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.

If the “politics of recognition” theorists are correct that the diversity paradigm—granting racial minorities a voice on every decision-making body—represents an acknowledgment of equal status, then federalism and localism acknowledge the ability of racial minorities not just to participate, but to rule. In place of what some call the “politics of presence,” we have the politics of power. In place of the dignity of voice, we have the dignity of decisions.

The effects of turning the tables are not, of course, confined to racial minorities. It also deprives whites of the comfort and power associated with their majority status. The notion of turning the tables thus taps into a deeply intuitive idea of democratic fairness. Democracy works better when the usual losers sometimes win and the usual winners sometimes lose. Everyone ought to experience, in the words of President Bush, a good “thumpin’.”

We have long thought that minority rights further economic and political integration. We have long associated minority rights with material advancement and expressive dignity for people of color. But we have ignored the possibility that minority rule might promote a similar set of aims, and thus offer another tool for helping us transition from a world of racial oppression to one of genuine equality.

Dissenting by Deciding

Progressives, of course, care a good deal about nurturing and protecting dissent. Perhaps it reflects their sympathy for the underdog. Perhaps it’s because progressives often are the underdogs. But dissent matters to progressives even when they think they can build a majority for their positions. That’s because it’s hard for progressive issues to get traction these days. It’s harder still to get something—anything—done in Washington. Dissent helps create the deliberative churn necessary for an ossified political system to move forward.

The problem is that progressive views on dissent exhibit the same shortcomings as our discourse on race. The statistical integration model dominates here as well, albeit in a less explicit form. Consistent with the diversity paradigm, we typically assume that dissenters should be represented in rough proportion to their share of the population—one lone skeptic among twelve angry men. While we romanticize the solitary dissenter, we have no celebratory term for what happens when local dissenters join together to put their policies into place. Instead, we condemn governing bodies dominated by dissenters as “lawless” or “parochial,” as Fordham Law School Professor Nestor Davidson and University of Virginia Law Professor Richard Schragger have both found in their studies of the discourse surrounding local power.

Here again, critical distinctions get lost when we focus on minority rights and neglect minority rule in thinking about dissent. We miss the possibility that governance can be a vehicle for dissent. For example, we typically don’t use the word “dissent” to describe San Francisco’s decision to issue same-sex marriage licenses or the efforts of the Texas school board to rewrite its history curriculum. Yet the people involved in these decisions subscribe to the same commitments as those whom we would in other contexts unthinkingly term “dissenters.” They simply dissented not through a blog or a protest or an editorial, but by offering a real-life instantiation of their views. They were dissenting by deciding. And yet the very idea of a dissenter who decides seems like a contradiction in terms. Even though our highly decentralized system offers numerous examples of dissenters wielding local power, our basic understanding of dissent is built around the assumption that dissenters don’t have the votes to win. We expect dissenters to speak truth to power, not with it.

Just as it is odd that we affix the dreaded label “segregation” to institutions where racial minorities dominate, so too it is strange that we condemn decisions as parochial simply because political outliers make them. Just as the right to free speech has played an important role in shaping national debates, so too has minority rule. Consider the way the debate over same-sex marriage has unfolded during the last decade. Supporters of same-sex marriage spent many years exercising their First Amendment rights. They wrote editorials, marched in parades, and argued with their neighbors. That work played a crucial role in fueling a national debate on the question.

But so, too, did the decisions of San Francisco and Massachusetts to issue same-sex marriage licenses to gay couples. Note, for instance, how different these instances of minority rule looked from the bread-and-butter activities of other proponents of same-sex marriage. The people who put these policies in place made the case for same-sex marriage in a way that abstract debate never could achieve. Beamed into our living rooms were pictures of happy families that looked utterly conventional save for the presence of two tuxedos or two wedding dresses. By taking advantage of the opportunities afforded by minority rule rather than relying on minority rights, proponents of same-sex marriage remapped the politics of the possible.

If one is debating something in the abstract after all, the hardest argument to defeat is the parade of horribles. How exactly will you prove they won’t occur? Think, for instance, of Governor Arnold Schwarzenegger’s claim that there would be rioting in the streets in response to San Francisco’s decision. It’s easy to dismiss this allegation in hindsight, but I must confess that when I was in Cambridge on the day that Massachusetts began marrying same-sex couples, I assumed that thousands of protestors would be bussed into the city. Instead, we saw a peaceful if slightly carnival-like atmosphere, with the only source of excitement being the Gay Men’s Choir.

The decisions issued in San Francisco and Massachusetts didn’t just put to rest a variety of dire arguments about what would happen if same-sex couples were allowed to marry. They helped reveal something about where same-sex marriage fell on people’s priority lists. To be sure, when asked, “yes or no to same-sex marriage?” most people continued to say no. But same-sex marriage was not enough to motivate protesters to flock to California or Massachusetts, and that is something we could not possibly have learned from an abstract debate or opinion poll.

Minority rule also lets dissenters engage in what political scientists term “agenda setting.” It’s one of the most powerful—and volatile—tools any minority enjoys. That’s because when a minority dissents by deciding, the majority can’t just ignore the dissenters, as majorities are wont to do. That option is simply unavailable when dissenters use local power to issue a decision. In that situation, the majority must do something to get the policy overturned. Minority rule shifts the burden of inertia and thus enables dissenters to force the majority to engage.

