Symposium | The Democracy Constitution

Dissent: What Happened to the States?

By Ronald J. Krotoszynski, Jr.

Tagged ConstitutionDemocracy Constitution

Since before the Revolutionary War, the United States has been a federal state, and the national government, at least notionally, one of limited rather than plenary powers. This new constitution completely abolishes federalism as it has been known and practiced since time immemorial. There are good reasons—progressive reasons—for permitting independent policy experimentation on important social policy questions. Salient examples include formal legal recognition of non-traditional marriage (same-sex couples to “throuples”), drug policy (Oregon’s recent decriminalization of hard drugs), death with dignity for mentally competent, terminally ill adults (currently legal in ten states), and the design of the K-12 public school curricula (all 50 states).

This draft, if adopted, would permit the federal government to throttle state efforts to serve as “laboratories of democracy” by adopting new and innovative regulatory policies that challenge long and deeply held notions of how things must be.

For the record, I will cheerfully acknowledge that this constitution incorporates many important —and laudable—structural reforms. Among these important and salutary proposals are abolishing the Electoral College in favor of direct popular election of the President; ensuring that the House of Representatives is more fully representative of “We the People”; and renormalizing the Senate to more closely resemble the upper chambers in other industrial democracies (specifically, giving it the power to delay, but not block, legislation enacted by the House).

However, despite these important virtues, the draft creates a national government with unlimited power and abolishes any independent constitutional authority for the state governments. It lacks any meaningful checks on the scope of federal power to establish uniform national rules over anything and everything (including even the very existence of the current states as governing entities).

Worse still, the states, as states, will play absolutely no role whatsoever in the adoption or the amendment of this constitution. Nor will the people within the existing states; all plebiscites, including the critical adoption vote, rely on national popular votes, not popular votes within any particular state or group of states. Any residual doubts about the federal government’s unlimited powers can be resolved in favor of federal authority either by ad hoc or permanent constitutional amendments, adopted by majority votes in Congress and in a national plebiscite, that ratify the contested assertion of federal authority.

Federalism is not anti-progressive or antithetical to democratic self-government. Canada, Germany, and South Africa are all federal systems and hold free and fair elections on a regular basis. South Africa’s constitution contains positive rights. So too, the Basic Law in Germany creates not only negative obligations on the state, but also positive duties to secure fundamental rights within society more generally. Thus, federalism is fully consistent with progressive values and human rights priorities.

To be sure, federalism in the United States came into bad odor during the civil rights era, but more recent policy experimentation within the states often has enhanced, not restricted, liberty, autonomy, and human dignity. These recent state-law reforms include recognizing non-traditional families, reforming drug policy, embracing efforts to preserve and safeguard the environment and combat climate change, and expanding voting rights (for example, universal mail-in voting has been a regular feature of elections in several states for decades), in addition to checking the worst excesses of the Trump Administration through public interest litigation in the federal courts. Some of the most important social justice movements in this country—including the abolition of slavery, formal recognition of the legal and social equality of women, and respect for the dignity and full personhood of members of the LGBTQ community—all originated first within a particular state or group of states before gaining national support.

The limits on judicial review of federal statutes (a supermajority 3/4 vote is required to merely invalidate on a provisional basis a federal statute) and the ability of Congress to override even these supermajority Supreme Court decisions or to amend the Constitution with respect to the scope of federal power by majority vote seriously compound the error of not preserving any meaningful semblance of a federal, rather than unitary, state.

In sum, the draft fails to provide any constitutional brakes on a federal government that wishes to impose its will on a state whose population prefers to dance to the beat of a different drummer—whether the question involves the legalization of recreational use of marijuana, death with dignity, or the legal protection of transgender persons. I believe that this defect constitutes a fatal design flaw and will prove to be a serious distraction that steals the spotlight from the other, quite prudent proposals for a serious renovation of our national governing institutions.

As Justice Louis Brandeis famously observed almost 100 years ago, “[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Not so under this constitution, which creates an omnipotent federal government that could, if it wished, abolish the existing states entirely and replace them with Hunger Games-style administrative regions.

Federalism permits people with very different values and cultural practices to peacefully co-exist within a larger national (political) whole. Accordingly, a workable constitution for the United States must respect the principles of federalism. Unfortunately, this draft fails this important test.

Accordingly, I respectfully dissent.

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Ronald J. Krotoszynski, Jr. is the John S. Stone Chair, Director of Faculty Research, and Professor of Law at the University of Alabama School of Law.

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