Thomas Halper
Does Region Really Matter?
A Constitutional Perspective
E pluribus unum—Out of Many, One—was the ofÞcial maxim of America’s
constitutional convention, and it encapsulates the centrality of regionalism that the
Framers felt compelled to address. How to put the maxim into practice? In an
abstract sense, the puzzle seems insoluble, for literally to derive one from many
is to obliterate plurality. But the Framers were problem solvers not put off by such
considerations, and the core of their response is contained in a term that permeates
the Constitution, though it explicitly appears nowhere in it. That term is “federalism,”
and in Philadelphia in 1787 the Framers created a system composed of central and
regional levels, each deriving its authority from the people and possessing the
authority to govern them directly.
The Early Years
Like most creations, federalism grew partly from both a memory of failure and a
dream of success. The failure was the Articles of Confederation that loosely tied the
states together in their war for independence, a government that began weak and
rapidly grew weaker. Under the Articles, state governments derived their authority
from the people and could govern them directly. But the central government, a fragile
and untidy organization of the thirteen states, derived its authority from the states,
and generally could govern only indirectly through them. As a consequence, the
central government emerged as wholly dependent upon the states for enforcement
of its orders and collection of its taxes. It did not take long for states to conclude
that there was no reason to enforce a national directive not in their interest or to
collect all the taxes due the central government, which as a consequence could not
pay its debts. The central government, in short, was reduced to a mere pleading
supplicant that states could ignore at their convenience.
To the extent that this affected what economists know as indivisible public
goods, it created a classic free rider problem: if a beneÞt accrues to everyone, it
will seem rational to let others pay for it, but if too many opt for the free ride, there
will be insufÞcient resources to supply the good. Individual rationality can thus
subvert group rationality. With national security, the most prominent public good,
the free rider temptation proved so potent after the war with Britain was won that the
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Articles could neither induce the states to outÞt a navy nor to pay its 700 soldiers.
And because national action required unanimity among the states, contentious
issues, like inßation or trade policy, were not addressed. It was not simply that it
was difÞcult to get all the states to agree; it was also that if unanimity was in sight,
the remaining few states would hold out, making their agreement conditional on
extortionate demands, which not only blocked action but also generated mistrust
and ill will. With what Madison called a “want of concert in matters where common
interest requires it” (Madison, Writings 69), the nation was plainly too divided and
impotent to achieve much stature abroad or to bring order and prosperity to the
economy at home. Moreover, since it did not get its authority from the people or
govern them directly, the central government inevitably appeared ineffective, and
therefore illegitimate, for as Madison observed, the people “cannot long respect
a government which is too feeble to protect their interests” (Madison to James
Monroe, August 7, 1785, Papers, 8:336). Even when the Articles were successful,
as in adopting the Northwest Ordinance as a scheme of territorial governance or
concluding a peace treaty with Britain, it rarely received due credit.
The weakness of the Articles necessarily elevated the role of the states. But
what Jefferson termed their “endless quibbles, chicaneries, perversions, vexations,
and delays,” (qtd. in Ketcham 162) plus their pandering to debtors, struck many
Framers as alarming. “The vile State governments are sources of pollution which
will contaminate the American name for ages,” declared Henry Knox, later President
Washington’s secretary of war. “Smite them, smite them in the name of God and
the people” (qtd. in Drake 96). The centrifugal force of excessive regionalism
threatened to tear the republic apart.
If the Articles represented failure, the success the Framers envisioned was of
a central government strong enough to avoid the Articles’ inÞrmities, and yet not
so strong as to devitalize the role of the states. It was a bold and difÞcult dream to
attempt to realize, and as the Þfty-Þve men gathered for the constitutional convention,
it was by no means self-evident to them that federalism was the answer. It was also
a dream full of uncertainty because it was unclear to which level of government the
public would believe had Þrst call on their allegiance.
The issue was contested by two opposing groups. The Federalists saw the
nation as potentially a major commercial republic, and they believed its large size
required a powerful central government. Madison called America an “extended
republic” and, against nearly all prior thinkers, understood size as an advantage.
A large republic, he explained, would necessarily contain a multitude of factions,
which, competing against each other, would make it very unlikely that any single
group (particularly, a majority) would establish a lawful tyranny. Heterogeneity
was thus counted as desirable. Size was also a plus in that it would necessitate
a representative and not a direct democracy, for representation would tend to
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Þlter out uninformed or extreme opinions, while encouraging moderation and
compromise.
