The ANNALS of the American Academy of Political and Social Science http://ann.sagepub.com/ Puppy Federalism and the Blessings of America Edward L. Rubin The ANNALS of the American Academy of Political and Social Science 2001 574: 37 DOI: 10.1177/000271620157400103 The online version of this article can be found at: http://ann.sagepub.com/content/574/1/37 Published by: http://www.sagepublications.com On behalf of: American Academy of Political and Social Science Additional services and information for The ANNALS of the American Academy of Political and Social Science can be found at: Email Alerts: http://ann.sagepub.com/cgi/alerts Subscriptions: http://ann.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations: http://ann.sagepub.com/content/574/1/37.refs.html Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 Puppy Federalism and the Blessings of America By EDWARD L. RUBIN ABSTRACT: Federalism is a system of governmental organization that grants subunits of a polity definitive rights against the central government. It allows these subunits to maintain different norms, or policies, from those of the central government. Thus it differs from decentralization, which is a strategy that the central government adopts in order to carry out its norms or policies more effectively. Federalism is a useful approach when people in a given area have such basic disagreements that they will not agree to live together in a single polity and be bound by its decisions. The United States is blessed with a sense of national unity that makes federalism unnecessary. This was not the case prior to the Civil War, however, and our continued nostalgia for that period induces us to adopt puppy federalism, which looks like the real thing but isn’t. Legal scholars should not allow themselves to be fooled; however, as current legislation by the Republican Congress indicates, real federalism garners no support in our political system. Edward L. Rubin is professor of law at the University of Pennsylvania Law School. taught at the University of California, Berkeley (Boalt Hall) from 1982 until 1998 before moving to Penn. He teaches administrative law, commercial law, and law and technology (e-commerce and bioethics). He is the author of Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (1998, with M. Feeley), The Payment System: Cases, Materials and Issues (2d ed., 1994, with R. Cooter), and numerous law review articles, as well as the editor of Minimizing Harm: A New Crime Policy for Modern America (1998). He 37 Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 38 nation United States is T HE that enjoys blessings. We a many have vast though we of petroleum (alusing them up), mag- reserves are nificent forests (although we are cut- government that the Framers main- tained, when, of course, we have; that we are not a bureaucratized adminis- trative state, when, of course, we are; and that we are a geographically diverse nation, whose regions exhibit ting them down), spacious skies, amber waves of grain, lots of coal, and interesting differences, when, of the world’s leading supply of molyb- course, we are a highly homogenized, denum. We also have wonderful po- commercial, media-driven culture litical resources: the English tradition of liberty, well-established representative institutions, a willingness to channel political commitments into two major parties, a deep understanding of law, and a long-standing ability to solve civil conflicts through adjudication. Perhaps the most valuable of these political resources, however, is of national unity, our belief constitute a single people and a single polity. One of the reasons why this is such a great blessing is that it allows us to dispense with federalism. A subsidiary blessing is that it allows us to ignore the political questions that underlie federalism, issues that we would like to ignore because they point to the autocratic origins of all governments, and the impossibility of using democratic principles to constitute a polity This fortunate situation did not obtain at the beginning of our history, and we feel a bit guilty about basking in its glow today. Consequently, we have fashioned something for ourselves that can be described as puppy federalism; like puppy love, it looks somewhat authentic but does not reflect the intense desires that give the real thing its inherent meaning. The main purpose of puppy federalism is to convince ourselves that we have not altered the conception of the our sense that we smeared across the width of an entire continent. This article begins by defining federalism and identifying the purposes it serves. It then discusses the great pleasures of being able to dispense with it. The next section briefly describes the way this fortunate situation evolved in the United States, and the final section explains how that situation is combined with puppy federalism in current legislative policy. WHAT IS FEDERALISM? Federalism is a principle of political organization in which a single polity, or nation, has both a central government and separate, geographically defined governments that are subordinate to the central government in certain matters but independent of it in others (Elazar 1984, 2; Leach 1970, 1-10). This partial independence means that there are certain matters in which the separate governments can assert a claim of right against the central government or, alternatively, in which the central government is precluded from issuing commands to these separate governments (Riker 1964, 11; Scheppele 1989). The definition is intentionally broad and may include some approaches that most people Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 39 would not regard as federalism, such as the existence of partially inde- pendent