The Framers reached a counterintuitive conclusion when authoring the Constitution: Citizens’ liberties are safer when two governments rule instead of one. This insight gave birth to our dual-sovereign system, under which the federal and state governments govern concurrently. This system prevents tyranny by diffusing power, allows states to serve as laboratories of democracy, and affords citizens greater civic participation. It is also under threat.
In this dual-sovereign system, states are independent actors. The federal government cannot compel states to make certain legislative decisions or force state officials to assist in federal law enforcement. When Congress tried compelling state law enforcement officers to conduct background checks under the Brady Act, the Supreme Court deemed it a violation of the dual-sovereign system. In another instance, Congress generally forbade state legislatures from legalizing sports betting. The Supreme Court’s response? “The Constitution gives Congress no such power.”
Although the federal government cannot coerce state governments into administering its programs, it can offer states financial incentives. Under Congress’s spending power, the federal government may attach conditions to states’ receipt of federal funds. For example, in 1984, Congress withheld five percent of federal highway funds otherwise available to states until they raised the drinking age to twenty-one, and the Supreme Court allowed it.
In other words, states cannot be forced to give up their independence from the federal government in our dual-sovereign system. But they can sell it.
If the states are to maintain their independent sovereignty, they must be able to turn down federal funds. Otherwise, the federal government can make administering its programs a condition of the funds, reducing the state’s independent sovereignty. As the states depend more on federal government funding, their ability to exercise their independent sovereign prerogatives decreases, and our dual-sovereign system suffers.
How can states turn down federal funds and keep their sovereign independence? By practicing fiscal discipline. States with healthy balance sheets can decline federal funds conditioned on the execution of undesirable programs. Conversely, states with troubled finances risk having federal programs imposed upon them in exchange for federal funding relief. One need not be a master negotiator to understand that capital infusions for financially troubled businesses come with more strings attached. The same is true for state governments.
Unfortunately, most states are financially troubled. Each state depends on the federal government for at least 20% of its general revenues, while federal funds account for nearly 50% of some states’ general revenues. As states cede their independence, the dual-sovereign system comes increasingly under threat. This should trouble us for multiple reasons.
First, dual sovereignty protects liberty. Dividing power between the state and federal governments prevents either from having absolute authority. They counterbalance each other, and by doing so, protect citizens’ liberties. As this balance fades, a powerful federal government is more capable of threatening individual liberty.
Second, dual sovereignty reduces partisan fervor. States need not adopt uniform policies when they retain their sovereignty. Blue states can adopt blue policies, and red states can adopt red ones. But in a system with a single federal sovereign, the whole country must adopt uniform policies. This creates winner-take-all federal elections and increases the partisan fervor in our politics.
Third, dual sovereignty allows for greater civic participation. State governments are closer to the people. If they are making more policy decisions, they can more easily account for citizens’ perspectives. Conversely, if most policy decisions are made in Washington, many Americans feel left out of the civic process.
Fourth, dual sovereignty prevents policy stagnation. Fifty state governments allow for fifty different policy solutions to a problem. As different ideas are tried in different states, the most effective policies emerge. But if the federal government creates uniform policies, there is no competition of ideas. Regardless of a policy’s effectiveness, it remains the status quo.
Dual sovereignty is part of the genius of our Constitution. But this system is weakened when the federal government can dictate terms to state governments in need of federal funds. States protect our dual-sovereign system by exercising fiscal discipline.