Opinion: Daily Journal

Liberals should rediscover federalism

For the second time in recent experience, and the fifth time in American history, a presidential candidate has been elected despite having failed to win a plurality of the nationwide vote.

Also for the second time in recent experience, partisans of the candidate who won the popular vote but not the presidency — Al Gore in 2000 and Hillary Clinton in 2016 — have responded by urging an end to the Electoral College system, which awards votes to presidential aspirants by state totals (or, in Nebraska and Maine, congressional district totals), rather than national ones.

I happen to believe the Electoral College continues to serve a valuable function. It compels campaigns to spend time and resources outside of the most populous states, while containing the controversies that inevitably flow from an extremely narrow margin of victory (there were lengthy recounts and legal disputes in Florida in 2000, rather than in many states).

But even if you think the Electoral College is an unfair relic of an outdated compromise, do you truly think that a supermajority of states will agree to a constitutional amendment to abolish it? Or do you truly think majorities of legislatures in less-populous states will agree to an extraconstitutional scheme to award electoral votes by nationwide ballot count, even though that will clearly weaken their states’ influence?

Bashing the Electoral College may be therapeutic for liberal Democrats disappointed with Clinton’s defeat. But if they really want to respond to the 2016 election in an effective way, they should rediscover the virtues of another fixture of America’s original constitutional order: federalism.

The same founders who invented the Electoral College also favored constraining the scope of the national government. While recognizing that national defense, standardization of certain rules and measures, and a few other tasks required a stronger central government than the original Articles of Confederation could produce, most of the delegates to the 1787 convention in Philadelphia did not seek to nationalize the bulk of public policymaking.

Instead, they took concrete steps to limit the powers of the national government they were creating. For example, in the new constitution they specifically listed the legitimate powers of Congress, rather than setting the standard that any task or program a majority of senators and representatives voted for at a point in time would be a legitimate use of federal authority.

Even after such precautions were included in the document, many Americans still thought the new constitution yielded too much power to the national government. Our own state of North Carolina declined to ratify the federal Constitution in 1788. In response, advocates and critics of the Constitution worked together to come up with additional limitations on government power, the Bill of Rights, which were then added to the federal Constitution by amendment. Two of these, the 9th and 10th amendments, dealt directly with questions of federalism. Taken together, they were meant to establish a default position — that federal powers are few and personal liberties are many.

Today, liberals often associate the concept of federalism with slavery, the Civil War, and the Jim Crow era. But to say states should retain more authority to make their own policy choices is not to say they should have supreme authority. Of course the federal government has the legitimate authority to safeguard individual rights against encroachment by oppressive states and localities (as subsequent amendments to the Constitution have made clear).

That doesn’t mean, however, that federal officials should decide whether and how to provide government programs in such areas as education, health care, and transportation. Let Californians make those calls for Californians, and North Carolinians make them for North Carolinians. Let people freely choose where to live based on the perceived costs and benefits of each state’s mix of taxes, expenditures, and regulations.

If liberals responded to the election of Donald Trump by seeking more authority for “blue” states to go their own ways, many conservatives would say yes to that deal. It would be far more productive than tilting at the Electoral College windmill.

John Hood is chairman of the John Locke Foundation and appears on the talk show “NC SPIN.” You can follow him @JohnHoodNC.