In this podcast, we discuss the Supreme Court’s decision to grant cert in June Medical Services v. Gee, a constitutional challenge to a Louisiana law regulating abortion. We explore what the decision to hear the case suggests about the Court’s changing dynamics and ask whether the standing issue the case presents offers the Court’s conservatives, especially Chief Justice Roberts, a way to cut back on the right to abortion without actually overruling Roe and Casey. Listen in!
Federalism, the enduring political and legal arrangement that government in the United States is an affair divided between the states and the nation–and, indeed, the broader idea that decentralization, diffusion of power, and local experimentation are positive political goods–sometimes seems to come and go into and out of favor depending upon the political trade-winds. It is invoked as an instrument of resistance by states when the national policy is for some substantive reason thought objectionable; it is decried as an instrument of obstruction when the national policy is for some substantive reason thought attractive. These pragmatic considerations in favor of and against federalism often rear their heads in the law and religion context (think, e.g., sanctuary cities now, decisions about religious displays and legislative prayer, and so many others, at other times). Of course there are some committed theoretical types that champion federalism systematically, one reason for which is to lower the national blood pressure on very contentious issues in the face of increasing political polarization.
But some people seem to want to go the other way for the sake of various substantive objectives, and it is not too surprising to see “equality” as one of these. This new book against federalism is The Divided States of America: Why Federalism Doesn’t Work (Princeton University Press), by Donald F. Kettl.
“Federalism was James Madison’s great invention. An innovative system of power sharing that balanced national and state interests, federalism was the pragmatic compromise that brought the colonies together to form the United States. Yet, even beyond the question of slavery, inequality was built into the system because federalism by its very nature meant that many aspects of an American’s life depended on where they lived. Over time, these inequalities have created vast divisions between the states and made federalism fundamentally unstable. In The Divided States of America, Donald Kettl chronicles the history of a political system that once united the nation—and now threatens to break it apart.
Exploring the full sweep of federalism from the founding to today, Kettl focuses on pivotal moments when power has shifted between state and national governments—from the violent rebalancing of the Civil War, when the nation almost split in two, to the era of civil rights a century later, when there was apparent agreement that inequality was a threat to liberty and the federal government should set policies for states to enact. Despite this consensus, inequality between states has only deepened since that moment. From health care and infrastructure to education and the environment, the quality of public services is ever more uneven. Having revealed the shortcomings of Madison’s marvel, Kettl points to possible solutions in the writings of another founder: Alexander Hamilton.
Making an urgent case for reforming federalism, The Divided States of America shows why we must—and how we can—address the crisis of American inequality.”