The New Federalism

Suddenly, the relationship between the federal government and the states seems to be at the center of U.S. politics. Defying Donald Trump’s claims of “total authority,” states throughout the country have been banding together to plot their own return to normalcy in the COVID-19 era. This follows weeks of growing rancor between some governors and the president over the alleged failure of the federal government to funnel crucial medical supplies and testing to the places where they are needed. And last month, another institution of the federal government, the U.S. Supreme Court, blocked an attempt by the governor of Wisconsin to extend the state’s mail-in-ballot deadline in order to prevent further spread of the contagion at the polls.

In fact, this relationship has been at the center of things all along. But in a crisis defined by erratic leadership in Washington, D.C., the states, as much out of desperation as by design, find themselves asserting long-dormant powers. A new era of federalism is unfolding before our eyes.

Prior to the Civil War, the fiercest defenders of the states were white southerners who feared that the federal government, at the behest of northern states, would impinge on and even destroy the South’s slave system, much of it underpinned by the laws of various southern states. The Union’s triumph in the Civil War was supposed to end this era of states’ rights. It did, up to a point. America would never again confront a serious threat of secession by constituent states. But by the 1890s, southern state legislatures, with the sanction of the Supreme Court, had imposed segregation and subordination on their states’ black citizens. States’ rights now took the form of Jim Crow, America’s apartheid.

This governing philosophy rebounded in part because it suited the interests of southern white supremacists. But a belief in states’ rights was also an expression of a long-standing conviction, common among northerners and southerners alike, that the Constitution endowed the states with an authority broader than that of the federal government. The courts called this authority the “police power,” by which they meant something far beyond the law-enforcement oversight that each state had. The police power conferred on states the right and the duty to look after the economic, social, and moral welfare of their citizens. Protecting citizens from epidemics ranked high on states’ to-do list; so did improving the moral fiber of the population, regulating corporate behavior in the public interest, and keeping suspect groups—single women living outside patriarchal arrangements, minorities, and “vagrants”—in line.