A New Progressive Federalism

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

By Heather K. Gerken

Tagged Civil RightsFederalism

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.

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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Heather K. Gerken is an expert in constitutional and election law, and the J. Skelly Wright Professor of Law at Yale Law School.

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