(bright jingle) - [Narrator] The School of Civic and Economic Thought and Leadership presents The Civic Discourse Project, Sustaining American Political Order in History and Practice.

This week.

- So what I hope to show you all tonight is that federalism is not something that's just been for conservatives, but was once a key part of progressives' intellectual heritage.

And so if they chose, it could be again.

- [Narrator] The Civic Discourse Project is brought to you by Arizona State University's School of Civic and Economic thought and Leadership.

Now Sean Beienburg, an associate professor at Arizona State University, takes a closer look at progressive states' rights, the forgotten history of federalism.

- For the record, I use, and I know there's at least one person here who objects to my conflation of the term federalism and states' rights, but I use the two interchangeably here.

The basic architecture of our Constitution holds that the powers not delegated to the US by the Constitution nor prohibited by the states are left to the states under the 10th Amendment.

And this creates what in constitutional law is basically a presumption on behalf of the states' power.

That is to say, the states are presumed to have authority to regulate for health, welfare, safety, and morals.

Common law nerds know that this is called the police power.

That doesn't mean badge and a night stick, that that means basically polity politics, so sort of society, where governing authority lies.

And so the idea under the Constitution is that there is a presumption for the states to be able to do these kinds of things unless they are told no by the US Constitution or their own state constitution.

Conversely, there's a presumption of power against the federal government acting.

When the federal government does something, it must justify it under some piece of text in the Constitution.

This is most famously sort of described by Federalist 45 where Madison says, "The powers delegated by this Constitution to the federal government are few and defined.

Those which are with the states are numerous and indefinite."

So it is to say, under our Constitution, under the orthodox understanding of it, there was a presumption of power or the burden of proof was on you to show why a state couldn't do something and on the federal government to show why it could.

And I would actually argue that this is pretty core to the American constitutional order, and has since the beginning.

I think this is actually what the American Revolution was fundamentally about.

But this basic difference between a unitary or national government where all power is held by the central government and a federal one where there's political power that is dispersed within a multiplicity of sub-national governments.

Under a unitary government, the central national government holds presumptive authority to act unless you specifically told it no.

Conversely, under a federal government, the central government holds only limited, specifically delegated powers or enumerated powers that are given by whatever the relevant founding charter is.

I don't think I see any state legislators in here, but no matter how much they piss off Washington DC, Washington cannot just simply close that state capitol.

They are the sovereign entity with their own independent sovereignty.

Hopefully a bunch of you folks have somewhere or another acquired the the Arizona pocket constitutions that SCETL provides.

If you look at Article 2, Section 1 and 2 of those, there's political theory language.

So the US Constitution is very much just, here's what the powers are, here's who does what.

But the state constitutions, by virtue of being the major documents that sort of are understood to be sort of forming the political societies, often include a lot of political theory, Lockean stuff.

There's a section in Arizona that's actually from something that George Mason's cribbed from Machiavelli.

But you see in the state constitutions this discussion of their fundamental values.

And so a couple of 'em I have in here, again, similar language.

"The Commonwealth has the sole and exclusive right to govern themselves as a free, sovereign, independent state, retaining every power, jurisdiction, right not expressly delegated to the United States."

Second one, "The state maintains the sole, inherent, and exclusive right of governing and regulating the internal police."

This is from Massachusetts at the time of the founding.

This is from New Hampshire at the time of the founding.

Pennsylvania and Vermont.

These are not southern states.

We have this narrative that basically federalism was put into the US Constitution as a grudging concession to the southern states, akin to the 3/5 Clause and the Non-Importation Clause.

Arguably, in fact, if you look at this, there seemingly is an almost inverse correlation between a state's willing to sort of publicly commit to the importance of federalism and its commitment to slavery.

There's no South Carolina, there's no Georgia on that list, but all of the New England colonies that had a state constitution have that.

I think that's quite striking.

Federalism was once a unifying feature across both parties for most of American history.

Yes, one party often took a slightly more capacious understanding of federal power than the other.

