How does federalism structure our nation’s politics?

0:04This takes us back to the beginning in the way the U.S. Constitution sets up these dual sovereigns. It says, the national sovereign is supreme. When it passes a law, issues an order, everyone's got to follow it, but it sets up a lot of blocking mechanisms before a national law can be passed. It's got to get through both houses of Congress, the president it's got to be presented to the President, he or she has to sign it. The National Court has to uphold it. Those are a lot of blocking mechanisms, and we've seen in the last 50 and 60 years, lots of times where Congress has not been able to act. Again, back to patience, it can be very frustrating when we think it's time for the national government, particularly Congress to regulate an area.

0:53I think we're all watching immigration issues, and that's a fraught area. I'd be wonderful to have a national solution that we could all agree upon. But so far it just hasn't happened and it's deeply frustrating to lots of people. But that just illustrates that the national government in the way the Constitution is set up, does not make it easy to nationalize something. In fact, if you want to amend the National Constitution, it's even harder.

1:18You have to get three quarters of the states to participate. Obviously, each state, no matter its population, has two senators that alters things quite a bit in the Senate. I think that's quite Madisonian. I think that makes it difficult to reflexively and patiently nationalize a solution. Now, I'm not going to say that has always worked to the good. There have been plenty of times, I for one, would have been thrilled to make it easier to have a national law, make it easier to amend the National Constitution. But it does take you back to this assumption at the founding that we were going to leave most policy making authority in the states. Herbert Wechsler in 1954, so 54 is a big year. That's Brown, says that federalism was the price and means of union. I think price and means are really important words.

2:12The means point is he's saying, under the Articles of Confederation, we had 13 countries. The Articles of Confederation were a treaty among 13 countries, the National government had essentially no power. We needed a national government with enough power to say defend its shores, coordinate some things, and the only way you were going to do that was by still honoring the authority of the states.

2:36They were no longer going to be countries but they would have many features of sovereignty, and that is the whole complication and it led to some very negative stories. See Jim Crow happily ended with Brown v. Board of Education, but I think it's also had positive stories. States leading the way and getting rid of disability discrimination, see the eugenics movement, states filling gaps when it comes to school funding inequities.

3:07Back to the pandemic. States trying all experiments here. Little did Brandeis know that the word laboratory would not be a metaphor one day. It's a shocking thing to say, but what else can you say other than what Florida did was different from New York, which was different from California, which was different from Ohio, and after a year, you could start to assess, what was the best way to run a public school in the middle of a pandemic or what were the range of acceptable choices? I think Wechsler was right. It is both the price. It's a cost because it means you can't easily nationalize things you'd like to nationalize right away. Some that should have been nationalized much more quickly, say, ending segregation. But it's also spared us,

3:55and you can nationalize too quickly and either create perilous polarization or nationalize a terrible idea, see eugenics. Thank God, Congress in 1924 decided not to pass a national eugenics law. In 1924, Congress is debating whether to nationalize involuntary sterilizations across the whole country, and they didn't. But the point is, there are plenty of stories that show frustration with this price and means of union and plenty of stories that make one say hallelujah with this price and means of union.