The coronavirus outbreak in the United States has served as a good reminder to Americans of the virtues of federalism. Not only are the president and his top staff working on the crisis at a national level, but governors, county commissioners, and mayors are focusing on the manifestation of this disease on a state and local level. This enables the government as a whole to have an ideal response to the pandemic — tailored to local conditions without sacrificing national coherence.
The concept of federalism, or the coexistence of federal and state governments in their own spheres of power, is premised on the constitutional limits of federal power. Article I, Section 8 of the Constitution does not grant Congress unlimited power. Rather, its authority is enumerated, which by implication left the state governments with the remaining power of government. When the Bill of Rights was passed by Congress in 1789, the legislature made that implication explicit in the 10th Amendment, which reserves all power not delegated to the federal government to the states or the people at large.
Like many aspects of our Constitution, the concept of federalism was left vague by the Founding Fathers, to be worked out through the everyday practice of politics. As it evolved over the first few decades of American life, federalism emphasized the federal government’s role in foreign policy, as well as creating a national economic marketplace through internal improvements, public-private financial institutions such as the Bank of the United States, and tariffs for industry. The rapid pace of industrialization and integration in the latter part of the 19th century necessarily expanded the federal government’s power. The Constitution grants Congress the authority to regulate interstate commerce, which increasingly amounted to more and more of American economic activity. In the 20th century, the Supreme Court took a very broad view of what counted as interstate commerce, legitimizing federal authority in wide swaths of economic activity. Starting with the New Deal, the federal government began intervening in state matters not by forcing activity but by offering cash assistance, with strings attached. The Great Society of the 1960s followed this approach, further increasing the scope of the federal government.
Nevertheless, the states (which incidentally are sovereign over localities) retain a great deal of control over many matters of day-to-day life. Education, criminal justice, transportation, the environment, licensing and regulation, social welfare, and public health all fall under their jurisdiction to a large degree, although they are rarely able to make dictates without at least the indirect influence of the federal government these days.
This is why the governors and mayors are so important in determining how each of us lives through the coronavirus pandemic. The president has the power to shut down foreign travel, and even travel between the states. He can also facilitate the procurement of medical supplies to places that need it most. But when it comes to closing your local dry cleaner or limiting the number of people who can go out to the park this afternoon, those are authorities reserved for the state governments, which in turn parcel them out to localities. As the U.S. moves forward through the phases of this coronavirus outbreak, federalism will probably result in some communities enjoying fewer restrictions on daily life than others, as state and local officials make their own determinations about what is best for each place in the country.
Federalism is a historical accident. It’s an artifact of the way the British crown chose to organize the American colonies during the 17th and early 18th centuries. By the end of the French and Indian War in 1765, the colonies were hardly united in any sense of the word. They were separated by geography, religion, ethnicity, culture, and even language. Between that point and 1776, King George III and his ministers managed to antagonize all 13 of the colonies, which joined together mainly because they had no other choice. The revolution helped to create a national American identity, but there was still substantial resistance to a comprehensive “union” by the time of the Constitutional Convention in Philadelphia in 1787. The delegates to that meeting were called to assemble mainly because government and even civil society were breaking down by that point, and everybody realized that something drastic had to be done to handle the crisis. And even then, Rhode Island did not bother to send any delegates, so dedicated was it to its own sovereignty.
Some delegates, such as James Madison and Alexander Hamilton, wanted to curtail the power of the states severely. How could two sovereignties govern a single place at the same time without conflict or at least inefficiency? They did not think it possible, which is why they thought the Articles of Confederation (the agreement that preceded the Constitution) was such a failure — it invested too little power in the national government, basically rendering it subservient to the states. At the Constitutional Convention, they both proposed essentially reversing the situation and making the states servants of the national government.
But there simply was not the political will to do that. In fact, nothing better demonstrates the “stickiness” of state sovereignty better than the fact that at the convention itself, each state received exactly one vote. So, Madison and his nationalist allies succeeded in giving the federal government vast new powers, such as the authority to tax and regulate commerce, but they could not convince the other members to give the federal government a veto over state laws, which probably would have killed federalism for good. They also failed to create a Senate apportioned on population. The small states demanded equal representation in the upper chamber of Congress, thereby creating a structural support in the government itself for federalism.
As a matter of pure political theory, this system does not make a lot of sense. It is in fact a compromise between competing visions of how a republic is supposed to operate: federalists such as Madison and Hamilton who thought it had to be strongly national and others, such as Patrick Henry and Melancton Smith, who thought that states were the best repositories of power. And it was a compromise that was forged in light of the fact that the states were already in existence by 1787, had been for some time, and could not simply be destroyed.
Today, many progressives are wont to criticize federalism for being irrational. They seek to expand national authority because it makes sense to create a uniform government policy for all citizens. But conservatives, at least those in the mold of the great philosopher Edmund Burke, have an appreciation for the importance of the evolution of political institutions. They need not all be designed out of whole cloth to be defensible. Similarly, federalism as a political organization was never sketched out in a philosophical treatise; it developed in dribs and drabs from the settlement of the Jamestown colony in 1607 until the present day. But that is not a weakness. It is, in fact, a strength, for it has evolved, bit by bit, to meet various challenges and crises as they pop up.
And that is exactly what we are seeing today. Federalism has been one of the strengths of the government’s response to the coronavirus, not one of its weaknesses. President Trump and his advisers are setting broad national policy, particularly with respect to international travel, the approval of treatments, and the transportation of needed medical supplies and equipment from one end of the country to the other. Meanwhile, governors and local leaders are tailoring life to fit the circumstances in each community. Each is attending to the tasks most suited to them. For instance, states are dealing with school closures in different ways. Some have closed schools through the end of the year, while others have held off in the hopes of reopening them. That makes sense in the context of this pandemic, which affects some locales more than others. Federalism gives us the best of both worlds: a coherent policy for the entire country that is simultaneously flexible for local exigencies.
Federalism as we know it today may not have been the “idea” of any single person, but that does not change the fact that it is a very good thing, especially in this moment of crisis.
Jay Cost is a visiting scholar at the American Enterprise Institute and Grove City College.
