In the oral argument on the Bladensburg Cross case last week, Justice Kavanaugh suggested a resolution to the controversy based on notions of federalism–that local municipalities or states could and should make decisions about issues like state-sponsored religious symbols on their own, without a uniform, general rule imposed by the Supreme Court. Certainly this was the approach to many controversies that currently go under the Establishment Clause banner before 1947. And, indeed, those who oppose such resolutions often argue that they have the effect of locking in place the status quo and are unfair and oppressive to minorities. That is, they have a conservative orientation–in the etymological sense at least. But recent events have shown that federalist politics may be progressive, too. They may be used to resist national policies that are more conservative than particular local or state governments might like, as much of the blue-state resistance to some of President Trump’s policies suggests. So there is reason to wonder whether federalism has any necessary political valence, or whether instead its valences depend upon the regnant national politics.
At any rate, this new book, Conservative Innovators: How States are Challenging Federal Power (University of Chicago Press), by Ben Merriman, adopts a historical view of these matters and recounts periods in which federalism was used by states to pursue policies that were more conservative than those desired at the national level (or, at least, at the presidential level).
“As American politics has become increasingly polarized, gridlock at the federal level has led to a greater reliance on state governments to get things done. But this arrangement depends a great deal on state cooperation, and not all state officials have chosen to cooperate. Some have opted for conflict with the federal government.
Conservative Innovators traces the activity of far-right conservatives in Kansas who have in the past decade used the powers of state-level offices to fight federal regulation on a range of topics from gun control to voting processes to Medicaid. Telling their story, Ben Merriman then expands the scope of the book to look at the tactics used by conservative state governments across the country to resist federal regulations, including coordinated lawsuits by state attorneys general, refusals to accept federal funds and spending mandates, and the creation of programs designed to restrict voting rights. Through this combination of state-initiated lawsuits and new administrative practices, these state officials weakened or halted major parts of the Obama Administration’s healthcare, environmental protection, and immigration agendas and eroded federal voting rights protections. Conservative Innovators argues that American federalism is entering a new, conflict-ridden era that will make state governments more important in American life than they have been at any time in the past century.”