Issue #24, Spring 2012

A New Progressive Federalism

Distrust of states’ rights exists for good historical reasons, but today, minorities and dissenters can rule at the local level.

Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think “federalism” is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism’s past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Progressives have long looked to the realm of rights to shield racial minorities and dissenters from unfriendly majorities. Iconic measures like the First and Fourteenth Amendments, the Civil Rights Act, and the Voting Rights Act all offer rights-based protections for minorities. But reliance on rights requires that racial minorities and dissenters look to the courts to shield them from the majority. If rights are the only protections afforded to racial minorities and dissenters, we risk treating both groups merely as what Stanford Law Professor Pam Karlan calls “objects of judicial solicitude rather than efficacious political actors in their own right.”

Minority rule, by contrast, allows racial minorities and dissenters to act as efficacious political actors, just as members of the majority do. Think, for example, about where groups we would normally call a “minority” now actually constitute a majority: a mostly African-American city like Atlanta, a city such as San Francisco where the majority favors same-sex marriage, or a state like California or Texas where Latinos will soon be in the majority. In each of those cases, minority rule—where national minorities constitute local majorities—allows minorities to protect themselves rather than look to courts as their source of solace. It empowers racial minorities and dissenters not by shielding them from the majority, but by turning them into one.

Why should we care? We should care because the success of our democracy depends on two projects. The first is integration—ensuring that our fractious polity remains a polity. The second is dialogue—ensuring a healthy amount of debate and disagreement within our democracy. We have made progress on both fronts, but there is a great deal more work to do. Our social, political, and economic life still reflects racial divides. Our political system is immobilized; the issues that matter to everyday citizens are stuck in the frozen political tundra we call Washington. We have long looked to deeply rooted rights as tools for promoting equality and protecting dissent. But everyday politics can be just as important for pursuing these goals. We should look to minority rule, not just minority rights, as we build a better democracy.

An emphasis on minority rule isn’t intended to denigrate the importance of minority rights. It is simply to insist that while rights are a necessary condition for equality, they may not be a sufficient one. Too often we assume in the context of race that rights alone will suffice, as if the path to equality moves straight from civic inclusion to full integration. We miss the possibility that there is an intermediary stage: empowerment. Such a strategy would be impossible without the hard-won battles of the civil rights movement. But it’s possible to believe in, even revere, the work of that movement and still wonder whether rights, standing alone, will bring us to full equality. Civic inclusion was the hardest fight. But it turns out that discrimination is a protean monster and more resistant to change than one might think. We may require new, even unexpected tools to combat discrimination before we reach genuine integration.

Similarly, while the First Amendment has long been thought of as part of the bedrock of our democracy, it does not represent the only tool for furthering dialogue and nurturing dissent. Decentralization gives political outliers one of the most important powers a dissenter can enjoy—the power to force the majority to engage. It thus helps generate the deliberative froth needed to prevent national politics from becoming ossified or frozen by political elites uninterested in debating the hard questions that matter most to everyday voters.

Federalism and Race

Advocates of racial justice have long been skeptical of federalism. It is not hard to figure out why. The most important guarantors of racial equality—the Fourteenth Amendment, the Civil Rights Act, the Voting Rights Act—were passed at the national level and resisted at the local level. And it’s not just history that blinds us to the possibilities associated with decentralization and minority rule; our very idea of equality inspires wariness. We have a firm sense of what “integration” or “diversity” looks like: a statistical mirror. “Diversity” is a much-revered term for the idea that institutions should look like the community from which they are drawn—that they should “look like America,” to use one of Bill Clinton’s favorite phrases.

We are thus quite dubious about institutions that depart from statistical mirroring, including those where racial minorities dominate. That skepticism runs so deep that it is inscribed in our very vocabulary. Our terminology is bimodal. We classify institutions as either “diverse” or “segregated.” The former is in all cases good, the latter in all cases bad. Thus, when racial minorities constitute statistical majorities, we call those institutions “segregated” and condemn them as such.

Consider an example from the mainstream media. In 2006, The New York Times wrote a story on Nebraska’s decision to address school failures in Omaha by dividing the city into “three racially identifiable” school districts. Each district was racially heterogeneous, but one was predominantly black, one predominantly Latino, and one predominantly white. What made the story unusual was that the plan’s author was Ernie Chambers, the only African American in Nebraska’s legislature and a long-time civil rights advocate.

