive good in New State Ice Co. v. Liebmann (1932) when he declared that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The states, it was thought, would act like scientists and learn from their own and each others’ experiments in the long run. The English writer G. K. Chesterton admired this quality, declaring of one of his fictional American characters that he “knew whole States which are vast and yet secret and fanciful; each is as big as a nation yet as private as a lost village, and as unexpected as an apple-pie bed. States where no man may have a cigarette, States where any man may have ten wives, very strict prohibition States, very lax divorce States….” Like Brandeis, Chesterton thought this a glorious aspect of American life, even if the smoking, drinking Catholic writer opposed all the examples he attributes to the American states. He, too, thought that Americans would learn from each other. But as at the beginning of our country, keeping and reinvigorating the power of the states is not simply a nice thing that allows us to make a good nation better. It is necessary to keep our country together. Today, we can say it this way: if blue states wish to take on novel and self-destructive experiments (and they do), red states need to be able to take on experiments in common sense that seem novel only to a deeply mad world. Americans have been voting with their feet, fleeing in large numbers from the increasingly foul-smelling laboratories full of broken glass whose door signs read names such as California, Illinois, Minnesota, and New York. As long as there is a valve to release the dangerous pressure in those left-wing labs, there is the prospect of a reverse pressure that can be put to those states to back away from their worst policies. Given that blue states seem hell-bent on proceeding with their own Frankenstein projects based on radical environmentalism, critical theory, and magical left-wing economic theories, it is absolutely necessary just to allow a place where the 74 million people who voted for Donald Trump to call home. But while blue states have been allowed and even encouraged to take on their own leftist vision, with only the prospect of future reversals by state and federal courts, red states are under pressure both from the federal government and from the local Democratic power structures that make cities in red states as dysfunctional as anything in New York, Illinois, or California. Texas’s recent tangles with the irresponsible and lawless Biden administration over immigration control illustrate the former, while the blocking of the so-called Death Star Bill in the Lone Star State demonstrates the latter. The Biden Administration has attempted to stop the use of floating buoys in the Rio Grande that have effectively deterred illegal immigrants from crossing. This week the Administration made the suggestion that they will further attempt to stop red states from sending illegal immigrants to the supposed “sanctuary cities” that have boasted of their openness to them. The suggestion is effectively to redraw the borders of the United States by requiring illegal immigrants who have gained admittance to stay in Texas and Arizona. In other words, border states can’t make the blue states live up to their own boasts. While it is not clear what will happen with the attempt to make border states bear all the burdens of our federal government’s fecklessness with a new “border,” a federal judge this week ordered the buoys to be moved by September 15. Though Texas will appeal this decision, the fact that the state is dependent on the judiciary shows how bad things are. Congressional Republicans have not been willing to act seriously on this issue (or many others). Texas and other red states have to act on their own and in concert with others. The good news is that there is at least some support for fighting the federal government. Not enough support, apparently. For Texas Attorney General Ken Paxton, whose record fighting the Biden Administration in court succeeds at the rate of ninety percent, is being impeached for what look to be purely political concerns. To sacrifice one of the most successful fighters against the tyranny of the Biden regime is insane. But what is worse is that there seems no will to fight against the blue cities that prevent red states from being true laboratories. This summer Texas passed HB 2127, titled the Texas Regulatory Consistency Act, but labeled by the left and their media adjuncts the Death Star Bill. The bill was to establish definitively that Texas counties and cities do not have power to establish laws and regulations without state authorization in areas such as business, labor, finance, agriculture, occupations, and property that are governed by Texas codes. In an article about how a Travis County judge last week struck down the bill as violating the Texas Constitution (the decision will be appealed), The Hill characterized this bill as “restricting legal power of progressive cities.” This is surely right. The aim is indeed to stop Texas cities from continuing to turn their part of the laboratory into the Portland political-chemical spill. Yet as Texas Monthly pointed out, the lawsuit made by three blue cities challenging the bill was aided by friend-of-the-court briefs from Republican cities Arlington, Denton, Plano, and Waco. While it’s understandable that local politicians are jealous of their power, it’s a mistake by Republicans to fight against greater control at the level of the state. Greg Abbott, who signed the bill, has been correct to say that the danger to Texas is turning it into California. Though many on the right and the left might try to justify more local control on the basis of “democracy” or even “federalism” itself, the American ideal, with its roots in the U. S. Constitution that is all about states, is expressed by Dillon’s Rule. Named after the nineteenth-century Ohio Judge Forrest Dillon, it holds that counties and cities are “creatures” and “the mere tenants at will of their legislature.” Our republican and federal system gives the authority to states and not to counties and cities. To allow cities and counties to go their own way is to negate the way in which our democratic federal and republican system is supposed to work. It is to stop the way our laboratories work. And part of the reason for that is because blue cities are simply following what our left-dominated national government wants. At present, leaving cities to go their own way means not more diversity but more outposts of the dreary, dangerous, depressing, and monochrome agenda of our “progressive” regime. Some Republicans might be tempted to fight against bills like HB 2127 as Republicans in Texas did out of a misplaced application of H. L. Mencken’s understanding of democracy as the idea that the people know what they want—and deserve to get it good and hard. But this is a political as well as a legal and constitutional mistake. Red state executives and legislators need to show that they care about those who find themselves in failed and failing cities that may as well be in New York or New Jersey. While these politicians might well lose a few votes in Plano or Waco (though it is unclear if any Republicans other than government officials would defect), they more likely will gain votes from voters who see their neighborhoods and their lives improve through sane economics, better policing, and protection from the chaos of large-scale immigration and from overweening administrative agencies. Federalism can definitely be revived in America, but it will require Republican leaders to wake up to their own need to focus on ways of keeping the Biden Administration and the administrative state at bay, subdue their own blue cities, and (a final point) figure out how to tame their own administrative state apparatus and keep their legislators in charge. Administrative bureaucracies in states are just as left-wing and dangerous as those in Washington. If they do this, Republicans will not only improve their own prospects, but they will make their people’s lives better and maybe keep our no-longer fledgling nation together. David P. Deavel teaches at the University of St. Thomas in Houston, Texas, and is a Senior Contributor at The Imaginative Conservative. Follow him on X (formerly Twitter) @dpdeavel.

