Politics & Policy

Splitting Up Big States: The Conservative Case

(Mike Blake/Reuters)
More federalism would be good; more federalism with smaller states would be even better.

The Democrats’ loss of seats in the Senate as they regained control of the House in the recent midterms has brought renewed attention to one of their perennial complaints regarding the upper chamber, where each state gets two senators regardless of population: Since less populous states are disproportionately red, Republican voters have more influence over the Senate than they would if the seats were allocated according to state population, the way House seats are.  (This argument always ignores the many less populous blue states, like Joe Biden’s Delaware and Bernie Sanders’ Vermont.)

One approach to this perceived need to “democratize” the Senate is to divide our larger states. Democratic strategist David Faris has called for dividing California into seven or eight states just to bring more Democrats to the Senate. Longtime civil-rights activist and law professor Burt Neuborne has proposed enabling legislation through which Congress would preapprove such state divisions.

“Fixing” the Senate is a bad reason to split up states. But there’s a good one too: It could promote federalism and conservative governance.

***

As has been pointed out here on NRO (see here and here), the Democrats’ complaint about the Senate fundamentally misunderstands the constitutional nature of our federal republic. The Senate represents not the people, but the states as fundamental constituents of the American federation.

In our federalist set-up, the states should be the primary agencies of government. Our configuration’s credo is Madison’s statement in The Federalist that the “powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

States thus serve many functions, but one of the most important is to bring government closer to the people. This makes democracy more vital in our enormous nation: Democratic government is pointless if there is no diversity of choices, and federalism provides that diversity. As Reihan Salam has pointed out, the goal of “federalism is not for states to serve as ‘laboratories of democracy,’ in which programs that work in Houston are eventually adopted across the country by dint of federal pressure. State governments wouldn’t serve as a kind of minor-league farm system for the big leagues in Washington, D.C. Rather, the goal would be for different states to offer different visions of the good life . . . to allow states and local governments to let their freak flags fly — to let San Francisco and Cambridge be as left-wing as they want to be, and to let Midland and Colorado Springs be as right-wing as they want to be.”

Furthermore, the United States has grown too big to govern any other way, something that conservatives frequently note when advocating giving more power to our existing states. Recently here at NRO, David French argued that

our current national government isn’t fit for the times in which we live . . . It’s incompatible with a population that is using the combination of geographic mobility and technological flexibility to wall itself off in increasingly cocooned and polarized communities. . . . The solution is staring us in the face. Ironically enough, 18th-century federalism is more compatible with the Information Age than 20th-century centralization. . . . To go forward, we must go back. Federalism’s time has come again.

But even if such a reversal occurred, would it achieve the federalist goal of moving government functions closer to the people? To make federalism truly effective, we must confront two fundamental obstacles created by the size of our states.

***

We are the third most populous nation on earth — and our states are the equivalent of nation-states. Leave aside the giants of California (more populous than Canada) and Texas (more populous than Australia). Florida has more residents than Taiwan and New York than Romania, and the next three (Pennsylvania, Illinois, and Ohio) each top Tunisia, Cuba, or Belgium. This continues as we move farther down the list. Michigan has more people than Sweden, Wisconsin than Denmark and Minnesota than Norway (we’ll not get into the argument the that that is because so many Norwegians moved to Minnesota). Even our least populous states rival established free-standing, fully functioning nations — Vermont has more people than Montenegro, and Wyoming than Luxembourg, and they both far exceed Iceland.

The largest American states do not bring government closer to the people. They just layer another nation-state on the people in addition to our massive national central government. How close to the people is a legislature such as the California state senate, where each member represents over 900,000 residents, compared with an average of just over 700,000 for each member of the U.S House of Representatives, not to mention the average of 30,000 constituents of each member of the House in the First Congress, or the average of just over 100,000 constituents for each member of the current British House of Commons?

And not only are these states mammoth in size, but they are increasingly polarized geographically. I’m not talking about political differences between them; I’m talking about political differences within them.  Every large state is as deeply divided internally as the nation as a whole and, as with the nation, this internal geographical polarization is growing rapidly.

In the 2016 presidential election, 61 percent of voters lived in counties which Clinton or Trump carried by at least 60 percent. The comparable figure in 2012 was 50 percent, and in 1992 it was only 39 percent. In 2016, fewer than 10 percent of counties were carried by less than a ten-point margin for the victor, compared with 1992, when over a third of counties were that competitive.

Critically, these “landslide” counties are not just concentrated within red states or blue states. All of our larger states contain both Republican and Democrat landslide counties. Inland areas of Democratic California have many Republican-landslide counties, and there are Democratic-landslide counties in the south of Republican Texas. San Francisco has no more similarity to Susanville than it does to Sioux Falls.

How is federalism to flower if the national stalemate is more or less replicated at the state level? In many states, for example, one-party Democratic cities dominate their states’ more politically diverse suburban and exurban areas, to the extent that these states hardly function as republics.

Residents of the eastern and southern parts of Washington and Oregon could accurately think of themselves as subjects of the Seattle and Portland empires respectively. In the Empire State itself, on a recent visit upstate this New York City resident was struck by the pervasiveness of signs and bumper stickers with the slogan “give us back our state.”

And the politics can as easily run the other way. Residents of southern Texas and southern Florida are undoubtedly as frustrated by their Republican state governments as are the citizens of downstate Illinois or upstate New York by their Democratic ones.

***

America’s growing geographic polarization has led to disturbing discussion of a second civil war. Articles in prestigious establishment publications by influential authors have speculated on the subject, including pieces in the New York Times (Thomas Friedman), Foreign Policy (veteran defense writer Thomas Ricks), and The New Yorker (longtime foreign correspondent Robin Wright). In November, journalist Sasha Issenberg published a long piece in New York magazine projecting a more peaceful separation under a title asking, “The country is hopelessly split. So why not make it official and break up?” Conventional wisdom does hold that such talk is just far-fetched speculation. But conventional wisdom also recently held that Hillary Clinton would be an unchallenged shoo-in for the Democratic nomination in 2016, and that Donald Trump would never be elected president.

Conventional wisdom also probably regards the idea of state division as far-fetched. The last time it happened was in 1863, when West Virginia seceded from Confederate Virginia to stay in the Union. However, the procedure is clearly provided for in the Constitution (approval by the existing state legislature and Congress) — and the new states would take over the existing government machinery, judiciary, and state legislators in their geography, so the only new expenses would be a governor, a state supreme court, and some agency heads.

Undoubtedly the first state division would be controversial. However, once it happened, it is likely that many others would follow as large states reorganized themselves to adjust to contemporary realities. And even where division did not occur or was geographically impractical, the real threat of it could induce state governments to devolve more power to local governments, the ideal depositories of government functions.

French argues that only “true federalism . . . can match American government to the larger religious, cultural, and political trends that are pulling Americans apart,” and that “it’s time to get busy decentralizing or get busy dividing.” But in order to make decentralization work, we may need to divide our states as well.

James W. Lucas is an attorney in New York City and the author of Are We the People? How We the People Can Take Charge of Our Constitution and Timely Renewed: Amendments to Restore the American Constitution.

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