Though the Anti-Federalists conceded that “the present confederation is
inadequate to the objects of the union” (Samuel Bryan, qtd. in Bach and Stone 601),
they also believed that to establish a republic over a huge territory would be like
trying “to rule Hell by Prayer” (Thomas B. Wait to George Thatcher, November 22,
1787, in “Thatcher Papers” 268). They thought a republic was possible only with civic
minded citizens, who could put the public interest over their own private concerns.
This could arise only in genuine communities, but they believed the pursuit of wealth
would undermine the sense of community, and an extended republic in any case
was plainly too big to constitute a community. Anti-Federalists accordingly favored
power exercised at the local level by homogeneous communities comprised of
people of roughly equal wealth and not preoccupied with acquiring property. These
communities could be found only in smaller units, which here meant the states.
The Anti-Federalists were joined by other delegates from smaller states, who
feared that a strong central government would be dominated by large states that
would be insensitive to their interests. Such a government, they feared, would be
poorly suited to rule a nation of diverse people tied to regional economies and
separated by long distances. Unmoved by the Federalists, they saw a strong
central government as threatening.
In the end, though, the Federalists were forced to make some important
concessions—Congress was denied the power to veto state legislation, for
example, and Senate representation was based on states— and it was their vision
that the Constitution embraced. Thus, the new Constitution endowed the national
government with important powers not granted under the Articles, including the
power to tax, to levy tariffs, to raise armies, to regulate the national economy,
and to establish a national court system. Like the Articles, the Constitution also
contained a supremacy clause asserting the supremacy of the Constitution over
state constitutions and statutes. The dissatisfaction with the Articles that convinced
the Framers that they were beyond repair also persuaded them that a much
stronger central government was essential. Practical considerations, not notions of
abstract rights or duties, directed the decisions. The states survived and retained
much of their vitality, but the forces of regionalism were broadly subdued, with
major long term consequences.
The clear-cut triumph of the Federalists is reßected in the long list of powers
delegated to Congress in Article I, section 8. At the end of this list appears a
beguilingly vague clause granting Congress the power “to make all laws which
shall be necessary and proper for carrying into execution the foregoing powers.”
This cryptic clause was to prove of immense importance. In 1816 Congress
established a second national bank. The Þrst bank had proved so unpopular that
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Congress had permitted its charter to expire, and the second bank, ineptly managed,
soon became even more unpopular, provoking states to take actions against it.
Maryland imposed a tax on the branch of the bank operating within its borders; the
bank refused to pay the tax; and the battle was joined. The Supreme Court ruled
on the matter in McCulloch v. Maryland (1819), in what is almost certainly its single
most signiÞcant case. The opinion was written by chief justice John Marshall, who
believed that if the nation were to fulÞll its potential, it would require a powerful
central government, secure property rights, and a Supreme Court willing and able
to enforce them. It was these views, shaped by experience and not by recondite
speculation, that drove his ruling.
“Has Congress power to incorporate a bank?” Marshall asked. Maryland had
argued that the Constitution nowhere expressly gave Congress that authority,
and that it was plainly not necessary that the nation have such a bank. Marshall
replied that the Constitution grants Congress the power to lay and collect taxes, to
borrow money, to regulate commerce among the states and with foreign nations,
and to make all laws necessary and proper to carry out these powers. How, then,
shall “necessary and proper” be construed? Marshall’s answer was founded on
his conviction that his task was to interpret “a constitution designed to endure for
ages to come,” and that this meant that its key provisions had to be interpreted
broadly to permit them the ßexibility needed to adjust to changing times. To interpret
“necessary and proper” as “absolutely necessary,” therefore, would be at war with
the Constitution’s central purpose: to provide a workable scheme of government.
Construing “necessary and proper” broadly, Marshall concluded that Congress’
power to incorporate a bank could be implied from its delegated powers over
economic matters. This notion of implied powers has come to provide the chief
legal justiÞcation of what is known as the living Constitution, the most common
rationale offered for the growth of the national government.