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Rob citizenship
Rob citizenship
8 months ago

Very thorough description of the Federalist system and a good explanation of why it should be revived Well Done Mr. Deavel . It will be great if large numbers of Republicans gain insight to the advantages of Federalism, and as you mentioned in the last sentence of the article are able to improve their own prospects , contribute to making people’s lives better and help to keep the Nation together. There is much to consider in understanding the topic of Federalism however it can be grasped for the value that has to do with stopping tyranny. And the idea of having plenty room for new ideas to develop. Thinking about the song ” Don’t Fence Me In ” from Way back — 1940’s , or even 1930’s — sort of identifies the spirit politically. I reckon Conservatives have a better appreciation of the Federalist system than most Republicans do , so maybe they can get together over some coffee, listen to ” Don’t Fence Me In ” and come up with some great ideas that will help maintain the United States of America as the Land of the Free and Home of the Brave and respect the spirit of Faith, Family and Freedom. Great work you did here David .

David Millikan
David Millikan
8 months ago

Excellent article.
Federalism with Civics MUST be taught back in schools again. It was the democrats CONTROLLED Teachers Union who removed this from schools in the first place so our children would not know their Rights or how our government and economy functions.
So for the past 45 years since Carter they have continued the Dumbing of America and pushing it further today.
Every American should read the U.S. Constitution and Federalist Papers and LEARN their God given American Rights.

Jim
Jim
8 months ago

By forcing Texas and Arizona to keep migrants and not ship them to blue sanctuary states is an effort to turn Texas and Arizona blue.

Brian
Brian
8 months ago

Bottom line: never vote for a democrat nor a RINO!

Martin Hernandez
Martin Hernandez
8 months ago

Borders shoe close 100%
All or at least any immigrant who come on last 30years from any part of world must be return to their origin country,
Biden must be kick out !
We need clean all our agencies, FBI, CIA, IRS, get rid of HR (who just protect criminals) , we must clean from all corruption,
We must bring all our manufacturers back home, we don’t need to be dependent from China,
USA should sale land to other’s countries, no illegal should be allowed to vote!!

Pat R
Pat R
8 months ago

When thousands of Californians began leaving the state heading east, most went to Colorado, a Republican state then. Next thing you know, CO is a Dem-run state. I feared when more began moving to Texas, the same thing will happen. And here it is beginning because those California deserters never considered it was the Dem leftist policies causing the issues, not just the governor himself. The same will happen in FL as multitudes left NY for a less oppressive state (taxes/regulations).
So when Minnesotans head south, which Rep-run state will they move to and begin taking over? I can’t help but wonder what percentage of those relocating have been enlisted to do so for the express purpose t change the political dynamic of those conservative states to liberal, leftist, Democrat states?