Care to venture a guess as to The New York Times headline? “Law to Segregate Omaha Schools Divides Nebraska.” The Times condemned majority-minority school districts as segregated simply because of their racial make-up. And if Omaha is segregating its schools, who wants to be on the wrong side of that fight? School quality matters, of course. But the shorthand the Times was using wasn’t about school quality; it was about which group dominates the student body and the school committee. And we forget that it is perfectly plausible to centralize some things and not others; if you are worried about economic inequality, you can run your schools at the local level without funding them there. That’s precisely what Ernie Chambers wanted to do; he thought the new arrangement would ensure that school quality would not suffer.

Or consider the Supreme Court’s equality jurisprudence. The Court has condemned majority-minority electoral districts as “political apartheid.” A conservative majority also held in City of Richmond v. J.A. Croson Co. (1989) that a minority set-aside program is more constitutionally suspect because it was enacted by a black-majority city council. Nor is it only the color-blindness camp that views minority-dominated institutions with skepticism. The same majority-minority electoral districts damned by the Court’s conservatives as “balkaniz[ing]” were termed “the politics of the second best” by its liberals. Consistent with the view of many progressives, the liberal justices treat the creation of such districts as a mildly distasteful strategy for ensuring a diverse legislature. Indeed, in the most recent schools case, every Supreme Court opinion—those penned by liberals and conservatives alike—condemned heterogeneous schools where minorities dominated as “segregated.”

Critical distinctions get lost when we treat these issues as debates about segregation versus integration. The most obvious is that these institutions may be different from the racial enclaves of Jim Crow. The less obvious is that, viewed through the lens of federalism, we might imagine these sites as opportunities for empowering racial minorities rather than oppressing them.

It’s hard to see the case for majority-minority institutions because the diversity paradigm offers such a deeply intuitive vision of fairness. We laud diversity on the grounds that racial minorities bring a distinctive view or experience to democratic decision-making. Those who favor it wax eloquent about the dignity associated with voice and participation. Given its many virtues, one might wonder why anyone would quarrel with the notion that democratic bodies should look like America.

But the oddity of this theory for “empowering” racial minorities is that it relentlessly reproduces the same inequalities in governance that racial minorities experience everywhere else. Diversity guarantees that racial minorities are always in the minority for every decision where people divide along racial lines.

Federalism and localism, in contrast, depend on—even glory in—the idea of minority rule. Neither theory requires you to like every policy passed at the local or state level any more than a nationalist has to agree with everything that Congress passes. But our current system rests on the assumption that decentralization can produce a healthier democracy in the long term. Ours is a world in which decision-making bodies of every sort (school committees, juries, city councils) are dominated by groups of every sort (Italians and Irish, Catholics and Jews, Greens and libertarians). We don’t worry about this representational kaleidoscope—let alone condemn it as “segregated”—merely because one group or another is taking its turn standing in for the whole. Perhaps we shouldn’t worry when it is a racial minority group in that position.

Minority rule can promote both the economic and political integration of racial minorities. We have long understood minority rights as furthering those goals, which is why we care so much about them. But minority rule can further these goals as well. Often when we talk about democratic equality, we focus on its symbolic benefits rather than its material ones. We talk about the dignity of political participation but wrinkle our noses at the idea of political patronage. But history suggests a more muscular account of what a democracy can do for minorities. Politics can play an important role in promoting economic integration, and economics can play an important role in promoting political integration.

Pam Karlan and New York University Law Professor Sam Issacharoff, for example, have argued that the economic progress of African Americans has turned not on the vindication of civil rights, but on business set-asides, affirmative action, and government employment. In their view, these programs came about precisely because blacks were able to elect their candidates of choice in majority-minority districts. “[T]he creation of a black middle class,” they write, “has depended on the vigilance of a black political class.” A group of economists at George Mason University found that black employment rates, for instance, rise during the tenure of black mayors, an effect that is particularly pronounced for municipal jobs. One might even argue that this was the story of integration for white ethnics, as Justice David Souter once argued. In Souter’s view, the Lithuanian and Polish wards of Chicago and the Irish and Italian political machines in Boston helped empower these groups. That power, in turn, “cooled” ethnicity’s “talismanic force.” In these examples, political power didn’t just facilitate economic integration. The economic advantages associated with political power exerted a gravitational pull on outsiders, bringing them into the system and giving them a stake in its success.

Admittedly, this argument involves a more rough-and-tumble account of democracy than we read in our civics textbooks. And it certainly offers a less pristine view of integration than the one we associate with the rights model. But while we have long recognized the dignity conferred by the rights afforded by the Fourteenth Amendment or civil-rights statutes, we should also acknowledge the dignity involved in groups’ protecting themselves rather than looking to the courts for help. Indeed, this notion resonates entirely with the lesson of the civil rights movement. Rights were not “conferred” upon African Americans. They fought for them, pushing reluctant national leaders to do the right thing.