But federalism was a basic assumption shared by pretty much everyone in American politics up to and through the New Deal.

For example, we sometimes have the narrative that the Whigs were the big party, the party of big government, and the Jacksonian Democrats were the party of small government.

And I suppose as a relative comparison, that's true.

But the disagreement between the Whigs and the Jacksonian Democrats, it should be emphasized how narrow that actually was.

That the Whigs understood the commerce power to allow the construction of infrastructure and basically the taxing and spending power to operate a bank that would help fund that infrastructure.

In terms of federalism, that was about it.

In the book, I go through a lot of discussion, folks like Daniel Webster, Henry Clay and others showing that they too despise the idea of a consolidated, presumptively powerful federal government.

In fact, they were quite mad at James Monroe, for example, for what they saw as selling that out.

So if you've ever wondered, how did John Tyler end up as the president of the country on a Whig ticket, it's because he had joined the Whigs because bafflingly enough, he thought the Jacksonian Democrats were too soft on states' rights.

And so he wanted to switch to the opposition party on those grounds, and the Whigs were fine doing that.

So that is to say, the Whigs were not fundamentally a big government party, anything remotely like what comes later.

And this remained the case during and after the Civil War.

The Civil War was not in fact about states' rights, nor were that era's Republicans fundamentally interested in consolidating power in the federal government.

The theoretical difficulties that they faced in trying to justify Reconstruction, and there were lots of them, those don't make sense if you think that the Civil War is about basically a consolidation of power in the national government.

If that were the case, they would just say, "We won.

We can do whatever we want."

But they didn't.

They worked really extensively to figure out ways to explain how they could run Reconstruction precisely because they still continued to think that federalism was such an essential part of the American constitutional order.

Yes, they wanted additional constraints on the federal government.

That meant the Bill of Rights would apply to the states under the privileges and immunities clause.

Yes, that meant there would be an independent federal backstop of due process.

Yes, that meant that the federal government would guarantee that there would be equality before the law on racial grounds to eliminate the Black codes that had been popping up.

But Thaddeus Stevens is not some random conservative Republican.

He was arguably the leading and most prominent of the radical Republicans.

And yet he was equally as committed to this as the rest of them.

And the radical Republicans could still believe in federalism, because for them, they credited federalism not just with resistance to the federal government's slavery policies in the 1840s and '50s, but precisely because they understood that federalism had been what allowed the states, inspired by the Declaration of Independence, to begin the movement toward abolition in the first place.

So I flagged this map here.

So this is at the time, basically of American independence, states with legal slavery in pink.

It's all of them.

Other than Vermont, which is sort of its own kind of thing at the time.

By 1804, federalism has meant that all of the northern states have been able to at least set up graduated abolition.

Again, they credit this with federalism.

No federalism, no abolition in the United States for possibly a much, much longer period.

So they don't view this as a contradiction to be for pro states' rights.

They do think that states need a few extra checks, which the original Constitution had already imposed on the states.

Article 1, Section 10 is a list of states' thou shalt nots.

So they wanted a longer list.

But they still remained fundamentally committed to federalism.

So I wanna revisit that myth with a particular Arizona flavor.

Federalism, again, the narrative we have is it is and always has been a fundamentally conservative doctrine.

But as I'm gonna try to argue, I think that it was the core value that pretty much all major political figures in America held in the years before the New Deal.

And it was the founding ideology of Arizona.

Show of hands, how many folks here have ever seen George Hunt's tomb?

It's the pyramid up by the zoo.

A whole bunch of you, all right.

George Hunt, I could tell you George Hunt stories all day long.

I really like the guy.

He's basically the George Washington of Arizona.

He's the guy who's the president at the Constitutional Convention, that draws it up.

He's the first chief executive.

But whereas we celebrate George Washington for having the good grace to stand down after two terms and retire gracefully, George Hunt claws his way, fights his way, and at one point sues his way back into office a total of seven times.

