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In the wake of last year’s San Bernardino massacre, President Barack Obama begged the states to do something about gun control. The federal government, he conceded, could do nothing. Involving the states in governance should be a normal part of a federal system of the sort that the United States possesses, the ability to shift the balance of power between states and central government as circumstances demand, endowing it with unusual flexibility and dynamism. But on gun control, Obama has little flexibility, and faces implacable opposition to the assertion of federal authority.
His recent executive order to expand federal regulation of gun purchases is remarkable for its timidity: it merely closes a loophole exempting online and gun-show purchasers of firearms from background checks, and will do little to slow the galloping gun epidemic in the US. Still, Obama has been pilloried for his alleged abuse of power. Hostility to the exercise of federal authority is manifest not just on the question of guns but in connection to healthcare, climate control, immigration, and improving the nation’s infrastructure. How did the US become something of a failed state?
The men who devised the 1789 US Constitution bequeathed the federal government only those powers specifically enumerated: to raise armies, levy taxes, administer the mail, regulate interstate commerce and the financial system, and control the country’s borders. These were substantial powers, but they were as narrow and limited as they were rigid.
The states, by contrast, had no such restriction imposed on them. In fact, they had a power that the federal government did not possess: to act for the general welfare. This authority ranged from economic matters, such as regulation of manufacturing and industrial relations, to private matters such as governance of marriage, sexuality, religion, and morality. Historically, states also possessed deeper wells of coercive power than did the central government, which they did not hesitate to deploy, passing innumerable laws to institutionalise slavery and segregation, to insert religion into public schools, and to outlaw divorce, drink, homosexuality, birth control, abortion, and commerce on the Sabbath.
Given such an expanse of power, it is no surprise that states were for a long time the most dynamic players in US government. Aspects of government that are today thought of as national began as the initiatives of particular states. Delaware and New Jersey deployed the general incorporation charter as an aid to private business. New York and Wisconsin pioneered welfare and industrial relations policies, and western states led the way in giving women the right to vote.
By the 20th century, a patchwork of state laws was no longer sufficient to support the country’s economic growth or its drive to become a world power. Business and labour wanted uniform conditions across states. Women insisted on voting everywhere, and in national elections. Large numbers of Americans – racial minorities on the one hand, and political, religious and sexual dissenters on the other – chafed under the extraordinary power states wielded over racial and private life. Although political movements to centralise government power gathered force early in the 20th century, it was only after the Second World War that the lobby acquired sufficient force to effect reform.
The resulting shift of power away from the states and toward the federal government was of such magnitude that it ought to have been ratified by constitutional amendment. But this did not happen. Three-quarters of the states – the minimum required to approve a change to the Constitution – were never going to agree to limit their power in that way. In the absence of such an amendment, supporters of the central state had to find another way to legitimate its expansion. This they did by using powers clearly given to the federal government – to regulate interstate commerce and to tax, for example – to undertake programmes not so clearly authorised. Supreme Court justices became experts at stretching the commerce and taxation clauses to accommodate an expanded role for the federal government and to render an ancient Constitution living and relevant to solving modern-day problems. Their achievements can be seen in the transformative effect of industrial relations law, civil rights legislation, and national healthcare reform on US life.
But the costs have been significant, too. Every expansion of federal power has been fiercely debated and challenged, its authorisation sometimes reversed, its implementation often delayed for years. The jurisprudential legerdemain that Chief Justice John Roberts deployed to uphold the Affordable Care Act in 2012 (rejecting the commerce clause as the basis of its constitutionality, while embracing the taxation clause) satisfied almost no one. The dramatic expansion in access to healthcare that should have been a milestone for the Obama Administration, and for the proponents of expanded federal power, is now regarded as a millstone. Obama has had few legislative achievements in his second term.
As the paralysis of the central government has deepened, the states have become more active, leading the way on numerous issues: the legalisation of marijuana and same-sex marriage; raising the minimum wage; restricting carbon emissions; outlawing Sharia; denying social services to illegal immigrants; curbing access to abortions; and mandating background checks for would-be gun-buyers.
One might imagine that the most successful experiments at the state level would be adopted by the central government. But the US federal system has never made such transfers easy to achieve. Meanwhile, many Americans seem oblivious to the tasks they need their national government to perform. A sound physical infrastructure, for example, is necessary to economic growth: but roads, bridges and tunnels in many parts of the country are in an advanced state of decay. Take the rail tunnels underneath the Hudson River, vital to the economic welfare of millions: one more Sandy-like hurricane could well sweep the existing tunnels away.
Yet, New York and New Jersey have squabbled about who will pay for new ones and Congress, until recently, had refused to step in. A renovation plan (Gateway) is now in place but won’t yield new tunnels for another 15 years. Can the existing tunnels survive into the 2030s? More broadly, can the United States find a cure for the sclerosis that afflicts its ancient governing system?
Liberty and Coercion: The Paradox of American Government from the Founding to the Present (2015) by Gary Gerstle is published via Princeton University Press.