Federalism in the Age of Virtual Democracy | Jonathan Turley
Articles,  Blog

Federalism in the Age of Virtual Democracy | Jonathan Turley


Thank you very much. I’m cleanup batter
and first I want to say thank you very much at the Center to the University for
holding this wonderful conference. I have to start out with one disclaimer which
I’m required to give and that is particularly the on subject we’re talking about because I’m
lead counsel for the US House of Representatives in the challenge of the ACA. I just have to state that whatever
I’m gonna state from this point on, I’m not speaking for the House of Representatives, which I’m sure they
would be very relieved to hear. Second, by the way the ACA suit, as was discussed
earlier, actually most of these cases are not necessarily between state and
federal government the ACA case which is the Burwell case. I just one
critical motion against the administration’s best efforts the administration made clear it had to win on standing in fact it lost. And so we are on our way, very likely, to the
D.C. circuit, at the request of the White House. My second disclaimer
by the way is that two of us have flights at 1:45, by coincidence, going to
Oklahoma City and so if I have to run out, it’s not because of anything my co-panelists said, or any deep injury that I have suffered. I’m gonna be
talking in many ways about a subject that amplifies our last two speakers that
deals with identity in federalism. We’ve heard, in this conference, some really insightful thoughts about the foundations of federalism, the function
of federalism, its role within our constitutional system. We’ve had a debate
about core figures like, James Madison and how he really fell about
federalism. I’m gonna put that behind us for a bit. But I want to say that
federalism is often discussed in terms of standard metaphors you know, that
federalism’s purpose is to have a garden or 50 gardens that allow for state
experimentation. They allow all these gardens to bloom in a federal system. This idea that we have a better system by state experimentation runs very deeply within the rationale for
federalism. I view federalism differently, and it ties directly to this identification
issue that we’re touching upon. To me federalism, like the separation of powers,
is primarily a protection of liberty. I believe if you look at many of the
passages of discussion of the founders you see this concern about the
concentration of power in the United States. That concern is amplified when
discussing about the separation of powers but it’s also there for
federalism. Indeed, many of the same terms, images come forth in these discussions. This idea of having multiple factions, multiple groups expanding the dialogue, having this mix
of different views and different constituencies. They’re equally present in both separation of powers and in federalism. And, of course, when you see Federalist 51 you
see the discussion of Madison of how we have a system that is quote first
divided between two distinct governments and says, hence a double security arises
to the rights of the people. The different governments will control each
other and at the same time each will be controlled by itself. Of course preceding
the Constitution the Articles of Confederation embraced a more robust
idea of sovereignty for the United States. As was noted yesterday, in some ways we shattered concepts of sovereignty in the United States. We changed it. We made it our own, which is not something unheard of within our system. We didn’t necessarily come up with things first, like the
concept of separation of powers. I recently had the pleasure of speaking at
the 800th anniversary of the Magna Carta and the Lord Chief Justice spoke before me and noted that separation of powers was doing quite well before we showed up. My
point was simply that may be true, you could certainly look to Montesquieu, and
just like most things we made it better. So, you know, many of these same
concepts come up and we change court notions. But of course in the Tenth Amendment, there’s an aspect of the Tenth Amendment that is often lost. We have to talk about all rights being reserved to the
States but we also leave off those last four words, which is “or to the people.” I think that, as we discussed yesterday, when you talk about sovereignty in the change
from the Articles of Confederation to the constitutional system we have today.