It gets so bad that the comedian Will Rogers very famously asks to be adopted by George Hunt.

And they say, "Why is that?"

He says, "Well, they're already establishing a hereditary governorship down there in Arizona, so I want in on that."

George Hunt is the first governor of Arizona.

He's a very left wing governor of what's regarded as a very left wing state.

And yet, look at this quotation I have here.

"The old idea of the right of a state to nullify federal laws is gone."

Okay, we're not doing nullification anymore.

"It does not follow that while the federal government is not supreme in its field, the states are not equally supreme in their own."

And then this gets striking, "Where new questions arise that obviously were not contemplated by the makers of the Constitution."

That is to say, we should use the original understanding of the Constitution as our starting point.

"Those should be handled either by the states according to the 10th Amendment, or granted to the federal government by proper constitutional amendment rather than strained legal decisions of the United States Supreme Court."

So there's three things that I think jump out in this quotation here.

One, again, is it basically a preference for, or an assumption that original understanding of the Constitution is how it ought to be interpreted.

Two, a strong deference for states' rights and the 10th Amendment.

Three, the idea that if you do need to change and add to federal power, you do that through the proper technique of a constitutional amendment through Article 5, not through squinting hard and torturing, spoilers, the Commerce Clause or something else into doing the work for you.

And so I wanna turn to who I think is the central figure in helping us to understand the progressive era, Elihu Root.

He's largely now forgotten, but he was a central political figure of his time.

He was the Secretary of War and State for Theodore Roosevelt.

He becomes the main opponent of the 17th Amendment.

He's the RNC chairman at the very famous 1912 Republican Convention where Roosevelt and his crew sort of storm off.

He's a lawyer who argues, the Supreme Court argues that prohibition is unconstitutional on states' rights ground.

Now, Root lays out what I think is perhaps the most comprehensive theory of thinking through what progressive federalism would look like.

So it's worth emphasizing, in terms of his policy preferences, he is unreservedly a progressive.

He favors a Hamiltonian view of economic policy where he wants the federal government to have regulations on a lot of things under the interstate commerce clause.

So he's on board with Theodore Roosevelt's Square Deal.

But he's also a constitutional fanatic who thinks that that's super important.

That's why he and William Howard Taft and Henry Cabot Lodge, basically Theodore Roosevelt's inner circle of his three closest allies, all turn on Roosevelt when they think that Roosevelt has betrayed the Constitution.

One of, I think, the most moving things that I've encountered in my research is William Howard Taft is having an interview with a journalist at some point, and he breaks out into tears.

Now, if you're a journalist, like, this is a pretty sweet scoop, right?

I've got the president melting down in tears in front of me.

And he asks, the journalist asks him, like, "Mr.

President, what's wrong?"

And Taft laments, he says, "Roosevelt was my best friend and now I have to spend my days tearing him down."

But he thought that he had to do that because he thought Roosevelt, again, not without reason, had basically turned his back on American constitutionalism and had to be stopped at all costs.

Now, in several of his writings, most prominently in his 1906 speech, Root lays out this vision of what progressive federalism ought to look like.

It's one of robust state power exercised on behalf of the public good, coupled with a much more limited understanding of federal power.

So Root thinks that as the economy gets more and more integrated, that even under a traditional understanding of the commerce clause, that just means the Feds will be able to do more.

If you want to have access to a national market and ship goods across state lines, you are allowed to therefore be regulated by the federal government under the interstate commerce clause.

So in other words, Root calls for a robust but limited federal government and an extremely active use of state power.

And this was a vision that I think is shared by many of the era's most important and prominent political figures, William Howard Taft, Charles Evans Hughes, who's an associate justice and later becomes a cabinet member and then becomes a Supreme Court justice after being governor of New York.

William Borah, one of the most powerful senators.

Al Smith, who is the Democratic governor of New York, and basically the leader of the Democratic Party in the 1920s.

For all of these figures, states' rights and a robust conception of the police powers is a central feature of their thinking, maybe even the central feature of American constitutionalism.