After establishing that Congress could create a bank, Marshall then had to ask
whether Maryland could tax it. “The Constitution and the laws made in pursuance
thereof,” he answered are supreme.” If Maryland could regulate instruments of the
national government for its own convenience, the Constitution and national laws
would soon lose their signiÞcance. A part of the nation cannot prevail over acts taken
by the whole nation. States, Marshall announced, “have no power, by taxation or
otherwise, to retard, impede, hinder or in any manner control the operation of the
national government.” Thus was the principle of national supremacy irrevocably
established: when otherwise valid national and state laws conßict, the state laws
must give way.
Implicit in this decision, too, was the principle that the Supreme Court shall
act as umpire in disputes between the national and state governments. Has
Congress exceeded its authority? Is a uniform national rule required? Does
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Congress intend to pre-empt the whole Þeld of legislation? Since 1937 and
Franklin Roosevelt’s battle to pack the Court, it has almost invariably sided with
the national government.
Yet regionalism was not slain by McCulloch, but has remained a sonorous minor
theme. Years earlier, Jefferson, whose writings suggest that he imagined the pursuit
of happiness to end at a family farm, made clear that he preferred government
close to the people as more responsive to their needs, fears, and desires. (In this,
he was not always consistent, opposing Washington and Hamilton’s national bank,
but while in the White House he aggressively expanded presidential authority by
purchasing the vast Louisiana Territory.) His Kentucky Resolutions, written to protest
the Alien and Sedition Acts (1798) that he believed abridged civil liberties, stand
as a classic justiÞcation of states’ rights. Echoing the failed Articles, he reasserted
the vision of the Constitution as compact, denying that the national government
was “the exclusive or Þnal judge of the extent of the powers delegated to itself,
since that would have made its discretion, and not the Constitution, the measure
of its powers” (Jefferson 17:379). Instead, he argued each state, as a party to the
compact that created the nation, could decide whether the agreement had been
violated, and if so, what action could be taken. Kentucky determined that the Alien
and Sedition Acts violated the Constitution, and announced that it would refuse to
enforce them. A decade later, when Jefferson had Congress pass the Embargo Act
directed against British depredations on the high seas, his foes in New England
condemned him with his own Kentucky Resolutions’ words.
The most prominent nineteenth-century regionalist was undoubtedly John
C. Calhoun, secretary of war, vice president, senator from South Carolina, and
the South’s most renowned antebellum Þgure. Calhoun Þrst drew attention as a
vigorous advocate of national power, speaking in favor of protective tariffs, a national
bank, and congressionally funded infrastructure; however, once South Carolina
developed a cotton-based, export-import driven economy and the competitive
North grew in population and prosperity, he opposed tariffs and formulated militant
defenses of states’ rights.
When Congress adopted what he called the Tariff of Abominations (1828),
Calhoun protested that the Constitution gave states, acting through popularly elected
conventions, the right to nullify national laws within their borders, even referring to
secession. In South Carolina’s Ordinance of NulliÞcation, he complained that the
tariff forced the South “to sell low and . . . to buy high . . . . Our ruin must follow.”
Hence, an attempt to enforce the tariff in South Carolina would be “inconsistent
with the larger continuance in the Union” (Calhoun, Works 5:21). (The Ordinance
went nowhere, as President Andrew Jackson had Congress pass a Force Bill,
giving him military authority to carry out the law; later, he had Congress lower the
tariffs, and in return South Carolina repealed the Ordinance.)
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In A Disquisition on Government (1850), which appeared shortly after his death,
Calhoun elaborated on his argument for nulliÞcation. The democratic right to vote,
if unchecked, would degenerate into a tyranny of the majority over dissenting
groups and interests, he claimed. Madison’s answer had been factions checking
and balancing each other in society, a key supplement to the checks and balances
in government. But Calhoun thought this inadequate, fearing that it would instead
make it “easy for one portion of the community to pervert its power to oppress
and plunder the other” (Calhoun, Disquisition 4). Thus, he proposed that the
numerical majority be countered by a concurrent majority representing all interests
concerned. As he conceived interests essentially in regional terms, he would locate
the concurrent majority mostly at the state level. The Constitution, in his view, was
created by the pre-existing states as a compact among them, with each entitled
to protect its core interests from the whole. If a state believed these interests to
be threatened, it should be able to call a popularly elected convention to consider
nulliÞcation. The federal government could then reverse the nulliÞcation through
a constitutional amendment, and if the amendment were adopted, a state could
choose either to accept defeat or to secede. Because this process would be both
lengthy and damaging to all sides, Calhoun thought it would “cause the different
interests . . . to desist from attempting to adopt any measure calculated to promote
the prosperity of one, or more, by sacriÞcing that of others, and thus to force them
to unite [to] promote the prosperity of all”(Calhoun, Disquisition 28).