Weck
Weck
8 months ago

My doctor tells me that my body functions best and is the healthiest with the smallest number and least amount of medicine absolutely necessary. My doctor, being a wise man, says the same applies to government programs and taxes.

Melinda
Melinda
8 months ago

The federal government has taken over many areas of our lives that should belong to the states. I hope we can get back to federalism. Ifbi could afford to move i would leave this liberal mess of a state (WA). Even tho I’m in a conservative area, I’m still governed by the state.

Morbious
Morbious
8 months ago

Kinda tough to fight the big blue cities. Just ask people in rural Illinois or New York. Im in ohio and so far the rest of the state has preserved some autonomy from the malignant influence of the big cities but the trendlines aren’t encouraging. The founders somehow realized that as population density increases so does uniformity of thought. As long as rural areas lose residents to the blue cities this trend will dominate our politics.

Robert Zuccaro
Robert Zuccaro
8 months ago

Went on “Memory Lane Tour” of the top stories of 1978 to 1982 last night and was shocked to read of the “crushing” national debt of… $8.5 billion dollars! I remember a billion used to be a lot… now it’s chump change. So it seems to me that not only do we need to keep Demcrats “at bay” but everyone in office!

Outstate
Outstate
8 months ago

In response to Pat R’s comment. Minnesotans moving south, I will soon be one of them, will be primarily conservative. Minnesota is a vastly red state, only having liberal poison forced down our throats by the comparatively small geographic area of Mpls/St.Paul and the labor union influenced “arrowhead” region. We are a perfect example of how a handful of dark blue cities can incapacitate the concept of Federalism.

Chris
Chris
8 months ago

A definition of federalism that I like to use is that it is the right to vote with your feet. In the fight to preserve federalism we should point out how Democrats want to take away a voting right, The right to vote with your feet is a very important, if not the most important right to vote.
No matter what safeguards are put in place, there will always be some places where people feel oppressed by elected officials — officials who enjoy the support of the local majority/super majority. Their efforts at the ballot box being defeated, and even hopeless, those people need the right to be able to chose a community or State that does things more to their liking. The Left, by implementing oppressive policies at the national level, take away people’s right to vote with their feet as they can no longer escape those policies.
While I applaud reigning in blue cities in Texas (especially as a resident of one turning more blue everyday) we must be careful that it not backfire on us should the Dems take over the Texas State gov’t one day (again). It’s almost as dangerous to concentrate that much power in Austin as it is to put it in DC. Concentrated power draws the power hungry and the Left are the most power hungry people there are. (That’s the other big win of federalism, dispersed power means less of it for the power hungry to grab at).
My preferred remedy would be to break up the larger States*. We should be a nation of probably 200+ States, not 50. Neither Texas nor California nor Florida nor New York should play as large a role as they do in Presidential elections and national politics. As I don’t expect that to happen, I do think there are valid reasons to have a degree of federalism within States, not just between States and the national gov’t. In other words, people need the right to vote with their feet inside States, not just between States.
*Yes, even my beloved Texas. As a nod to history, an accommodation of cultural ties, and as a way of selling the idea I propose an addition level of gov’t. If so desired, Texas could break up into a half dozen or so States from the national perspective (Senators, electoral college, etc.) but then those States would organize into a regional Texas authority having the same borders as before. Some powers would go to the new States (sub States if you will) while some powers would be at the regional level. This could be accomplished through a “Compact between States” and would only need approval from Congress to make it Constitutional. (Each break-up/reassembly would be a unique Compact for just that one former State, i.e. they’d each get to do things their own way).
Yes, it’s a radical approach but I’ve come to identify myself as a radical conservative. Too many conservatives focus on conserving the forms and forget what those forms were put in place to protect, principally individual liberty. It’s clear those forms are failing. It’s no fault of the Founders, they did an amazing job, but there was just too much that they couldn’t foresee. Even Jefferson thought we’d need a revolution every 50 years or so. It’s time to build on the Founder’s start and reshape the forms based on the lessons learned over the last 250 years. Let’s refocus our efforts on conserving personal liberty and less on preserving the forms whose job it was to do that. The foundation is solid and should be preserved but what needs fixing is more than some minor tweaks here and there and will involve some radical changes. We have a choice, either implement our own radical changes or sit by and watch as the Left implements theirs. As a conservative I know *any* change is fraught with danger so it must be done extremely carefully with due consideration — the last thing we need to do is rush it. Much discussion and research and even testing needs to be done. But that’s all the more reason to get started now, so we have the time to do it right. We need what time we have remaining in order to get it done before the Left rushes their changes through. The window is closing.

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