Recently, Tom Nichols — the dissident or lapsed conservative who is a key Never Trump figure — wrote a Bluesky thread on the importance of federalism. He focused on the longstanding Democratic demand (albeit a futile one) that the president be elected by a national popular vote. I’ve made the same argument, though I’ve never treated it as a big focus since abolishing the Electoral College is all but impossible. You’re never going to get small states to disempower themselves by agreeing to such a constitutional amendment. But Nichols made the argument that some form of the Electoral College is an essential component of American federalism and that federalism is one sheet anchor of our liberties, as we’re finding out today.
I’m not certain that the Electoral College is essential to federalism. One could certainly imagine another version of our current federal system in which the entire national population voted as a body to elect the president. (It’s hard to see why that in itself would require the relationship of national to state governments to be different.) Indeed, the framers of the U.S. Constitution considered just such a possibility.
It’s for reasons like this that I’ve always been generally skeptical of theories, especially the more elaborate ones, of federalism. Really what we call federalism was the product of a series of compromises between very dissimilar visions of the American republic. But this is talking about “compromises” in the too-smoothed-over sense of the word Americans often use to remember, to homogenize their past.
In their late 1780s guises, James Madison and Alexander Hamilton all but wanted to abolish the states. They knew that wasn’t possible. And at the Constitutional Convention it ended being even less possible then they had hoped. So they ended up negotiating a system in which the states were, as it were, caged and subordinated but by no means abolished. After the fact, when it came to selling the idea, they came up with various explanations of how this created just the right balance to protect liberty and all the rest. But these were always very much ex post facto justifications and rationales for part of their national state project which had very much come up short. The subsequent two and a half centuries of “federalism” discourse have usually been a matter of ascribing intention to something better seen as a stalemated tug-of-war on which time was called. (The 14th Amendment had a lot more to say on this question. But for the purposes of this conversation we can set that to the side.)
In any case, the federal system is what we have, regardless of how we got it. And embedded within that system is the fact that to a great degree the people (“citizens of the United States”, a creation of the 14th Amendment) act on and through the federal government via their states. That’s most obvious with the Senate and the Electoral College. But it’s the case with the House of Representatives too. House seats are apportioned by population both within and to states. They are made up of constituencies of only a single state. House districts never cross state lines even though de facto political communities often do. Their lines are drawn by political authorities within given states.
Nichols argues that the Electoral College is a kind of bulwark of our liberties because it is essential to federalism, and federalism is a bulwark of our liberties. As I noted above, I’m not sure I agree that the links in the chain are that tightly fastened, that federalism is undone without the Electoral College. But his argument is a salutary one, and on balance I agree with it. As I’ve argued several times this year, the separate and non-contiguous sovereignties of the states are a critical redoubt for liberty and civic democracy in our current national crisis. They constitute a kind of strategic depth for democratic self-government while the executive branch is under the control of a would-be despot.
Liberals have always been hesitant about federalism and for good reasons. Its main role in American history has been as a tool to defend slavery and slavery’s various descendent regimes. More recently, it’s been a tool of the right to claw back economic and health and safety regulations. Here the reason may be more intrinsic than with slavery. Historically, the state governments have always been more buyable. They attract less attention. For various reasons entrenched politico-economic elites are more powerful the further down the layers of government you go — more powerful at the state than the federal level, more powerful at the county level than the state, etc.
I don’t have a good answer to balancing the states as redoubts of civic democracy with the states as stalking horses of John Roberts-style laissez-faire capitalism. I suspect that circle can be squared. I also suspect the question is moot since sensible economic and health and safety regulation only come downstream of non-despotic, fascistic government. Most important, new times call for new thinking. The challenge we face today is less a weakened federal state than a rogue executive branch which threatens civic democracy itself. I don’t have any big new theory of federalism to propound. I’m not one for big theories of federalism, as noted above. But it is a critical line of defense against a lawless, rogue executive. We all know the language of states as “laboratories of democracy.” Perhaps so. They are just as much remote caves and high deserts where democracy can hide out while the forces of civic democracy are gathering for their counter-attack. I simply think we should think more expansively and creatively about the role of state power in the federal union and with new eyes. As Nichols himself notes, the anti-democratic character of the Electoral College can be significantly ameliorated simply by expanding the House of Representatives — something we should be doing for entirely separate reasons. The bigger you make the House, the less the Senate matters (and the less punch micro-states have) in the equation of Electoral College votes.