Instead, many feared that Calhoun’s concurrent majorities plan would encourage
intransigence by drawing out negotiations and emboldening hold outs. What was
undisputed was that his plan would make it much harder for the national government
to act, but inasmuch as events in one state may have consequences for another,
this national weakness could generate all sorts of problems. Consider industrial
pollution carried by winds across state boundaries; businesses in the originating
states would want to avoid paying for the harm they caused. Absent an overarching
national government, how could the businesses be held responsible? Or consider
designing a national highway system; how could the government coordinate roads
within states so as to form a coherent whole, when each state has its own agenda
and the last few hold out states would likely leverage their position? Intransigence,
however, was Calhoun’s true goal—intransigence in defense of slavery. The plan
never stood a chance of adoption.
It is bizarre to contemplate that Calhoun, the preeminent defender of slavery,
was also a prominent foe of majority tyranny. (Perhaps the proximity to slaves
made liberty taste sweeter; or perhaps liberty for him simply included the liberty
to own slaves.) But in any case, the Civil War irreversibly settled the questions of
nulliÞcation and secession, and the 13th, 14th, and 15th Amendments that followed
stripped the states of much of their former power. No longer could they permit
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slavery, determine citizenship, deny persons equal protection of the law, and
deprive persons of life, liberty, and property without due process of law. (In time,
this due process clause served as a device to apply most of the Bill of Rights to
the states.)
But if Calhoun today is mostly of antiquarian interest, regionalists’ states’ rights
arguments have continued to be asserted to advance or impede a wide variety
of policies. As the nation industrialized in the late nineteenth and early twentieth
centuries, business worked to ensure that regulation came from the state level,
where it could more easily be manipulated to suit their purposes. The Supreme
Court usually agreed, holding insurance (Paul v. Virginia), mining (Carter v. Carter
Coal Co.), whisky distilling (Kidd v. Pearson), lumbering (Coe v. Errol), sugar
reÞning (United States v. E.C. Knight Co.), and Þshing (Ex parte Fritz) all immune
from national regulation. In rulings at war with the principle of national supremacy,
the powers reserved to the states in the 10th Amendment were said to limit the
powers delegated to Congress in Article I. Similarly, during this period, the South
successfully took the position that race relations were entirely the states’ affairs.
As African Americans were effectively excluded from the political process and
subjected to rigid and elaborate segregation, the result was to shield systematic
cruelty and oppression from any remedy. Even anti-lynching bills were impotent in
the face of states’ rights claims. More recently, though, some progressives have
found some merit in states’ rights, noting that decentralization may empower groups
who would otherwise lose out at the national level. Federalism thus allows these
groups to translate their rights—to vote, to speak, to organize, to hold ofÞce—into
tangible power.
That regionalism continues to enjoy robust support was well illustrated in a 2012
Pew Research Center poll. In the decade 2002-2012, the poll found that favorable
ratings of the national government dropped almost by half from sixty-four to thirtythree percent. At the same time, ratings for state governments declined only from
sixty-four to Þfty-two percent, and local governments only from sixty-seven to sixtyone percent. By substantial margins, respondents gave states higher marks than
the national government for honesty, meeting people’s needs, efÞciency, being able
to put partisanship aside and work together, and being careful with the people’s
money.
Centralization
Historically, there can be little question that federalism has been characterized
by growing centralization. Direct spending by the national government—to the aged
on Social Security and Medicare, to veterans receiving beneÞts, to students getting
loans or grants, to corporations awarded defense or other contracts, to scientists
working in nationally supported health institutions or laboratories—is enormous,
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and its trajectory steadily rises. Too, funds offered by Washington to the states
may provide overwhelming leverage. Policy areas once dominated by states may
now have a large national presence. In education, to take one of the states’ chief
functions, states are no longer free to require racial segregation, and with George
W. Bush’s No Child Left Behind and Barack Obama’s Race to the Top, Washington
expressed its dissatisfaction with the states’ approaches and became involved in
shaping the classroom experience. In President Obama’s controversial Affordable
Care Act (2010), the national government also increased its inßuence over health
care.