subgovernments some in only parts of the nation. One thing that it does not include, however, is a unitary regime that has decided to decentralize certain governmental functions (Beer 1993, 20-25; Kreimer 1992). Malcolm Feeley and I have discussed this distinction at some length (Feeley and Rubin 1998, 171-203; Rubin and Feeley 1994). Decentralization, or devolution, to the au courant term, is a decision the central government authoby its rizing subordinates, whether geouse graphically or functionally defined, to exercise authority in certain areas. It differs from federalism in that the subunits that have been authorized to act do not possess any claim of right against the central government. That government has given them their authority by some established political or legal mechanism and can take it away by the same means. Decentralization is a management decision that is intended to implement the policies selected by the central government as effectively as possible (Kochen and Deutsch 1980; Morris 1968). If the government decides to maximize rutabaga production, for example, either it can devise a uniform agricultural policy, or it can assign the task of developing agricultural policy to regional administrators, on the theory that these administrators are better able to account for particular conditions in their area or that the local farmers trust them more. Whatever the reason, however, and whatever the level of decentralization, the goal remains the one that the central government has established: to produce more rutabaga. In a truly federal regime, the subunits are able not only to select their own strategies in the matters allocated to them, but to define their own goals; they possess the policymaking, rutabagachoosing power of an independent government. The distinction between federalism and decentralization is worth maintaining because it is necessary for coherent discussion of governmental organization. With the possible exception of some postage-stamp states such as Monaco, San Marino, and Nauru, every nation is decentralized to some extent; they all have territorial subunits exercising some degree of governmental authority. It is virtually impossible to run a government without some reliance on this mechanism. Thus, if we use the term &dquo;federalism&dquo; to refer to decentralization, every nation is federal, and we will need some other term to distinguish nations such as Belgium or Canada, where the subunits exercise claims of right against the central government (Fitzmaurice 1983; Mackey 1999), from nations such as Japan or France, where they do not. Why would a nation opt for federalism as a mode of internal organization ? Clearly, it would not do so to implement any substantive policy, such as maximizing the production of rutabaga or providing people with greater input into government decisions. For example, if national authorities felt that a regional or local government would be more effective than the central government in implementing a policy of Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 40 increasing public participation, they discriminated against in the larger would opt for extensive decentraliza- unit; that resources within the geotion of governmental functions. They graphic region they inhabit will not would not opt for federalism because be used for their benefit; that policies federalism represents a relinquish- will be imposed on them that they ment of control over the subunits and find intolerable; or simply that they thus risks the frustration of the pol- want to retain their own identity icy that the nation, as a whole, wants (Dikshit 1975; Duchacek 1970; to achieve. Under federalism, some of Hannum 1990). Federalism is a soluthe subunits might use their newly tion to this problem, a compromise acquired autonomy to allow the between unity and independence. Decentralization is not sufficient greater popular involvement that their smaller size, by hypothesis, in a situation where one or several facilitates, but other subunits might groups are unwilling to submit to establish autocratic regimes or dele- central control. The compromise that gate their authority to the Catholic these groups want is federalism; they Church or generate their policy deci- want the autonomy of their subunit’s sions with a computer program. The government to be protected as a central government, having relin- right, not merely recognized as a quished its right to control these sub- desirable policy (Friedrich 1968, units, would not be able to reverse 188-227). By virtue of this recognisuch nonparticipatory policies to ful- tion, the autonomy they have secured is placed outside the realm of ordifill its original goal. The reason nations opt for federal- nary politics. The king cannot elimiism is that it is an alternative to dis- nate it by an ordinary royal order; the solution, civil war, or other manifes- voters, or their representatives, cantations of a basic unwillingness of the not do so by a simple majority. In our people in some geographic area to system, this means that the courts, live under the central government acting in response to a claim of right, (Buchanan 1991; Sunstein 1991). will invalidate normal legislation Conversely, the reason groups of that trenches on the agreed-upon nations or other polities that want to autonomy of the subunits (Choper combine opt to create a federal system, as opposed to a unified one, is that the people in the separate polities are unwilling to submit to unified, central control (Bartkus 1999). In either case, the motivation is a basic lack of national unity, an unwillingness of some groups to submit themselves to centralized control, to regard themselves as members of a single polity that must, for better or worse, reach collective