With Federalism, Losing Is Always An Option

The vertical distribution of powers allows partisans to accept defeat more willingly at the national level because there are other arenas of political contest at the local and state level.

Five-year-old James Tufts responds to being defeated for re-election in 2014 as the symbolic Mayor of Dorset.

"What do we want from federalism?" This question, posed by Martin Diamond in his 1973 essay "The Ends of Federalism," still looms over American politics today. On Constitution Day, as the country stumbles into a presidential bare-knuckle fight that threatens to only sharpen the tribal lines, to further augment the Great Political Schism, and generally accelerate the aging process of the normal human voter, the question is worth re-raising. What do we want from America’s Federal Constitution? 

Among other Constitutional goods, American Federalism is important because it functions as an outlet for political anxiety—the kind of anxiety that can overwhelm a partisan (and who can not be partisan in this election?) when they consider the prospect of losing a national election. 

True, American Framers did not choose federalism for this reason, or this reason only. American federalism grew out of a desire, primarily, to protect and enhance political liberty. A diffusion of powers would answer two “contrary ends” (in Diamond’s phrase). One of those ends is to avoid consolidation and concentration of powers in one unitary state. Another end is to avoid the disorders of the old republics, who—as Montesquieu tells us—were capable of great things but also incapable of securing themselves against external enemies. Small, autonomous, and homogenous states might still inspire us today, as they did the “oracle” of political wisdom, whose work was “always consulted.” But, as Montesquieu also noted, Greek democracies were also doomed to fail. They “recognized no other force to sustain [them] than virtue.”

Today, it is appropriate to reflect on the reasons for American federalism, new and old. A new reason to value federalism, and one gaining more prominence, is that it serves as a pressure relief, a safety valve, in polarized times. In theory, the vertical distribution of powers allows partisans to accept defeat more willingly at the national level, for those same partisans will have an opportunity for redemption in other arenas at the state and local level. There is consolation in a system of reserved powers, which allows citizens to remain engaged in the shaping of the laws which shape their lives. To put it most simply, in America’s Federal Constitution, losing is always an option.

Losing is less comforting in a centralized, unitary state. Almost by definition, the stakes of losing a national election in a unitary state are very high. It’s for all the marbles. There are ways to offset this disadvantage, of course, and many unitary states do. But in large and increasingly diverse countries like the United States, it is vital to provide multiple avenues for political participation, influence, and, yes, seeking justice.

At its best, American federalism provides constitutionally protected sites for disagreement, diversity, divergence, and resistance. In a balanced federal system, losing one national election is only a setback, not the entire game. A loss in one presidential race—in a genuinely balanced federal system—will not feel, as it may today, like political judgment day, when the fate of either side, either faction, is finally determined in some spiritually permanent way.

For partisans in a balanced federal arrangement, losing the executive, Congress, or both still hurts. But in a healthy federal polity, there is always another shot. There is always another chance to advance one's interests—at the state level, or in state courts, or in some circumstances, closer to home at the local level. Federalism, rightly understood, makes politics possible in the four years between national elections. There are no groups “on top,” at least not permanently.  As Daniel Elazar pointed out decades ago, Constitutional federalism is a matrix of powers and authorities, not a pyramid. 

In short, the average person can go about their business as usual because "tomorrow is another day."

Now, let’s consider the other side. I am aware that the Elazarean matrix will sound impractical to some, perhaps native to others. Many people will deny that American federalism lends itself to such a vision. The classical Aristotelian ideal of citizenship, where partisans take turns virtuously in ruling for the common good—and then accepting being ruled in turn—has always been more of an aspirational goal in American political thought and practice. Power-sharing is a nice concept, but, in practice, the states have not always been the source of what Montesquieu would call "moderate government." 

Today, some of the top scholars of American federalism believe that the states are the engines of inequality and faction, not the solution to them. As federalism scholar Don Kettl has argued in his book The Divided States of America, state-level inequality is "fueling polarization." Kettl and other critics say there is a profound irony in this. As Kettl puts it sharply, "The great invention that made it possible for states to become united has ultimately become a sharp instrument for driving them apart."