Insistent voices have bemoaned (and exaggerated) this centralization. Can
anything be done to counter it? Since the late 1970s, there has been considerable
talk of devolution, which entails dispatching decisions to the state level or to private
actors (privatization). Periodic paroxysms of populism or ßirtations with the free
market may provide the impetus, and information technology may have provided
an attractive example of decentralization in action. Thus, Congress, for example,
in its 1996 welfare reform act gave states much more power over eligibility
criteria, beneÞts, and administration than they possessed under the old system; in
transportation and communications policy Congress has eliminated a great deal of
the pre-existing mass of regulations, thereby setting businesses free.
The contending movements toward centralization and devolution and away
from regionalism point to an important fact about federalism: it is a dynamic
system always in ßux. Elaborate justiÞcations supporting or opposing change are
frequently wrapped in philosophical or historical references, but the driving forces
are almost always practical considerations of policy or partisan self-interest driven
by mundane or crisis level concerns.
The Persistence of Regionalism
Though the long term trend is toward centralization, regionalism remains robust,
and there are powerful functional and structural factors that have contributed to its
persistence. The Constitution created a rough division of functions, delegating to
the national government control over activities like defense, foreign relations, and
interstate commerce, which seem to concern the whole republic or which require
the nation to speak with one voice. Here the national government must be the
master of its own affairs and not dependent upon the states, which might pull it in
different directions or prevent it from acting altogether.
Many of the national government’s powers reinforce each other. Its power to
regulate commerce, for example, is heightened by its power to coin money, tax,
operate a postal service, and regulate bankruptcies, patents, and copyrights.
Typically, the national government’s powers appear in the Constitution in very
imprecise terms, although they were not intended to be unlimited.
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Powers not delegated to the national government or forbidden to the states are
reserved either to the states or the people by the 10th Amendment. These reserve
powers (which are not spelled out) encompass functions like health, education,
sanitation, and public safety, the basic tasks that affect ordinary citizens nearly
every day. The Framers thought it best to leave these functions to the various
states and localities to determine according to their differing needs and desires,
though the national government has since become a major player here.
Federalism is so practical a concept that even this rough division of functions
may suggest sharper distinctions than actually exist. Thus, though federalism is
often spoken of as a layer cake, it should more usefully be conceived as a marble
cake, where the swirl of colors suggests the mix of functions (Grodzins 265). Nor
is this a recent development. As early as 1785—two years before the constitutional
convention—the central government, weak as it was, was involved in the local
function of education.
Many intergovernmental enterprises have been driven by central government
grants-in-aid to the states. Until World War I, these grants consisted chießy of land,
and were designed principally to promote education and agriculture. From World
War I to the Great Depression, grants were largely money for highway construction.
Since the Depression, the emphasis has changed to public welfare, unemployment
assistance, and Social Security.
It has never been hard to understand state and local enthusiasm for the grant
idea. By permitting state and local ofÞcials the ecstasy of spending without the
agony of taxing, federal aid has seemed to many politicians a bountiful gift from
heaven, and they have organized to lobby Congress to preserve Washington as a
magniÞcent money machine. Though they love to receive grants, states frequently
complain about how difÞcult it is to apply for money and how many conditions
are imposed on its expenditure. The root cause, they claim, is the arrogance of a
Washington convinced that it always knows best.
Washington ofÞcials reply that as the grants consist of money raised from the
nation as a whole and are intended to fulÞll national objectives, they must be spent
as Congress intended. They maintain that the charge that Washington unilaterally
imposes arbitrary regulations on states and localities is very far from the mark. State
and local ofÞcials invariably are given opportunities to shape federal legislation
and regulations, and bargaining with an eye toward adjusting differences through
compromise is far more common than take-it-or-leave-it commands. Still, if states
Þnd the central government’s conditions that onerous, they always retain the option
of not asking for the money.
Congress has supplemented the grant system with unfunded mandates, in which
the national government instructs states to carry out certain tasks, but provides
them with little or no money with which to do them. This reverses the usual pattern
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of states feeding off the national government. In response to criticism, Congress
passed the Unfunded Mandates Reform Act in 1995, but the states continue to
complain about education, environmental, and other programs, where they contend
the practice continues.
What emerges from the whole picture is a grant system heavily marbled
with intergovernmental conßict and cooperation. Yet the broad goals remain:
to establish national standards for particular services through the imposition of
nationwide guidelines; to induce states and localities to adopt policies that the
central government has no constitutional authority to require on its own; and to
redistribute resources from richer and more densely populated regions to poorer
and more sparsely populated regions. As a consequence, grants have become
important as weapons of policy and politics.