decisions. They may feel that they will be 1980). That autonomy can be altered only by a constitutional amendment. It is apparent that the issue of federalism is closely related to the question of political identity on two levels. First, the question for each citizen is whether she regards herself primarily as a member of the nation or as a member of the subunit to which she belongs. Second, the question for an observer is whether the subunit or the nation as a whole will be regarded as the actor in a given Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 41 situation. Most political theories refer to collective entities as actors; for institutional theorists, these entities are emergent institutions, with inherent modes of action; for positive political theory, they are rational beings whose behavior can be modeled ; for methodological individual- ists, like microeconomists, they convenient heuristics; for general will theorists, they are real beings. are But who is the collective actor? In a centralized system, it is clearly the nation; we can say that the government of France, or even France, has decided on a certain policy and wants to implement it by using a strategy of decentralization. In a federal regime, however, the central government and the quasi- autonomous subunit both possess a political identity When we speak of a policy choice, we must decide in advance whether that anthropomor- phized behavior represents the actions of the central government or the government of a quasi-autonomous subunit. In addition to speaking of the national interest, and the interests of the citizens as individuals, we must factor in the interest of the subunits as political actors on their own. THE BLESSINGS OF NATIONAL UNITY From the national perspective, a of unity among its citizens, a willingness to act as part of a single polity, is a political resource of enormous value, more valuable than sense petroleum, molybdenum, or rutabaga. It means that sectional disagreements or rivalries will be resolved within the context of the political process and that a decision, having been reached, will be obeyed. Other disagreements will, of nation’s remain; there may be consocial classes, ethnic between flicts course, religious groups, or purely ideological alliances, and these congroups, flicts may lead to violence. But the disagreements between groups of people who live in different geographic regions of the nation will not rise to this intensity; people will value their membership in the nation over their sectionally specific views and will compromise those views, or even abandon them, in conflictual situations. Not only does a sense of national unity remove one major source of political conflict, but it removes the most dangerous source of such conflict. While it is possible for two contending groups that are geographically intermixed to rip a nation and themselves apart, as has occurred in Lebanon, Rwanda, and (at a regional level) Northern Ireland, most intense conflicts tend to be sectional, as Kosovo, Chechnya, NagornoKarabakh (Armenia-Azerbaijan), Kurdistan, Eritrea, the Ogaden (Ethiopa-Somalia), Western Sahara, Sudan, Kurdistan, Sri Lanka, and East Timor attest in recent history alone (Buchanan 1991; Cassese 1995). In part, this may be because a geographically defined group lacks the cross-cutting ties with others that racially or religiously defined groups often possess (Hannum 1990). In part, it may be that secession is a viable option only for geographically defined groups and that this extreme solution is an inducement to political Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 extremism 42 (Buchanan 1991; Dikshit 1975). Whatever the reason, a nation is not only fortunate-it is blessed-if it does not have any such groups, if the people in every region feel a greater loyalty to the nation as a whole than they do to their particular region. In a democracy, national unity, and the resulting lack of sectional divisions, confers a further, if somewhat more abstract advantage. It conceals from the nation’s citizens, and perhaps even from its political theorists, the awkward fact that democratic mechanisms cannot be used to constitute the nation. Creating a nation requires some form of autocracy. The reason is that the defining feature of democracy, in either its direct or representative varieties, is that major decisions are reached by the people themselves or by their elected representatives (Birch 1993, 45-68; Held 1996, 70120). In practical terms, this means that the decisions are reached by having the people vote, either for the policy itself or for the representatives who in turn select the policy. Before a vote is taken, however, someone must decide who is eligible to vote and what the rules for conducting that vote will be. That decision obviously cannot be determined by a vote; it requires an autocrat of some sort, an individual or an elite, who can establish the initial rules. Thus the principle of democracy, although it may be a perfectly good way to run the ordinary business of government, cannot stand on its own. If we start, either in reality or as with people condition, established by purely democratic means. Assume, for example, that there three contiguous administrative units of a colonial power in a given are area, a large one and two smaller All of them rebel and win their freedom. For simplicity, assume as well that all the inhabitants of these units agree that the only viable alternatives are that the separate units form independent nations or that they aggregate into a single nation, and that they further agree on the kinds of people who are entitled to cast votes on political matters and that all votes should be decided by a simple majority The question then arises whether