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There will never be a progressive federalism

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Good preemptive strike from Anna Dorman on the idea that states’ rights arguments can be used for progressive ends for any but the most contingent and cynical reasons:

But in recent years, some on the left have begun to wonder if federalism can be salvaged from this racist history. The argument for progressive federalism goes something like this: The division of power need not have an inherent political valence. Instead, it can be a neutral tool, employed towards achieving progressive ends just as easily as conservative ones. Moreover, dividing power has some serious benefits; at the local level, smaller minority groups may have more of a voice in the political process. And though we hate to say the quiet part out loud, deep down, progressives who sing the praises of federalism are often reassuring themselves that no matter how crazy things get in Florida or Texas, New Yorkers will be fine.

These arguments are interesting, even appealing, in the abstract. But we live in the dark, bleak real world, where the costs of abstract hypotheses outlined in law review articles are borne by real people. Even putting aside American federalism’s origins as a handout for chattel slavery, in a large country where minorities are heavily concentrated in a few states and states vary widely in size, population, and wealth, federalism isn’t neutral. Rather, federalism structurally favors the whitest, least religiously diverse, most conservative portions of the country.

Federalism is the bedrock of some of our most anti-democratic national institutions. The Electoral College so dramatically favors small states that Donald Trump won the presidency despite getting almost three million fewer votes. The Senate is even worse; although control is currently split between Republicans and Democrats, the 50 Democratic senators represent more than 41 million more people. That means every individual represented by a Democratic senator is about 40 percent less “represented” than someone in a state with a Republican senator. And, of course, there is the Supreme Court, where fully half of the six members of its conservative supermajority were nominated by a president who lost the popular vote.

Federalism is also the linchpin of cynical conservative ploys to undermine democracy and implement Republican policy priorities. Although conservatives typically praise the freedom to discriminate against vulnerable communities that federalism affords, when federalism ceases to serve those ends, they reliably prioritize enacting their agenda.

Consider the shift from Chief Justice John Roberts’s ode to federalism in Shelby County v. Holder, in which the Court gutted the Voting Rights Act to protect the “equal dignity of the states,” to the complete lack of deference to the states when in Wisconsin Legislature v. Wisconsin Elections Commission, which threw out Wisconsin’s electoral maps in favor of maps more favorable to Republicans. Consider the lightning transition from Justice Antonin Scalia’s argument in Planned Parenthood v. Casey that Roe illegitimately siphoned power from the states to the total absence of federalism interests in Justice Samuel Alito’s leaked draft in Dobbs v. Jackson Women’s Health Organization, all while Republican senators openly ponder a national six-week abortion ban once Roe is overturned. Consider Bush v. Gore, a doctrinally ungrounded Supreme Court intervention that overturned the Florida Supreme Court’s interpretation of Florida state law, stopped the recount of ballots in Florida, and handed the 2000 election to the Republican candidate, George W. Bush.

Nobody has any principled commitment to “federalism” in a case of any major substantive interest, and there’s a reason reactionaries have always found a lot more to gain from selectively deploying it.

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