Those who favor racial integration might also value minority rule for reasons that have nothing to do with its material benefits. We have long believed that political participation matters for equality. But we typically think of participation in highly idealistic and individualistic terms while ignoring crass concerns like who wins and who loses. Academics thus praise diverse democratic bodies because they involve the “politics of recognition”; they grant racial minorities the “dignity” of voice, ensuring that they play a role in any decision-making process.

However, when one turns to the question of winners and losers, the limits of the diversity paradigm are clear. While the diversity paradigm guarantees racial minorities a vote or voice on every decision-making body, it also ensures that they will be the political losers on any issue on which people divide along racial lines. Racial minorities are thus destined to be the junior partner or dissenting gadfly in the democratic process. So much for dignity.

Minority rule, in sharp contrast, turns the tables. It allows the usual winners to lose and the usual losers to win. It gives racial minorities the chance to shed the role of influencer or gadfly and stand in the shoes of the majority. Local institutions offer racial minorities the chance to enjoy the same sense of efficacy—and deal with the same types of problems—as the usual members of the majority. Minorities get a chance to forge consensus and to fend off dissenters. They get a chance to get something done and to experience the need for compromise, as dissenting from the margins normally comes with the luxury of ideological purity. And as with members of the majority, racial minorities don’t just have a chance to represent their own group—they have a chance to take their turn to stand in for the whole, which Princeton Professor George Kateb describes as a key feature of representative democracy.

Issue #24, Spring 2012
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Kevin Carson:

It's worth bearing in mind that even in the old day federalism was put to progressive uses. In the 1850s, when the national government was firmly controlled by pro-slavery Democrats, free juries in the north commonly nullified the Fugitive Slave Act. And had the Democrats not been crazy enough to split into moderately pro-slavery and batshit insane pro-slavery wings and thus hand the election to Lincoln, it seems quite plausible that an anti-slavery secessionist movement would have emerged in New England and the Burnt Out District.

Mar 14, 2012, 2:43 PM
Bob hajfler:

It is interesting that the author ignores the severe economic implications of federalism. For as long as capital can cross borders with impunity and if taxation were to increasingly devolve to local bodies then the democracy of federalism would result in a race to the bottom of neo-liberal Paul Ryan type economics, right to work labor policies, and life threatening deregulation.

Mar 21, 2012, 2:56 PM
@Bob hajfler:

Well, no. I mean, if the people within any given jurisdiction choose to govern themselves in such a way as to bottom out, wouldn't that be their own choice? And wouldn't it be fully within those people's ability to remedy the situation as they best see fit?

The implications of this sort of federalism only have to be severe if people use their newfound independence poorly. That would be of their own making, for better or worse, would it not? And as such, they could choose to fix it. Or not.

The area I live in is a resort area and needs people trained in the hospitality business. We really don't see the need here for a lot of green workers, but there is a lot of money out there right now for that sort of thing. It's a waste, when it is directed by some politicians in DC trying to buy votes. Let that money stay local and be used locally. It's wasteful to cycle it through DC and K Street.

Mar 21, 2012, 11:27 PM
Dennis George:

As a conservative libertarian, I find much to like here.

The biggest problem with 'getting states rights right' is mistrust - much of the left is convinced federalism is simply a code word for persecuting minorities, and much of the right is deeply skeptical of measures such as medicinal marijuana at the state level.

That mistrust is real, it exists, and it is not easy to overcome.

Federalism - or states rights - or local ism - done correctly - offers a real possibility of resolving our present political logjam.

Mar 22, 2012, 10:57 AM
John Lambert:

I am also a libertarian and enjoyed this article.

Using the 2008 election, why should we accept a Republican from Arizona who wants to force a conservative agenda on California. Why should we accept a Democrat from Illinois who would want to force a liberal agenda on Texas?

Can the people of these states rule themselves? If you don't like what your state is doing, you can always move to a state more in line with your views.

Will states abuse their authority. OF COURSE! They are political entities and all political entities do.

However, it is easier to force change on the local or state level compared to the federal level.

If the feds pass a bad law, like the NDAA, it is much harder to change the law and the bad law effects everyone. Where as a state passes a bad law, it just effects those in that state.

We can accept McDonald's and Burger King fighting for our dollars. Why not make states fight for your citizenship and tax dollars?

May 9, 2012, 4:58 PM

The problem is that "States Rights" is viewed as a code word for "Someone might make a choice I disagree with".

And let's face it- no one is willing to allow someone else to do that. We really only want others to have the right to make the choices we want them to make.

Oct 8, 2012, 8:27 AM

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