these separate units should form a single centralized nation, compromise by creating a federalist structure where the preexisting units retain autonomy in certain areas, or become independent of one another. In the large unit, there are 1 million eligible voters, and an overones. whelming majority-800,000favor a unified regime. In the two smaller units, there are 150,000 voters each, and 100,000 favor the independence of their unit, a situation that is not at all implausible, given how the votes will go in a unified regime. If the three units vote as a totality, unification will prevail by a vote of 900,000 to 200,000; if they vote separately, the two smaller units will opt for independence by substantial margins. But who is to decide on the voting procedure? Clearly, this cannot be thought experiment, done by democratic vote, since a vote in a pregovernmental requires a defined electorate, and the a no government can be definition of the electorate is Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 43 the point at issue. Some sort of autocratic decision is required. This awkward problem can be ignored, however, if majorities in all three units favor unification, or separation for that matter. In that case, the result will be the precisely under either voting pattern. One could say that the vote could be taken once by each method, which would satisfy everyone’s preference (by hypothesis) or, alternatively, that it does not violate the principle of democracy to choose the voting method by nondemocratic means, since that choice will not make a difference. This is not an abstract matter; it is a crucial feature of national politics that implicates the precise issues to which federalism is addressed. From a national perspective, a proponent of representative democracy believes that a constitution should be established, and leaders should be chosen, by a majority of the electorate. But those whose primary loyalty is to a geographic region of this nation will object. &dquo;We do not want to be governed by strangers,&dquo; they will say, &dquo;and the fact that those strangers are more numerous than we are only makes the situation worse. We, too, believe in democracy, and we want a majority of the people-our peopleto decide whether we want to join your nation, and on what terms. If a majority of our people want to have an independent nation, rather than being part of a larger one, that majority should not be overridden by outsame siders.&dquo; A sense of national unity that is shared by every region of a nation conceals this awkward difficulty in the theory and practice of democracy by making it essentially irrelevant. FEDERALISM IN AMERICAN HISTORY For most of its history, the United States was a nation that needed federalism. The sense of national unity that would have led the voting populace to choose a unified, national regime did not prevail among the 13 American states at the time the Constitution was ratified and the United States was formed (Rakove 1979). People’s loyalty to their own state was stronger than their loyalty to the nascent national regime, and thus they opted for a federal system, where the constituent states retained large areas of autonomy as a matter of right (Lutz 1988; Rakove 1996, 161-202). Nor was there sufficient unanimity about the federalist solution to mask the authoritarian origins of the government. While a majority of the people, when considered as a totality, probably favored a federal union, a majority of each state’s population did not. In at least two states, North Carolina and Rhode Island, the majority was opposed, so that the autocratic manner in which the ratification process was established made a difference (Main 1961, 249; Van Doren 1948). In fact, these two states joined the Union only because they were compelled by further autocratic means. The same autocratic compulsion was applied to those regions within and beyond the established states with a Native American majority. It may also be assumed that, in any state, or Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 44 section of a state, where the majority of the people were slaves, that majority would have preferred to establish an independent regime where they were free, rather than joining a nation that continued to enslave them. During the first half of the nineteenth century, the new, federally organized nation was subject to two conflicting trends. On the one hand, the success of the central government, its general respect for white people’s rights, its acquisition of vast territories, and the dramatic increase in national wealth that it seemed to engender all contributed to a growing sense of national unity People began to think of themselves as Americans, rather than Georgians or New Yorkers (Ackerman 1991, 3-33; Beer 1993, 360-77). At the same time, however, the rejection of slavery in the North (Hildreth 1854; Olmstead 1953) and its enthusiastic continuation in the South (Fitzhugh [1854] 1965) created an ever widening division. To the people of the North, slavery was a violation of the nation’s true norms, and the people of the southern states were disruptive members of the polity who were violating those norms. But the white people of the southern states, the only people in those states with a political voice, were more committed to the institution of slavery than they were to the Union; despite their growing commitment to the nation in other areas, enough of their identification with their states remained that this identification could be reasserted, and become primary, when they found themselves unwilling to abide by the decisions of the majority regarding slavery Consequently, they decided to secede (Stampp 1959). At this point, of course, the democratic process and every