The Divided States of America: Why Federalism Doesn’t Work
by Donald F. Kettl
Princeton University Press, 2020

Donald Kettl’s The Divided States of America is a perfect example of the most unfortunate sort of book that grabs onto neglected truth and accentuates it by bringing it closer to its logical end – unfortunate in this case because that end is an unconstrained view of federal power.

Kettl recognizes that the US Constitution is a centralizing document biased in favor of the federal government, and was consequently amended to ensure ratification. Especially important to ratification, and Kettl’s thesis, is the Tenth Amendment, which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Sure, this reserves powers to the states not otherwise given to the federal government, but, as Kettle notes, it doesn’t preclude policymakers from reading “the Constitution as giving them the power that the Congress decided was theirs.” Therefore, “. . .neither federalism nor the Tenth Amendment were principles for defining roles and limiting government power. Rather, the amendment defined an arena for debate, action, and often dispute.”

Indeed, much would be different if Thomas Tucker of South Carolina had succeeded in including “expressly” in front of “delegated.” From the chucking out of the Articles of Confederation and the debating and writing of the Constitution onward, battles to delineate federalism have displayed a clear trend that Kettl documents through what he refers to as generations of American federalism. The language of the Tenth Amendment and the bias of the Constitution away from states meant the ever-growing importance of the federal government throughout these generations.

The First Generation was “based on the effort to define a separate sphere of state power through the Tenth Amendment” and was characterized by innovations such as federal grants.

Into the Second Generation, Kettle writes about the Progressive Era: “Never before in American history – and only rarely since – has there been such a bipartisan effort to make government bigger and broader in its role.”

On the Great Depression: “In very short order, the pressure to respond to the Depression upended the Tenth Amendment and radically reset the balance of power among America’s governments. . .the Depression for the first time made the federal government the prime mover of domestic policy in the country.”

And within the Third Generation we have the Great Society programs: “In very short order, the federal government took an even more powerful role at the top of the federal system, through both regulatory and financial strategies aimed squarely at reducing inequality in society."

What is most disturbing is that at almost every turn Kettl comes down firmly on the side of the ballooning government. That is clear in the book's beginning, with its high school description of the Articles of Confederation and the path to Constitutional ratification, but it’s reinforced by Kettl's entire framework. Time and time again, states' rights are associated (not incorrectly) with slavery, separate but equal, and barriers to imperative national action. Whereas federal sidestepping and intervention (a cynical reader might add bribery and blackmail) tackle “the country’s biggest problems” because “state and local government could not – or would not.”

In Kettl’s view, “most of the forces driving equality forward grew from Washington. Most of the forces dragging equality down grew from the states.” And because our federal system is untidy, its balance “has unquestionably moved toward federal dominance in policymaking but growing state dominance in policy administration,” which is the basis of his view that “The states are becoming more important, not less so. They are increasingly going their own way, and their policy differences are increasingly driving the country apart.”

This has reached its height in the Fourth Generation of federalism where states go their own way on infrastructure, education, environmental policy, and health care. “The result has been greater variability, more conflict, great complexity, and even more ferocious battles over fundamental American values.”

So, what will the fifth generation do? Kettl is not overly-detailed, but provides dimensions to a Hamiltonian solution: most importantly, using federal grants to focus on “inequality-busting initiatives" with emphasis on redistribution, enhanced federal administration of Medicaid, and finally a more prominent role for local governments. This is, to be sure, unsubstantial. But the thrust of what he wants can be found when he writes:

Federalism, American-style, is thus not only a strategy of government but also, and more important, a study in Americans’ historical unwillingness to surrender their authority and vision to a national government, even though that government has unquestionably gown in political power, financial leverage, and legal influence.

Surrender, therefore, is his clarion call.

Donald Kettle is quite right that federalism doesn’t work, but his laughable history, simplistic framework, and capacious view of the role of government brings him to where the Constitution has always been leading us: to a dominating federal government. He is well aware that this realignment of state and federal power has occurred “in ways that the authors of the Tenth Amendment never could have imagined,” and correct that it has been completely within its boundaries. The states have always been playing with loaded dice. And so it is fitting that we leave you with the words of Hamilton himself, the inspiration for Kettl’s plan, who, in debating the New Jersey Plan, said: “all federal governments are weak and distracted. To avoid the evils deducible from these observations, we must establish a general and national government, completely sovereign, and annihilate the State distinctions and State operations.”

—David Murphy holds a Masters of Finance from the University of Minnesota.