Federalism is on a Roll | Opinion

In the early 20th century, two of England's intellectual giants engaged in a series of debates. Playwright George Bernard Shaw was the resident apologist for income redistribution and central planning. Opposing him was G.K. Chesterton, a Catholic writer who argued in favor of property rights and the decentralization of political power.

"I found they were utterly insensate and grotesque," Shaw said of arguments for the wealth inequality of his day. "Eventually, I was convinced we ought to be tolerant of any sort of crime except unequal distribution of income." Shaw's words were a distillation of what would become modern progressivism.

"There ought to be in the world a great mass of scattered powers, privileges, limits, points of resistance, so that the mass of the Commons may resist tyranny," responded Chesterton. "There is a permanent possibility of that central direction, however much it may have been appointed to distribute money equally, becoming a tyranny."

"Mr. Bernard Shaw proposes to distribute wealth," Chesterton summarized. "We propose to distribute power."

That's been the argument raging in America since our founding: how do we best distribute? From the top down or the bottom up? With the individual—and, as Chesterton argued, God—as the sovereign? Or the state and its credentialed central planners, as Shaw argued?

Our Constitution famously scatters powers between the branches of government—even within Congress itself. Less famously, it allowed the states to compete with the federal government, and to compete among themselves, too. That competition—those 50 policy laboratories—proves time and again that a centralized approach to decision making doesn't produce optimal results. It's called federalism, this feature of American life, and it's baked into our system in ways that confound the whims of progressives and central planners.

In the last two years, federalism has been on a roll. A recent COVID-19 report from the National Bureau of Economic Research comparing policy results from state to state proves the point. The study evaluated states on three variables: mortality rates, education and the economy. The results were shocking to some—especially to the central planners in Washington D.C.—and quite welcome to those who challenged the groupthink coming from the Beltway experts and their media cheerleaders.

No state fared better than Utah, scoring well across all three categories. Other top performers—mostly small states, many of them red—included Nebraska, Montana, South Dakota, Arkansas, Idaho, Vermont, Maine and New Hampshire.

The only large state to appear in the top 10 was Florida, which ranked sixth. Though Governor Ron DeSantis earned the ire of the Beltway crowd and press corps for his handling of the pandemic, the state he governs ranked almost equally with another large state, California, on the mortality front (28th and 27th respectively). While California gained little from the incessant lockdowns and school closures on the mortality rate, it suffered greatly, ranking 47th on economic performance and dead last in education loss. And that's not counting the emotional and psychological cost to millions of California's children—and millions of adults, too. Florida, by contrast, experienced the third-least education loss and the 13th-best economic performance. The lockdown juice, it turns out, wasn't worth the squeeze.

The bottom 10 in that report were primarily states with stringent lockdowns, and those that were last to reopen their schools. The media's darling governor, New York's Andrew Cuomo, led his state to the dismal overall ranking of 49th.

You likely haven't read about the study, or just how wrong the D.C. consensus was on a host of issues related to the pandemic, in the mainstream media or big social media giants. That's because the one thing D.C. bureaucrats and their media enablers hate more than opposing viewpoints is real-life data from competing power centers—power centers closer and more accountable to "we the people."

Luckily for all of us, our governors answer to a higher power than Anthony Fauci. They answer to their constituents, who have doctors of their own, and can measure risk in their lives quite capably.

Federalism Is on a Roll
Federalism Is on a Roll. Florida Gov. Ron DeSantis (L), Andrew Cuomo (M) and Anthony Fauci (R) iStock / Getty Images

Moreover, governors live with the real-life consequences of their decisions. They must consider real-life tradeoffs barely discussed by the health bureaucrats in D.C. It wasn't cold or inhuman to consider such things, it turns out; it was cold and inhuman not to.

Federalism wasn't just a winner on the COVID-19 front. Back in January, the United Van Lines released its 45th Annual National Movers Study, which tracks where Americans are moving to and from. Topping the outbound migration was New Jersey, a spot it's held for the past four years. That's right: the Garden State led the nation in people fleeing its borders.

Other states doing a good job of turning their own citizens into refugees were Illinois (second), New York (third), Connecticut (fourth) and California (fifth).

Where are those refugees from blue states fleeing to? South Dakota, South Carolina, Florida, Alabama, Tennessee and Idaho were among the top 10. And Americans were not just moving to those states for the weather. It turns out public policy matters. Taxes and regulations and how states treat capital—of both the human and financial varieties—affect where people move to and from. Federalism doesn't just permit such choice and movement. Healthy competition between the states encourages it.

The last bit of news on the federalism front occurred when Americans learned from a leaked draft opinion that the U.S. Supreme Court may overturn Roe v. Wade. Many mistakenly assumed that abortion would be outlawed in the country. Nothing could be further from the truth. The current majority simply believes Roe was very bad constitutional law.

Conservative critics of Roe aren't alone. Esteemed liberal scholars who favor abortion legalization have been some of Roe's fiercest critics. Back in 1973, Harvard Law Professor John Hart Ely, writing in Yale Law Journal, said so in his article "The Wages of Crying Wolf: A Comment on Roe v Wade:"

If [the decision] lacks connection with any value the Constitution marks as special, it is not a constitutional principle and the Court has no business imposing it. I hope that will seem obvious to the point of banality. Yet those of us to whom it does seem obvious have seldom troubled to say so. And because we have not, we must share in the blame for this decision.

Ely, who would become dean of Stanford Law School, noted that Roe is bad not because it is bad constitutional law, but "because it is not constitutional law and gives almost no sense of an obligation to try to be."

Writing in the Harvard Law Review the same year, liberal legal legend Laurence Tribe was equally critical. "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

In short, the Supreme Court in Roe acted as a super-legislature, taking a difficult moral issue out of the hands of the voting public. If Roe is overruled, conservative judges will be doing quite the opposite. Rather than impose their will on all 50 states, Americans will go to the polls to vote on the matter for the first time in 50 years. Some states will make abortions less restrictive, others more. Some may choose to outlaw abortions entirely.

I hope the voters in my home state of Mississippi keep the 15-week restriction in place. But it's a matter for the people of my state—and all 50 states—to decide. Not nine judges.

That's federalism at its best. It puts the power to answer profound moral questions—be they COVID policies, tax rates or abortion laws—where our Constitution says it resides: in the legislature. And, thanks to federalism, with the conscience of the voters in the 50 states that comprise our vast constitutional republic.

Lee Habeeb is vice president of content for Salem Radio Network and host of Our American Stories. He lives in Oxford, Mississippi, with his wife, Valerie, and his daughter, Reagan.

The views expressed in this article are the writer's own.