other process of ordinary government broke down. The people of the North could longer use voting, persuasion, or appeal to national unity to convince the white people of the South to rejoin the Union because the southno an erners no selves as longer regarded them- part of the same polity. The only remaining approach was to start killing them and devastating their lands until they decided that the amount of misery that was being inflicted on them exceeded their commitment to slavery. At that point, they rejoined the Union on the central government’s terms. Despite this unpromising beginning, the nation was restored and a sense of national unity gradually developed. Slavery was the principal thing that had distinguished the South from the North; the other characteristic features of southern culture had been products of that basic difference. With the military defeat of the South, and the subsequent recognition that slavery was beyond restoration, white southerners began to see themselves once more as members of the United States. Within that general framework, however, they still wanted to retain their familiar social hierarchy and so proceeded, through the Ku Klux Klan, the crop lien system, the Jim Crow laws, and a variety of other mechanisms, to deprive the freed slaves of their newly won rights and the opportunity to improve their political, economic, or social status (Gillette 1979; Litwack 1979; Wood- Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 45 ward 1951). As the North’s centralizing impulse, fueled by moral outrage at the southern treatment of the slaves, gradually waned, the southern states were allowed to maintain the distinctive institutions that continued African American subjugation. In every other major arealanguage, religion, culture, race, ethnicity, and political ideology-white southerners and northerners were largely identical, and federalism served no function. Its only purpose, in the period that followed the Civil War, was to allow the southern states to maintain their system of apartheid. This system, and thus the role of federalism in the United States, lasted for about a century. Beginning in the 1950s, white people in the parts of the United States outside the South began to perceive the southern treatment of African Americans as morally unacceptable. The result was a series of actions by national institutions, which were dominated by these white nonsoutherners, to abolish southern apartheid; they included Brown v. Board of Education and other Supreme Court decisions, the Civil Rights Act of 1964, and the executive policies of the Kennedy, Johnson, and Nixon administrations (Harvey 1971; Martin 1979). These actions ceived, quite correctly, were as an per- abroga- tion of America’s remaining federalist commitment to allow distinctly different normative systems to prevail in different states. The success of the effort eliminated the major difference between the South and the rest of the United States. It contributed, moreover, to the elimination of the more subtle, incremental differences such as the South’s lower levels of wealth, industrial development, and education. The New South that emerged during the 1970s and 1980s shared the highly uniform, homogenized com- mercial culture of the United States as a whole. Any further need for federalism was thus eliminated. PUPPY FEDERALISM IN MODERN AMERICA At present, the United States is a socially homogenized and politically centralized nation. Regional differbetween different parts of the nation are minimal, and those that exist are based on inevitable economic variations, rather than any historical or cultural distinctions. Thus North Dakota is somewhat different from Pennsylvania, but most of those differences can be explained by the differences in their economic base; in any country, no matter how culturally uniform, agricultural and industrial districts will exhibit minor but predictable variations in political and social attitudes. There are also variations in the concentration of various religious and ethnic groups throughout the country. The low salience of religious differences in the United States, however, makes these differences virtually irrelevant. Ethnic divisions are, of course, more salient, and the concentration of African Americans in the South prior to the 1950s was one of the bases of the South’s distinctive culture and the continued relevance of ences federalism. The massive migration of African Americans to other sections Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 46 of the nation has largely eliminated this regional distinction; race relations remain a major problem in America, but it is a problem that now exists in virtually every region, where it is played out in similar terms. Hispanic and Asian ethnicity is also salient, but these groups have also become widely diffused during the postwar era. With the minor exceptions of Utah and Hawaii, there is no American state with a truly distinctive social profile. Those differences that do exist may loom large to us, but that is because of our insularity; once we compare our differences with the linguistic, religious, cultural, and historical differences that exist in large nations such as India, Indonesia, and Nigeria, or even smaller ones such as Spain, Cameroon, and itsy-bitsy Belgium, ours shrink to insignificance. Our political culture is more uniform still. The overwhelming majority of Americans identify with one of two major political parties, whose differences, while again salient to us, are minuscule by international standards. Our states, supposedly free to establish their own regimes, have opted for highly similar structures with minor variations (Gardner 1992). No state has instituted a parliamentary system, for example, although