So what I wanna know is basically how representative is this idea?

When were state officials participating in constitutional debate, particularly in enforcing federalism?

And so to investigate this, I launched my project looking through state legislative journals, gubernatorial records, and state newspapers.

I spent three months, I spent three summers, excuse me, I wish it was only three months, three summers holed up in the archives, going through basically every state's legislative records between the 1880s and the 1940s to figure out what issues the states were talking about on federalism.

And so broadly speaking, here's what I found.

So first, again, I've alluded to this, but a political commitment to states' rights has not primarily been one of southern racial supremacy.

Obviously, our most historically significant indication of federalism and states' rights was in the Southern effort to resist the Reconstruction amendments and maintain Jim Crow.

But that case, while historically important, is unrepresentative, and I would argue it tells us more about racial politics than federalism.

As VO Key notes, he was probably one of the most prominent political scientists in the 20th century, pretty much the entire structure of Southern politics was organized to deny Blacks access to political power.

But as the cases in the book bear out, I think, such invocations are not the most representative.

And in fact, if you look at a wider scope of issues, it's the North with members of both parties who are actually more generally skeptical of federal power, and more comfortable raising states' rights claims on a whole bunch of different issues, economic, cultural, and constitutional.

Arguably, progressives, if not equally comfortable, were probably pretty close.

So my assumption is you folks are all well adjusted people who don't care about the minutiae of state legislative journals or State of the State addresses by governors.

So I'm gonna do a very brief overview of these cases as a sort of menu, highlighting some of the big players and stakes, maybe deflating a few myths that folks have about political history.

So first, obviously if you look at the major cases in which the states are trying to contribute to constitutional debate and interpretation in the 19th and early 20th centuries is race.

Again, I don't think I need to belabor that.

It's pretty well established, pretty well researched.

So this was not a focus on my book.

We all know the South invoked federalism for race.

The second major case is Prohibition, but then there's a cluster of issues regarding largely economics, which is basically what this book is about, especially the questions of whether there's a so-called Liberty of Contract, which stopped the states from using their police powers to regulate things like hours or wages.

And then whether the federal government could operate a welfare state, albeit a small one.

I'll be mostly discussing the Sheppard-Towner Maternity Act and the Liberty of Contract.

I'm gonna start with the Liberty of Contract.

So in the populist and progressive eras, there are left wing, very left wing legislators and governors who are proposing various economic policies in the wake of economic consolidation and integration.

They're basically thinking, "The economy is changing.

What do we do in our politics to make sure that it follows that?"

They jut up against a doctrine that the judiciary is developing between, say, the 1880s and the 1940s, nominally rooted in the due process clause of the 14th Amendment.

Becomes to be basically understood as a Liberty of Contract, which is some kind of presumption on behalf of judicially enforceable economic liberty attached to being a free citizen.

So the argument that the courts are making is effectively to be a free citizen politically requires one to be basically a free citizen in terms of one's contract-making.

How weak or strong that presumption is the judges vary on a little.

Even though seemingly the phrase Liberty of Contract, Control + F that, it's not in the US Constitution.

It seems like it's much more tenuously connected than say, freedom of speech, arms, religion, and so on.

But the judges of this era start creating spheres of regulation where the states have to justify the necessity of regulations and justify that to the court's satisfaction.

Unsurprisingly, this generates a good deal of resistance to the state level progressives, governors, and state legislatures who are invoking originalism and states' rights to say that these national justices have no legitimate authority in which to interfere with the states passing these kinds of economic laws.

They say it's a violation of both separation of powers and federalism.

And if a state wants to regulate the changing economy, it probably can under the 10th Amendment.

And so this era's jurisprudence comes to be called the Lochner era after the most famous case from that time when the court blocked the state law on maximum hours for bankers.

I think Lochner is wildly overrated in terms of its influence and importance, but that's what the law professors all call it.

And in fact, the states really don't follow Lochner.