Innovation, however, is by no means monopolized by Washington. States have
often served, in Brandeis’s words, as the “laboratories of democracy,” developing
primary elections, referenda, anti-discrimination policies, and welfare reforms,
some of which the national government subsequently made its own.
Federal courts, particularly the Supreme Court, have also been important in
blurring the distinction between national and state functions. Education, for example,
has always been considered one of the premier functions of the states, and yet the
Supreme Court insisted that they were not free legally to require schools to be
racially segregated (Brown v. Board of Education); similarly, the Court instructed
state and local police to inform suspects of their rights (Miranda v. Arizona) and
state and local legislative bodies to apportion themselves on a one-person-onevote principle (Reynolds v. Sims).
Reinforcing the national/regional division of functions is a system of independent,
though similar, structures. The national and state governments are elected separately
and govern separately (though the Constitution gives states a role as states in the
Senate and the Electoral College). Both the national and state levels, however, are
organized into legislative, executive, and judicial branches. (Nebraska’s legislature
has only one chamber.) This parallel structure is not mandated by the Constitution,
which requires only that states follow the republican form of government.
Beyond the separation of powers, however, immense diversity and further
decentralization is apparent, as each state is subdivided into counties, school
districts, and special purpose districts. No single national scheme is followed.
Counties may be headed by legislatures, elected commissions, or executives;
they may be charged with important tasks (Maryland’s counties are responsible
for schools) or be conÞned largely to ceremonies (like the Þve counties that
comprise New York City). School districts generally feature elected boards, and are
funded almost entirely from local property taxes and state aid; they have radically
decreased in number, as rural districts have been consolidated in the name of
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improving education. Special purpose districts target speciÞc issues, like mass
transit, sewage, water, or soil conservation. They have proliferated and become
more important because they can tackle issues that cross political boundaries,
because they are willing to address problems that frighten elected ofÞcials, and
because their technocratic focus and low public visibility allows them to get things
done with relative efÞciency An example is New York City’s Metropolitan Transit
Authority, which operates subways and buses in the city, as well as commuter
trains to the suburbs. Complicating matters still further, some states and localities
have decided to save money by outsourcing certain tasks (like operating prisons)
or have even sold infrastructure (like highways) to private companies.
One consequence is that regional politics has remained vigorous and
independent of national control. This, in turn, has helped to root parties at the
state and local level, rendering them far more decentralized than most of their
European counterparts. It has also offered the opposing party an opportunity to
develop attractive candidates and proposals that it can use to challenge the party
in power. Four of the past six presidents have been governors, and every one
of them had been in the opposition party. In this sense, federalism facilitates the
electoral competition that is so vital to democracy. And, of course, the vigor of
state and local politics guarantees that states and localities will themselves retain
signiÞcance as political players.
Another consequence is that the parallel structures act as one of the system’s
most prominent checks and balances. National/regional conßict is endemic, as
each level seeks to exercise control over the same issue or to tax the same citizens.
Cooperation, however, is endemic, too. Often this takes place informally, as national
and state ofÞcials discuss mutual problems in an effort to achieve satisfactory
solutions in a spirit of responsibility and compromise. But sometimes cooperation is
achieved formally in such areas as the regulation of utilities and certain other major
industries, environmental and navigation programs, supervision of elections, and
the construction of public improvements. In a few areas, the Constitution demands
cooperation, but most often it is simply permissive.
With checks and balances comes the criticism of insufÞcient coordination, for it
is the very essence of compromise that neither side receives all it sought, and so
the result will nearly always appear to some as truncated or inadequate. If there
were no regional entities and only national ofÞcials issuing orders, policies might
be far more comprehensive, uniform, and logically consistent. But, of course, as
defenders of federalism like to point out, this would not necessarily be a good
thing. Compromises frequently improve policies by forcing consideration of a
variety of interests and perspectives. And the prospect of national ofÞcials issuing
orders without state interference may seem to hold the promise of a disturbing
authoritarianism.
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The problem of coordinating national and state entities is exacerbated by
competition among the states, chießy for productive citizens and businesses.