that is the dominant pattern for democratic regimes in the world today; only one state, Nebraska, dispenses with the peculiarly American feature of a bicameral legislature; no state denies its courts the power of judicial review. Certainly, no American state has even to establish a theoautocratic regime; thus, attempted cratic or under the current reading of the guarantee clause that restricts it to such matters (but see Merritt 1988), there has been no felt need to invoke the clause, or otherwise intervene in the political process of any state, during the entire course of the twentieth century (Bonfield 1962; Chemerinsky 1994; Choper 1994). Most important, the primary political loyalty of the vast majority of Americans is to the nation. Not only are there no separatist movements in this country, but there is hardly any talk of separatist movements. Virtually no group, no matter how disaffected, even imagines that it would implement its goals outside the nation as it cur- rently exists. Despite this high level of national unity, there remains a certain nostalgia for our bygone federalist system. This nostalgia arises from at least three sources, and probably more. The first is that the Framers rectly perceived are cor- having established a federalist regime, for reasons described above, and we incorrectly fear that some horrible as consequences will ensue if we admit that we no longer abide by their intentions. Second, the yearning of many Americans for the simplicity of the premodern era, and the more sinister yearning of some Americans for the moonlight, magnolia, and mint-julep era of the antebellum South, slides over to the federalism that prevailed at that time. Third, we dislike the centralized administrative state and see federalism as a welcome antidote to the government that we have created and that we need but do not like. Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 47 The result of all this yearning is that we continue to insist that we have a federalist system, even though we neither have it nor need it. The dangerous, debilitating problems that federalism is designed to resolve-the lack of national unity, the persistence of separatism, the underlying social and political differences that are cemented in place by centuries of history and hatred-are mercifully absent in the modern United States. Consequently, we no longer recognize federalism as an unfortunate expedient. The death, destruction, and misery that accompanied our Civil War, and that reflected the problems that federalism addresses, have faded from our memories, to be replaced with movies, history books, battlefield sites, and cutesy battle reenactments that capture the romance of the war and ignore its horrors. Thus we can enjoy the idea of federalism because we have forgotten the grave problems associated with its actuality. What we have instead is puppy federalism, a thin patina of rights talk draped across the areas where we have opted for decentralization as an administrative strategy. The actions of the Republicandominated Congress of the last six years illustrate the superficiality of American federalism. In general, the Republicans have declared a stronger commitment to federalism than the Democrats, yet recent RepubliCongresses have continued the policies of their Democratic predecessors, enacting statutes that federalize areas previously reserved to can state law and contradict the federal- ism decisions of a Supreme Court with which they supposedly agree. For example, the 104th Congress enacted the Church Arson Prevention Act of 1996, making destructive acts against religious institutions a federal crime. The act’s basis of federal jurisdiction is the one that proponents of federalism often dismiss as a pretext and that was used in the statute struck down by United States v. Lopez2-interstate commerce. That same Republican Congress also enacted Megan’s Law, requiring certain offenders to register with state law enforcement officers-apparently a case of the outrageous, Framer- ignoring, states’-rights-crushing commandeering of state officers that was struck down in United States v. Printz.3 The 104th Congress also enacted the Drug-Induced Rape Prevention and Punishment Act of 1996, which makes the use of &dquo;date rape&dquo; drugs a federal offense. In spirit, this act is an extension of the Violence Against Women Act, which was passed just before the Republicans took control of Congress and was struck down in United States v. Morrison4 on an interpretation of the interstate commerce clause. Technically, the act extends the Controlled Substances Act and will probably be invulnerable to judicial attack, but this only leads one to wonder why the Republican Congress feels comfortable endorsing and extending a statute drafted in 1970 by one of the most Democratic, nationalizing Congresses in history and taking away the states’ police power authority to decide which substances they will forbid their own citizens to ingest. This is, incidentally, a live issue, as indicated by the various Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 48 states that have tried to modify their prohibitions against marijuana, only afoul of federal authorities. The reason a Republican Congress would enact statutes of this sort is that our federalism is puppy federalism. When state policies correspond to national norms in a given area, or when there is no national norm, that area can be left to state authority As soon as a national norm emerges, and some states diverge from that norm, federal authorities will act, as they did against the southern states once racial equality became a general goal. In the last two decades, crime has become a matter of grave concern, and the result has been a steady federalization of the criminal law that continues regardless of the party in control of Congress. When the crunch comes, the crunch being a political demand for action, federalism counts for nothing. The 104th Congress’s most significant legislative action, the Personal Responsibility and Work Opportu- to run discourage the creation of out-of-wedlock children, not to provide these children with support; as the very first sentence of the act declares, &dquo;Marriage is the foundation of a successful society.