Why does this matter? Our national system is notoriously sclerotic. There are issues that matter quite a lot to people on the ground but never make it onto the national agenda because elites have no interest in debating them. Some issues are highly salient to everyday people, which is precisely why those in power don’t want to go anywhere near them. Gay rights is one of those issues. Immigration is another. Note, for instance, that both sides of the debate on immigration have struggled to get the federal government to act on this question. But Arizona’s recently enacted immigration law has galvanized national debate and forced elites to engage.

It is important here to note that even when states and localities pass policies that progressives dislike, getting the issue on the national agenda is what’s of value. With the issue on the national agenda, progressives, of course, still need to win the fight in Washington, as I discuss below. But that’s just as true of the nationalist model that progressives favor. The lesson that progressives often miss is the way that these two models interact. Local decisions can serve as a much-needed catalyst for national debates. Local politics don’t undermine national politics; they fuel it.

There are others ways in which minority rule can serve the same ends as minority rights. As in the context of race, we often laud minority rights because they can knit political outliers into the polity. But the odd thing about a rights strategy for protecting dissent is that it pushes dissenters outside of the project of governance. They have a right to speak their mind, but only when they speak for themselves. Minority rule, by contrast, pulls dissenters into the project of governance. When dissenters wield local power, they can no longer jeer from the sideline. Instead, they have to suit up and get in the game. Minority rule thus requires dissenters to do just what the majority is accustomed to doing: deal with criticism, engage in compromise, figure out how to translate broad principles into workable policies. Abstraction and ideological purity are the luxuries enjoyed by policy-making outsiders. When dissenters have an opportunity to govern, however, they must figure out how to pour their arguments into a narrow policy space. Think about the movement to bring religion into schools. As members of the Christian right have fought to put their preferred policies into place, their positions have shifted. They have moved from teaching the creation story to merely “teaching the controversy.”

Minority rights, then, are not the only means available for protecting political outliers and integrating them into the polity. Minority rule can serve precisely the same ends. It would be useful for progressives to recognize that fostering dissent involves not just the First Amendment, but federalism; not just minority rights, but minority rule.

Racism, Parochialism, and the Costs of Local Power

One might accept all of these arguments and yet still worry about local power because of the twin problems of racism and parochialism. Local power doesn’t just empower racial minorities and dissenters, a progressive might argue. It empowers those who will oppress them. The costs seem too great.

It would be silly to argue that minority rule is without costs. But the model currently favored by progressives—a strong nationalist system—has costs as well, as the discussion above makes clear. Eliminating opportunities for local governance to protect racial minorities and dissenters also means eliminating the very sites where they are empowered to rule.

More importantly, what we have today is not your father’s federalism. The federalism that haunts our history looks quite different from the form of local power that prevails now. Federalism of old involved states’ rights, a trump card to protect instances of local oppression. Today’s federalism involves a muscular national government that makes policy in virtually every area that was once relegated to state and local governments. The states’ rights trump card has all but disappeared, which means that the national government can protect racial minorities and dissenters when it needs to while allowing local forms of power to flourish.

It would be foolish to insist that every state and local policy must be progressive for progressives to favor federalism. Decentralization will produce policies that progressives adore, and it will produce policies that they loathe. The same, of course, is true of a national system. Progressives have to make their case to the American people, just like everyone else. The point here is that progressives can fight for their causes in our current system, and they can win. Gone are the days of policy-making enclaves shielded from national power. If progressives are simply looking for guaranteed wins, it’s not decentralization that they should worry about—it’s democracy.

Moreover, progressives tend to overstate the problem of parochialism. When progressives talk about democracy, they celebrate the idiosyncratic dissenter, the nobility of resistance, the glory of getting things wrong, and the wild patchwork of views that make up the polity. When progressives turn to governance, however, they crave administrative efficiency, worry about local incompetence, and have a strong impulse to quash local rebellion. We join de Tocqueville in celebrating the eccentric charms of local democracy, but our tastes in bureaucracy run with Weber: impersonal, rationalized, and hierarchical. It should come as no surprise that de Tocqueville’s democracy fails to produce Weber’s bureaucracy. But rather than spending all of our time worrying about that failure, maybe we should acknowledge the fact that decentralization offers so many benefits that progressive nationalists can value.

Progressive nationalists have long worried that decentralized power needlessly fractures the national, exercising a centrifugal force on the polity. But ours is a system where local power can turn outsiders into insiders, integrating them into a political system and enabling them to protect themselves. It is one where the energy of outliers can serve as a catalyst for the center, allowing them to tee up issues for national debate. It is, in short, a form of federalism that progressive nationalists can celebrate.

Progressives were right to worry about federalism in the past. They are wrong to worry about it now. Minority rule and minority rights are tools for achieving the same ends. Both can help further equality and nurture dissent. Progressives have long endorsed the nationalist case for national power. Now is the time to acknowledge the nationalist case for local power.

The odd thing about the progressive case for local power is that it is utterly familiar to those on the ground. The virtues of decentralization may not play an important role in progressive thought, but these lessons haven’t eluded those involved in progressive politics. Progressives have long leveraged local population concentrations into political power. Indeed, much of the most important work on progressive issues started at the local level. Take climate change: From green building codes to cap-and-trade, the bulk of the work on the issue is being accomplished outside of Washington. And even national standards on fuel efficiency and the like have emerged largely as a result of states like California using their policy-making power to prod national regulators to move forward.

It’s time that progressive thought caught up with these realities. Even those key areas where progressives have long looked to national power—promoting equality and protecting dissent—reveal that minority rule, and not just minority rights, should be understood as a key part of any healthy democracy.


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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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