Those sympathetic to the competition see it as essential in enforcing Þnancial
discipline on the states and limiting the reach of their governments. By providing
a range of options, it is said to enhance liberty. Critics believe, however, that by
forcing states to compete for jobs and taxes, this competition unfairly strengthens
the hand of corporations, who can leverage offers from one state to extort beneÞts
from another. Hence, talk of a race to the bottom.
The Constitution recognizes only states as regional governing bodies. Cities,
towns, counties, and other local government units are simply not mentioned. Rather,
they are considered creatures of the state, created by a state for its convenience
and thus vulnerable to a state’s decision either to alter the arrangement or even
to abolish the unit. According to the Dillon Rule (announced by an Iowa judge,
John F. Dillon, in an inßuential treatise on municipal corporations) all municipal
powers should be construed narrowly, and “any fair, reasonable, substantial doubt”
be resolved against the municipality (1:448). How is it that a people celebrating self
government have denied independence to the level of government most responsive
to their desires? This apparent anomaly is not always borne out in fact. Most state
constitutions grant large cities at least partial home rule, and localities are both
represented in legislatures and able to defend their interests.
Still, limitations on local governance are undeniable. Small cities and towns
are denied home rule. Cities frequently need state approval to impose taxes, and
issues of city-suburb relations that bubble-up in questions of commuter taxes and
public transportation ordinarily are decided not by the contestants but by the state.
Local governments are also restrained in their authority to borrow money, and key
special purpose districts are created by the state and beyond the control of the
localities within which they operate.
A New Regionalism?
With the post-World War II era, the urban-rural dichotomy began to be trumped
by the exponential growth of suburbs. At Þrst derided as bedroom communities
dependent on adjacent cities for employment and culture, they have long since
become much more self sufÞcient and self contained. Indeed, it has become a
cliché for residents to claim for suburbia the best of both city and country, with its
shopping and entertainment choices plus its low crime and single-family homes
with lawns.
Suburbs have generally used their boundaries to protect themselves from what
they see as the problems of the cities (crime, poverty, inferior public services).
Racial and economic segregation, though rarely openly acknowledged, has also
sometimes been a chief concern. Cities often speak of the advantages of annexing
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Does Region Really Matter? A Constitutional Perspective
suburbs into metropolitan governing units or adopting tax-base sharing that
connect the localities economically, but these proposals are rarely implemented
due to suburban opposition.
At the same time, formal jurisdictional borders have lost much of their salience,
as the lines between city and suburb or between suburb and suburb have become
so indistinct as almost to disappear. Increasingly, Americans identify places in terms
of highways (the PaciÞc Coast Highway or the Long Island Expressway) or the
names of shopping malls (Woodbury Commons or the Mall of America), ignoring
the town identiÞcation entirely. Many suburbs (unlike typical small towns) are too
new to have much in the way of historical identity or traditions. (Gated communities,
generally high priced, function almost as small, private governments.)
The proliferation of suburbs has also undercut the stereotype of the wealthy
enclave, for over half the poor in large metropolitan areas live in suburbs, which
often have not developed the appropriate institutions (social service agencies,
clinics, etc.), while sizable numbers of the well-to-do have moved to cities. Quality
of life and Þnancial complaints (trafÞc congestion, taxes, high energy costs) that
once damned cities are now often heard plaguing suburbs. And though well paying
jobs remain disproportionately in suburbs, sizable numbers of the prosperous and
young professionals have chosen to live in cities, giving rise to the controversial
phenomenon of gentriÞcation. With suburbs, region has taken on meanings that
Jefferson and Calhoun could scarcely have imagined.
Conclusions
The Constitution, with its federal structure, has helped to ensure both the
dominance of the national government and the vitality of regional governments.
Other factors—history, ideology, geography, technology, and so on—also have been
in play. A consequence has been that in an era generally considered hospitable to
centralization, regionalism remains healthy and vigorous.
With the Constitution focusing so heavily on the national government, state and
local governance has essentially been left to the ordinary political process. The
outcome, in a nation as large and diverse as the United States, has been a rather
stunning variety of institutions, approaches, and policies. Some of the resulting
rhetoric has embraced politics; some has disdained politics; none of the players
has avoided politics. The talk is generally of “good government” or “what works,”
but self interest rarely abdicates its position of dominance. This preoccupation with
the practical is exactly what the preeminently practical Framers had in mind and
why, today as in 1787, region matters.
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Thomas Halper
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