I think you see more of a discussion of the sovereignty of the people. There a notion
that people are in fact the reserved power of the United States. That is where it rests. And to me, federalism reflects that sovereignty,
that notion, in the people. States are the vehicles by which the people exercise that sovereignty, that power. Indeed because so many of those reserved
rights dealt with the majority of power, majority of functions of the government, it
meant that in the people rested the power that govern most of our lives. And so, you know these concepts of what Madison once referred to as extending the sphere or this idea of broadening constituency. This transformative dialogue that we have in United States is closely connected to this role of the citizen. Now to me federalism has this great benefit that I
believe implied within it, particularly this notion of a
reserve powers, is this idea that rights and liberties are safest
when their held closest to us. That’s the idea of state and local authority. That
these are rights that are held closest to us. It’s also true that voices, this plural cacophony of voices, is loudest when it is closest. As you hear voices closer and louder in this system. Of course
Madison asked the consolidation of the early federal system, what happened to
states where abolished? He said that there would be what he referred to as partial expressions of the public mind. This had lent by Universal silent and insensibility, leaving the whole government to that self direct course, which it
must be owned, is the natural propensity of every government. It’s a beautiful expression. Partial expressions of the public mind. This notion that we can connect state power in federalism to the expression of the public mind and it’s in the public mind that is the ultimate
expression of sovereignty in the United States. This was in fact picked up by
other founders Jefferson referred to giving to every citizen personally a
part of the administration of public affairs. This idea of investing citizens
with this power. Jefferson talked about how important it was to give citizens that direct
role in the offices nearest and most interesting to them. What does that mean? Why is it so essential? You can look at de Tocqueville, which was mentioned earlier about his administrative decentralization. He
connects this idea of having this local direct role of citizens as a
method of combating tyranny. He views it as a protection of Liberty. He talks about
instilling in citizens quote, “a habit and taste for government. That comes from having
that direct role.” Now much has changed in our system to be sure and some of those
changes may have resulted in this decoupling of citizens from their own
governance. The 16th and 17th Amendments, that I discussed yesterday, had tremendous impact upon federalism. The direct election of senators. The couple of the role of the state legislature, the power State’s legislature, over one of the houses of Congress. Income tax gave the federal government its ability to create its own revenue stream streams and one that has had a tremendous impact. But the fact is we can’t blame those structural changes, because the fact is that we’ve changed. We’ve changed. In some ways we become virtual citizens. It’s true that we have identification, as Earnie points out, remaining with our states. Most of us are not going to get Ohio tattoos. People in
Delaware have it easy, I suppose, when it comes to tattoos. But we do have some
identification but we are increasingly detatched. As was mentioned, forty-one
percent of people don’t live in the state in which they are born. But more importantly, we have less interaction with each other. We live in a virtual space, which is something I’ve
been spending a lot of time working on. The average user of social media spends just
under two hours per day on social platforms. at 25%, 28% of all online activity is on social media. For younger people like yourselves it’s particularly pronounced between 16 and
24 years you spent 27 hours a week on the internet. Since 2005 we’ve doubled the amount of time from 10 hours and 24 minutes to 27 hours and 36 minutes. My students have more
interaction often with someone in Beijing than they do Boise. My son’s best friend I just found out last week is some german girl he’s learning German and I found out that he has a
well-developed relationship with this with this girl which concerned me a
great deal, until he assured me it was entirely intellectual and if you can’t believe
the 17 year old boy, can you believe. But the fact is that there is a difference that
is we we become detached citizens, we’ve become distracted citizens and we’ve become disinterested citizens. You know when we talk about Franklin’s famous statements and Miss Powell when she came up and said what have you wrought? And he said it’s a republic madam, if you
can keep it. The question is that too simple? Have we just changed and so has the
republic itself. Alan Tarr’s wonderful work on this,
and you know, he he talks about these three elements of identification. The strong
group loyalty, the shared history, the gratitude for benefits received. The question is does
that create enough identification? Where do we look for examples of that type of identification? It did occur to me last night that there is such a thing. And that is the Chicago Cubs. Now I
say this only because it guarantees that Jack Rakove won’t attack me because he’s a Cubs fan as well. By the way so is Tarr. So we have you surrounded. Now the thing is, it’s true that we can really
make up you know, gratitude to benefits received until, well, last night. But yeah. I actually was thinking yesterday as I was enjoying the Cubs game with one of
your students who took me up Sterling in the library as I raced from the panel to
see the final game against the Cardinals. And what’s interesting is that we do
have the type of identification that we once had as states. I’m example I’ve lived down south most my life. Particularly in Virginia, which I love, but if you ask who I am, I’m going to say I’m a Chicagoan. Even though I haven’t lived there most of my life. Not only that, my children, we have a Cubs banner, a Bears banner, Blackhawk banner all over our house in Virginia, and my children, once my teacher came up to me and said I didn’t know the Mattie, your youngest, was born in Chicago. I said well she wasn’t, she was born in Virginia. All of my children are Virginians. She says, well, she keeps on writing down that she’s from from Chicago. And it turns out that all my kids are writing down that they’re from Chicago. But that close identification with a city, with a town which is where does that come from. Why for example, Cubs? You know we we meet at conferences as a common element of
identification. The fact is that there is something to the experiential aspect of being particularly, a Cubs fan, of the long denial of any sense of positive reinforcement. But the strong
identification with this, and the Cubs are particularly that case because it’s not
just a baseball team. We’re the loveable losers. I tell my kids it’s character building to be a Cubs fan. Anyone can be a Yankees or a Cardinals fan. You’ve got to be a tough SOB to be a Cubs fan.
