While reading the transcript of the oral arguments before the Supreme Court in the Obamacare case I realized that I misunderstood something fundamental about the collective American psyche. It has to do with the principle of federalism.
My formal education—of which, as a lawyer, I have had my share—has led me to believe that federalism is a dying, if not dead, concept in America. Looking back at how the concept of federalism has influenced American history, I think it is easy to understand where that belief would have come from.
It is indisputable that the framers believed that federalism was one of the fundamental concepts that provided the foundation for the Constitution. That is why the Constitution allocated some powers to the federal government and reserved others for the states.
But over time the American people solved problems that gripped the country by transferring powers from the states to the federal government. The most obvious example is slavery. It became apparent that there was no way to abolish slavery while upholding the original understanding of American federalism. The abolitionists wanted to increase federal power enough to end slavery.
After winning the war, the unionists fundamentally altered the concept of American federalism. The 13th, 14th and 15th amendments significantly increased federal power. Also, fundamental conceptions of what the Constitution meant were shattered. As just one example, the Second Amendment guarantees the states the right to operate their own militias and thus guarantees the right of the people to keep and bear arms. At least arguably, the Second Amendment was designed as a check on federal power. If the federal government attempted to usurp too much power, the states, through their militias, could at least threaten to reign in the federal government by force. The southern states largely attempted to do that in 1861. When the rebellion failed, the conception that the Second Amendment was a bona fide check on federal power was shattered.
Another theme running through American history is economic growth. The United States went from a nearly unnoticeable player on the world stage to the most powerful nation on earth in less than two centuries. Originally, the vast majority of laws regulating the economy were state laws. But as the economy grew, it became apparent that state laws alone could not effectively regulate large corporations that operated on a national or international stage. So, Teddy Roosevelt broke up monopolies. FDR helped establish nationally recognized employee rights. To accomplish these goals, it was necessary to expand federal power.
Then came the Civil Rights Movement. It was apparent that even after the Civil War states could not be trusted to provide equal rights to all people. Again, the federal government solved the problem but needed to expand its own power to do so. The Supreme Court put federal district courts directly in charge of consequential local education decisions when it passed Brown v. Board of Education. The Civil Rights Act largely eliminated states’ abilities to overtly discriminate against minorities.
Looking at American history from this perspective, it seems easy to conclude that state power has tended to be an evil that must be overcome in order for the United States to make progress. State power slowed the abolition of slavery; it slowed national reforms that allowed our economy to develop a strong middle class; it continues to slow the reduction of racism.
So, prior to reading the Obamacare oral arguments, I was under the impression that the principle of federalism was an outdated concept that the vast majority of Americans would want to see become a relic of the past. But one transcript and a series of conversations later, and I have found that that impression was unequivocally wrong.
A significant number, if not a majority of Americans continue to believe in federalism. It is not a concept that is invoked by conservatives just for political purposes. There is significant genuine support behind limiting federal power merely for the sake of limiting federal power.
The best rationale is this: a person might like living in the United States, but might dislike the idea of an individual mandate to buy health insurance. If only Massachusetts has an individual mandate, this person can just live somewhere else.
In a way, federalism promotes minority rights. The person who dislikes the individual mandate would be in the minority in Massachusetts. If that person gets tired of being in the minority, she can move to a more conservative state.
If the federal government controls everything, however, that protection of minority rights is basically destroyed. The person could still move to Canada, but the idea of federalism is that the United States should have an internal way of “voting with your feet.”
This is all to say that Obamacare is not just the political football that it is sometimes made out to be. Many liberals believe that the vast majority of Americans would support the bill if they understood what was in it. But that is not necessarily the case because of the continued widespread belief in the principle of federalism.
The problem for liberals who subscribe to the view that federalism is outdated is that the principle is firmly grounded in the Constitution. Yes, it has significantly eroded since the 18th Century, but it is still there, and the conservative Supreme Court justices have not forgotten about it.
If the American public were to collectively agree that federalism is outdated, the principle would probably wither away and cease to be a fundamental American concept. But that is not happening right now. Conservatives are rallying around federalism, and since it is indisputable that federalism is enshrined in the Constitution, they have a reasonable argument.