If you look through the state legislative records, they continue to debate and pass the kinds of laws that Lochner seemingly had forbidden, maximum hours and other kinds of regulations along those lines.

And the Supreme Court seems to bless this, such that folks like William Howard Taft, who by this point is on the Supreme Court, come to believe that the Lochner case has in fact been overruled.

In 1923, though, the Supreme Court in the Adkins case that's on the bottom brings us back with a vengeance.

And they basically strike down a minimum wage law that's been passed in DC by Congress.

William Howard Taft and Oliver Wendell Holmes are furious.

And Taft writes a very rare dissent.

He only writes a couple of them in his entire career.

But he's so mad about them bringing Lochner back with Adkins that this is one of the few times he does.

Holmes, who's I think unanimously regarded as sort of the quintessential progressive justice of this era, offers a textualist critique.

"Liberty of Contract might be a good system, might be one that I believe in economically, but it is not in the text of the Constitution, and therefore is not judicially enforceable."

And he echoes Harlan in some ways, John Marshall Harlan, who's the famous Plessy dissenter.

And they're arguing that the era's jurisprudence violates both separation of powers and federalism when the justices are assessing the reasonability of the law or how tight the fit is between the means and the ends, instead of whether it violates an explicit constitutional guarantee.

And strikingly, Louis Brandeis, who later becomes a Supreme Court justice, he and Felix Frankfurter actually start writing letters to each other debating how much of the 14th amendment needs to be straight up repealed in order to stop these conservative justices from imposing their policy views.

They're so mad about this.

Again, strikingly so is someone like Taft.

They eventually are pushing to try to get minimum wage laws overturned.

And so for technical reasons, in 1936, the Supreme Court maintains the Adkins case, which infuriates not just progressives but conservatives.

Because in the 1930s, conservatives are trying to fight back against Franklin Roosevelt by saying, "Look, our Constitution leaves most of the power with the states, very little in the hands of the feds."

And so in this case, when the Supreme Court is saying, "Yeah, but the states can't do this one either," you can see why not just progressives but conservatives are feeling sort of betrayed.

This is inconsistent with the text of the Constitution from their understanding, and it makes it a lot harder to defend federalism if it looks like in fact the states can't act.

And so finally in 1937, the Supreme Court gives the states their authority back to regulate this.

By that point, it's functionally meaningless, because by this point, the New Deal has pretty much reallocated most of this regulatory power to the federal government.

And Roosevelt is able to basically terminate progressive federalism largely through Supreme Court nominations, 'cause in the 1930s Congress authorizes President Roosevelt to create and enforce codes related to buying and selling goods.

And particularly, this gets applied to whether you can go and buy a chicken at a local poultry dealer.

And a family's local butcher says, "We wanna be able to basically sell chickens to folks.

It's no business of the feds if it's under interstate commerce."

And a 9-0 Supreme Court agrees.

Chief Justice Hughes, you can see the quote on here, but basically says, "Look, if we interpreted the Commerce Clause, otherwise it'd be the end of federalism."

But he's not the only one that takes that position.

So did Justice Cardozo and Lewis Brandeis, who again, who we think of as quintessential progressives.

In fact, Brandeis is so furious he calls the president's lawyers together and yells at all of them.

Now he's their hero.

This would be like Ruth Bader Ginsburg yelling at all the progressives in the Biden administration, right?

Go home, go back to the states.

You have no authority to do this here.

So what changes?

Well, some of my students are gonna enjoy this one here.

Wickard v Filburn is a Supreme Court case that I think in some ways puts the end of progressive federalism.

Initially, this guy is growing grains on his property and feeding them to his animals.

Doesn't sell it, doesn't leave his farm, so he says it's not interstate commerce.

It's gotta be both at the same time, and it's not either one of them.

So how can the federal government regulate this?

Well, they say, "Yes, but if everybody did something similar to this, in the aggregate somewhere that would macro affect interstate commerce, and therefore the federal government can regulate it."

I see some heads shaking.