gotta be a tough sob to be a Cubs fan You have to be able to sustain yourself on nothing, okay except disappointment. But it holds doesn’t it? that sense of identification. How do we
become a Cubs nation? How do we become, how do we reconnect ourselves? with our local government? The concern that I have here is that because we are disconnected
increasingly, from the areas in which we live. Because we’re disconnected from our local government, we are disconnecting the key protection of liberty. As Madison said,
that in the absence of that connection what rises is this power of a central government. Power is like gas in an enclosed
space. If you open up space it fills it evenly. That’s what has happened. So how
do we reconnect, locally? Well we can do a few things to reattach ourselves. One is we have to stop the hypocrisy. If you want to believe in states rights
believe in them, all the way. You can’t believe in states rights and say some states shouldn’t be
able to legalize marijuana or some states shouldn’t be able to have assisted suicide. It’s not about how you feel, you want 50 gardens to grow, allow some of them to grow differently from what you would prefer. But don’t be a hypocrite. You gotta go straight down the line. The first thing we
have to do is clean up our own house and to say we really believe in federalism.
We’re not going to cut any corners. Stop the hypocrisy, stop the simplicity. Don’t be simplistic about federalism. Kim Davis is wrong might be a nice lady she’s wrong. She
wants to use a public office to impose her views on people, that’s wrong. If you
believe in religious freedom you want your government be neutral so you don’t
have to roll the dice whether the next clerk is going to be an atheist or a
Baptist or whatever. You want neutrality. Don’t be simplistic. When we talk about
states rights it is not Kim Davis, she’s not states rights. States’ rights is our
ability to write are what we do so also reflecting the fact that we’re Americans
and that brings with it protections and rights afforded to everyone. So stop the hypocrisy, stop the simplicity and finally stopped
the complicity. Don’t be complicit in your own destruction. Yesterday my
understanding the republican conference turned down the federal Medicaid Law by a vote of 57 to 6 or something along those lines. You have to say no to federal money. And then, once we have our house in order, we can start to make serious changes. And one of them is to
stop the federal government’s habit of raising more money than it needs to
operate, entirely so it can give money back to the states with conditions. Additional
federal funding is the great scourge of federalism. This notion that the federal government
should take in huge amounts of money for the sole purpose of giving it back to
the states and requiring the states to comply with federal policy is a
remarkably bad idea. And we can stop that we can actually have legislation that
would curtail this practice of additional spending which grows every single year.
And if we clean up our own house, if we stop the hypocrisy and stop the
simplicity and develop…we could that. Because problems that many people say they like federalism then turn around and they put more conditions on it. Not just
Democrats, Republicans do it, you know, because they have something that they
want states to do. So is it possible for us to be reattached to our state and local governments? Yes there is, just look at this. Sometimes you have to wait a long time. Federalism, we’ve waited a long time but there still is within that an identification that many of us feel, many people in this
room feel, an understanding that rights are safest when held closest, voices
are loudest when they’re nearest. These basic ideas of the center of gravity of our government. So I would suggest to you simply, I think
that we can become reattached and federalism can return to it’s critical role in limiting government and allowing the greatest expression of viewpoints and different voices. But more importantly
the protection of liberty. Thank you very much.

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