“[O]ne familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of ‘Our Federalism.’ The concept does not mean blind deference to ‘States’ Rights’ any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, ‘Our Federalism,’ born in the early struggling days of our Union of States, occupies a highly important place in our Nation’s history and its future.”
— Justice Hugo Black, Younger v. Harris
Our Federalism. Our dear Federalism. Justice Black described this vaunted principle when deciding in 1971 that federal courts must show some restraint when interfering with state criminal prosecutions.
“Our Federalism,” though, only works when you work it. The many conservatives (myself included) who trumpet these principles in briefs, articles, and opinions ought to view this not simply as an academic matter but as a personal political responsibility as citizens.
For all the caterwauling on all sides about national politics and for all the petticoat-clutching over Our Federalism, it is shameful when those same folks can’t name a single member of their city council or school board or state supreme court. . . .
States, counties, and municipalities nationwide held elections this week. Though these trips to the polls may have lacked the political sex appeal of a presidential election or even a mid-term Congressional election, the decisions made by voters this past Tuesday will have real consequences for how their communities will be governed in the near future. Voter turnout for local elections remains low. Voter apathy remains high. Even among people who advocate strong federalist principles.
Meanwhile, the U.S. Supreme Court this week heard arguments in Sprint Communications Company v. Jacobs. Although not getting much press, the case asks the Court to consider the relationship between the federal and state governments.
In Sprint, the Court must contemplate the scope of Younger abstention, the doctrine first laid out in the case quoted above. Younger v. Harris requires federal courts to abstain from issuing injunctions against an ongoing state criminal prosecution. The Court has continued to apply this abstention doctrine to some civil proceedings. In Sprint, the Court will test some of the outer bounds of this doctrine.
Sexy or not, Sprint holds the potential to be important for our country’s definition of states’ rights. Yet what do states’ rights amount to if most citizens aren’t as involved in state governance as they are in federal matters? What good does it do to reserve much power to state and local governments if no one pays attention to the laws made and enforced at those levels?
Cases involving comity often bring out strong conservative voices arguing for the protection of Our Federalism. Are those same voices as loud when it comes to actual political involvement at the state and local levels?
Determining whether Republicans or Democrats — to say nothing of conservative- or liberal-leaning Independents or third-party voters — are more involved in state and local government is difficult. Sure, glancing at election results and the party affiliations of state and local office-holders provides some strong hints. That rough method, however, neglects the significance of voting districts. It neglects the reality of many communities where candidates routinely align themselves with the long-dominant political party, opting for the other side of the ballot if and only if the candidate’s views are fairly extreme in the opposite direction. This may be true in Texas, for example, where Republicans have for many years held majorities in both houses of the state legislature as well as virtually all of the statewide offices. In Texas, declaring oneself a Republican is viewed by some as merely a first step in becoming a viable candidate.
It also overlooks the fact that many municipal and county elections do not require candidates to publicly proclaim a party affiliation. While the candidates may in fact personally lean Democrat or Republican, they don’t run under the mantle of the Democratic or Republican party simply because the elections are considered non-partisan.
Simply counting red states and blue states may also be a misleading way to calculate local political involvement.
Take California, for example. In Sacramento, Democrats dominate state-level legislative politics. However, Republicans hold nearly half of the roughly 2,500 mayoral and city council seats in the state, according to figures compiled by GrassrootsLab, a Sacramento research and political data firm, and as reported by the Los Angeles Times. The Times explains:
In the last two statewide election cycles, when Californians voted true to partisan form — bucking the national GOP wave in 2010, siding strongly with Obama in 2012 — Republicans won more local contests than did Democrats, and not just in rural or such traditionally conservative-leaning areas as the Central Valley. More than 75 cities in California have a majority of Democratic voters but Republican-run city councils; the GOP has toeholds in such otherwise blue bastions as Alameda, Los Angeles and Santa Cruz counties.
This suggests that in California conservatives fare better with more local government and fare worse the closer to the national political stage conservative candidates get.
Valuing the power of state and local government is also not limited to simply voting or running for office. It is also about political engagement on the sub-national level. It is about being an informed citizen on matters outside the Beltway. It’s about knowing and caring about who is making what laws in your town, county, and state. Whether conservatives or liberals do this more, most of us could probably do a better job of it personally.
Regardless of whether the Supreme Court expands the application of Younger abstention in Sprint, the vitality of Our Federalism remains an ongoing concern. Part of that vitality depends not only on the deference that the federal government shows to states, but also what the people of those states choose to do with the deference given. Especially in a week of state and local elections, that is worth keeping mind. Because when we don’t fully participate in state and local government, Our Federalism can turn into Somebody Else’s Federalism overnight.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at firstname.lastname@example.org