If you don't like this case, I have bad news for you.

This is the anchor of almost everything that the federal government does today.

See Wickard v Filburn, see Wickard v Filburn, see Wickard v Filburn.

There's a parallel side on the spending power, but it ultimately comes from this.

Now, there's a limit that the courts developed later, and one that I think progressives today may be interested in reviving.

In 1995, the Supreme Court under William Rehnquist issues US v Lopez, in which the Supreme Court says basically even under Wickard, Wickard is still fundamentally about economics.

So we'll spot you the interstate part, we won't distinguish interstate and intrastate commerce anymore, that's fine.

But it has to fundamentally be about economics.

A bill about gun safety in a school is a good law.

It's a state law.

It's state police powers, health and safety.

The dissenting opinions, Breyer and Souter, I always like making a joke at them.

They basically say, "If Congress calls it interstate commerce, who are we to judge?"

To which I wonder, the Supreme Court?

Maybe that's your job, I don't know?

But Clarence Thomas goes a little farther.

He wants to have Wickard overturned.

I think progressives, probably that's too much of a lift.

Is there a future for progressive federalism?

I don't know.

Maybe.

There are reasons to think that conservatives are getting more and more comfortable with the use of federal power, I think is probably fair to say.

Scholars like Adrian Vermeule and others have basically argued conservatives should turn their back on their traditional view of federalism.

Maybe progressives will decide that that's a risk that they don't want to take anymore.

Perhaps progressives will be thinking like conservatives that maybe this is something we actually are confident that we won't always be in power.

Whereas before they've been able to say basically, heads we win, tails you lose.

Conversely, maybe conservatives will follow progressives and say, "This is a vestigial part of our constitution.

We don't do this anymore."

Or possibly both sides will come to a detente in a polarized world and say, "Maybe we don't want policies swinging back and forth so dramatically with the federal government able to do so much."

So this book and talk are ultimately works in political history, one that perhaps presented a different understanding of history than the conventional wisdom you've heard before.

But I hope it helps us not only better understand the past, but also think about how American citizens govern themselves today under our constitution.

As long as the US retains its constitutional government, our system leaves the powerful tool of federalism in any hands, good or ill, that would use it.

Thank you very much and I'm happy to take questions.

(audience applauding) (cheerful music) - Sean, I think you may have partially answered my question multiple times already, but I want to ask you for more.

You raised and answered the question, who or what killed progressive federalism?

And I wanted to ask you, why has it remained dead?

Why has it stayed dead?

- Why has it stayed dead?

So there's a couple of reasons.

So one is Roosevelt fundamentally convinces people that being a progressive means this, right?

Wickard v Filburn is a 9-0 opinion, which is striking.

It's completely opposite of the 9-0 opinion a few years before, 'cause Roosevelt's basically able to reappoint the entire court.

So progressive sort of self-identity of what our understanding of the Constitution is, becomes, I think, basically dependent on that.

You are not going to rise in Democratic or progressive political circles at this point, like, "You know what?

I'm with Clarence Thomas on federal power," right?

Like, it's just not gonna happen.

So it becomes part of their self-identity.

Strikingly, I've noticed like, progressives of my generation are more sympathetic to federalism than, say, the one above.

Because for those folks, the only times people were citing federalism often was like, southern racism, right?

It's the only time anybody's talking about federalism in the wake of the New Deal.

And so you literally do equate it with like, well, the only people who talk about this are the racists, so that's a bad thing, right?

And so I think as sort of that generational turnover happens, people will have sort of, again, a broader perspective.

You know, political science has found that one of the best predictors of your political views is what you think, like, in your teens and early 20s.

And so I think a lot of it's a cohort effect.

And I guess I would say the other main thing is to the extent that progressivism increasingly defines itself as animated by progressive views on say, social issues in a way that like, Franklin Roosevelt would find incomprehensible.

They want to have judicial enforcement of what they view as those core progressive civil liberties.

And so that's sort of the other side of that.

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