We can’t assess how America presently does federalism without some shared agreement about what its practice should look like, and this task falls to Stanford Law professor and former 10th Circuit Court of Appeals judge Michael W. McConnell. He explains in the volume’s first paper that federalism “is a system for allocation of democratic decision-making power.” McConnell references both economic theory and the Constitution’s framers to argue that this allocation should correspond to how well the effect of a governmental operation can be confined within a state. One state’s ban on sports betting, he writes, doesn’t affect whether citizens elsewhere can bet on sports, so states should be free to regulate sports betting as they see fit. However, a state’s investment in national defense allows other states’ citizens to enjoy more safety without incurring the cost. The framers therefore empowered the national government to act where collective action might falter: not just national defense but interstate commerce, minting currency, establishing weights and measures, and so on. McConnell notes three objectives of this power-allocation design, articulated in Madison’s Federalist #10: to serve the public good, protect liberty, and “preserve the spirit and form of popular government.”
McConnell implies that the framers embraced decentralization to achieve these ends, but they believed the American confederacy’s decentralization was the cause of its failings, not a solution. They therefore chose greater consolidation of authority. Madison was forceful about this purpose in Federalist #45, insisting that insofar as state autonomy threatened the public good, it must be diminished. Much of The Federalist is consequently a rhetorical defense of partial national consolidation against its detractors, and much of this defense seeks to reassure them that the legally constrained national government couldn’t possibly dominate the states and their citizens.
We all know how that prediction turned out. As volume contributor John F. Cogan shows, two-thirds of federal spending in 2019 “was on activities that were originally considered to be the responsibility of state and local governments or private-sector entities.” Fellow contributor David M. Kennedy writes that “the long-term history of federalism is a tale of federal aggrandizement”—measured not just by how deeply federal agencies have encroached on states and localities, but by how the grants they distribute have “amplified the overall presence of governments (plural) in many sectors of American life. Indeed, federal power has often been the factor driving the scope and scale of state governments.” Even where states exercise apparent authority, in other words, their actions are profoundly influenced by how much federal money is in it for them. A metastasizing Federal Register reminds us that he who pays the piper calls the tune.