&dquo; The methodology is to compel the states to achieve specified results in accordance with the stated purposes, rather than compelling them to follow specified procedures. Thus the statute gives block grants and does not specify procedures. This undoubtedly gives the states more latitude in the procedural area, but it imposes much greater demands regarding the results. It defines criteria for an &dquo;eligible state&dquo; (two different sets of criteria, actually), a &dquo;quali- fying state,&dquo; a &dquo;high performing state,&dquo; and a &dquo;needy state&dquo; (42 U.S.C. § 403(a)). In accordance with these various criteria, it demands that each state submit a plan to show how it will achieve the statutory purpose, sets specific guidelines for rates of out-of-wedlock births and work par- nity Reconciliation Act, might ticipation, places commitment to appear to reflect genuine federalism, but it does not; rather, it only underscores the absence of any such commitment. It is true that this act changes prior law in providing block grants of federal funds to the states, rather than channeling federal grants to individuals through state administrators as had been the case under the prior Aid to Families with Dependent Children (AFDC) program. But the main reason for this, despite the federalist rhetoric that accompanied its enactment, was that the federal purpose and federal methodology had changed. The purpose is now to a numerous prohibi- tions and limitations on the use of the block grants, provides bonuses to high-performing states, imposes penalties on states that fail to abide by the limits on fund use or fail to achieve specified levels of results, and requires frequent and detailed reports (id. §§ 404-11). Is this really federalism; is it really the way one sovereign treats another sovereign? It seems to bear a closer resemblance to the way a superior treats a subordinate administrator, and not a very trusted subordinate at that. There is a tone in all these provisions, and particularly in the bonuses and penalties, that is Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 49 demeaning to the states thus its national government will than the AFDC idea that they should continue to legislate on any issue administer federal funds in a speci- that it and the nation in general fied manner. The reason for this deem important. One possible conapparent breach of federalist eti- clusion is that the Supreme Court’s quette by a Republican Congress is recent federalism decisions are not difficult to discern. Because we incorrect-which they are-but as have only puppy federalism, the long as the ideology of the justices is national government will give states not overly divergent from that of the control over policy only in areas that nation as a whole, they are not likely to hand down any decisions with sigare not of national concern. It will retain control over any policy that it nificant impact. The real message of regards as truly important. When this discussion is for scholars. It is AFDC was enacted, child poverty time to stop being fooled by political rhetoric and mistaking puppy federwas the predominant concern, and subtext was that southalism for the real thing. Real federalthe political much more states could not be relied upon to treat their African American citizens fairly. With the rise of the New South, and the decline in Congress’s commitment to racial justice, this conern no longer predominates. Instead, we have the new moralism, with public policy directed to preventing out-of-wedlock births and ensuring that no one but the severely cern disabled receive welfare payments without working. The new law reflects those concerns. It does not represent a decrease in federal control but a new methodology for con- trol, a new public policy that the methodology is intended to achieve, and a new political subtext that seeks to discipline licentious New York and indulgent California, rather than racist Georgia and Louisiana. ism is gone; America is a centralized administrative state. Rather than mourning its demise, we should feel grateful that our nation no longer needs this unfortunate expedient, and we should focus our attention on complex and important issues, such as decentralization. Instead of a theory of federalism, we need a theory about what policies should be centralized, what policies should be decentralized, and, in both cases, the optimal way for a national government to supervise the regional subordinates that we continue to describe as states. Notes 1. 347 2. 514 3. 521 4. 120 U.S. 483 (1954). U.S. 549 (1995). U.S. 898 (1997). S. Ct. 1740 (2000). CONCLUSION There is no major law reform conclusion to be derived from this discussion. The United States possesses the blessing of national unity, and References Ackerman, Bruce. 1991. We the People. Foundations. Vol. 1, Cambridge, Mass: Belknap Press. Downloaded from ann.sagepub.com at MOORPARK COLG LIBRARY on February 1, 2011 50 Bartkus, Viva. 1999. The Dynamic of Secession. New York: Cambridge Uni- versity Press. Beer, Samuel. 1993. To Make a Nation. Cambridge, MA: Belknap Press. Birch, Anthony. 1993. The Concepts and Theories of Modern Democracy. London : Routledge. Bonfield, Arthur. 1962. 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