Kettl is not wrong, and there are plenty of other justifiable responses to the “Pressure Relief” theory of American federalism. 

Besides all this, partisans are probably quite justified in their concerns about drawing back from the lure of national power. Is now the right time to draw back from the national arena—to pursue some overly theorized ideal of balanced federalism? After all, the 2024 election is a pivotal moment in American (and perhaps even world) history. 72% of Democrats and 61% of Republicans say that the outcome of the 2024 presidential election will be "extremely important" for the future of democracy. We are told frequently that democracy itself is on the ballot.

These are fair objections. I can not answer them adequately here. And even on this hallowed day of Constitutional reverence, I do not argue that Americans are wrong to think of political power in Machiavellian terms. If one believes, as I do, that we live in a Machiavellian moment, it would be foolish to expect an appeal to moderation and constitutional structure to magically dislodge concerned and anxious citizens from focusing on national politics, on doing what needs to be done. There are two things that need to be done. Win. And stop the other side from winning. 

This short attempt at analysis is also not intended to undermine or speak down to those who see themselves as playing their role as righteous guardians of American liberty and American democratic freedom. No one is interested in a sermon, for everyone to just be nice. Challenging the rise of a president who each side perceives to be an existential threat to American values is not unimportant. It's only natural for Americans to confront this dangerous moment with determination.

Instead, I offer this essay as an invitation, or perhaps a reminder, that there is an alternative path, with no wishful thinking involved. No national unity, No Article V conventions, even. It lies only in a rehabilitation of constitutional structure. Despite the serious challenges to the "Pressure Relief" theory of federalism, posed by Kettl and others, we are not destined to—and we do not have to settle for—an embarrassing national bloodsport that drives friends, families, and communities apart. National politics in a large republic was never supposed to be pretty, but it does not have to be ugly. The appeal of "Pressure Relief" federalism is that it offers the hope that we won't have to suffer through the hyper-politicization of almost every part of our lives until the end of time. 

To which one might now object, “Another New Federalism”? 

By the 1980s, scholars had already become fatigued with the attempt to capture a one true “authentic” federalism. In 1984, one scholar came up with a list of more than 497 different definitions or "descriptors" of American federalism. 

This Constitution Day, I would argue for something more simple, and that is only this: an appreciation for the other reasons, not only political liberty, why the American framers adopted a federal system. The core of that reason is summarized in Federalist No. 10. It is “impracticable as [it] would be wise,” wrote Publius, to attempt to legislate our way to national harmony. “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.” 

Madison was arguing here against the temptation to remove the “causes of faction.” The “latent causes of faction” are “sown into the nature of man.” 

If Madison is right, we have one important answer to the question, “What do we want from federalism?” Federalism allows us to feel secure in the possibility that we will lose, and more, that when we lose, there are other options. Losing is always an option. 

Recovering this understanding of American federalism requires an exercise of both historical recovery and imagination. Constitution Day contributes to the first part, as President Truman put it, to “give special thought and consideration to [each individual’s] rights and responsibilities under our Constitution.” 

However, and at the same time, we need not stay attached to one particular fixed or static model of American federalism. Today,  the "true" American federalism, the federalism regime that we would pray for, to borrow from Aristotle, is not either strictly "dual" or completely "cooperative." The current federal compromise is a product of both "dual" and "cooperative" aspects, albeit with a heavy dose of un-Madisonian and arguably unAmerican coercion. We can imagine “new federalisms” because there is no perfect federal regime to be recovered. Our jumbled federalism cake is not becoming unbaked. 

Instead, it should be sufficient to think of how federalism, in this moment, might serve us best. A "Pressure Relief" approach to American federalism would not on its own solve the most pressing crises, many of which will, sadly, still be here with us in November 2028. As every reader of the Federalist Papers is aware, Madisonian political thought was unique for its time because it did not aim to eliminate the root causes of political evil. Madison’s Compound Republic was designed to control the effects of political evil without destroying liberty.

That's as good a place to start as any other.

Andy Scott Bibby is Associate Professor of History and Political Science at Utah Valley University. He also serves as Associate Director of the Center for Constitutional Studies and the Director of the Federalism Index Project.