How free should US states be? Americans have grown apart

The second thing was how corners of the nation can be not just unexplored but genuinely separate from the rest. Yes, America is a collection of states, and yes, the constitution does not refer to a single nation. But the lived experience of these facts is still somewhat alien to those of us who come from centralised nations, and frankly alien to some Americans, particularly on the Left, who have convinced themselves in recent decades that the Unum is more important than the pluribus.

It’s a fascinating fact that the very same people who value diversity seem not to be keen on it in an area of American life where it has traditionally existed: the relationship between the states and the central federal government. There is evidence aplenty that this diversity is growing to an extent that is unavoidable, occasionally dangerous, but in some ways positive.

To state the obvious first: American states are hugely different even in areas where the geography, the weather, the feel to a visiting Martian, might be similar. Vermont and New Hampshire are good examples. When I drove to see the headstones that day, we crossed from New Hampshire. There’s a sign, “Welcome to Vermont” — but there doesn’t have to be. The last thing you see on the New Hampshire side of the interstate is a Walmart and dozens of other large stores and car parks and accompanying tat.

Then just trees. This is because New Hampshire has no sales tax. So no big stores see the point of basing themselves on the Vermont side of the border where you have to pay a hefty 6% on anything you buy. In theory Vermonters have to declare stuff they bring home but, well, that’s in theory.

There is otherwise little difference between the states — both mainly trees perched on granite. But New Hampshire is a proto-libertarian paradise whose state motto is “Live Free or Die” (there used to be a Free State Project that tried to get libertarians to live there) and Vermont is one of the most taxed and regulated states in the Union whose most famous politician is a self-described socialist, Bernie Sanders.

Good luck to them both. That’s the kind of difference that all America can cope with, even celebrate. What happens now though if the differences become even wider and extend into areas of life that touch everyone?

One of the greatest political victories of recent times in America was that of the Federalist Society founded at Yale Law School in 1982. Its aim was “checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning” — in other words, upholding the legal concept of “originalism”. It set about its business of changing the judiciary and advancing its own members with gusto and guile and, via the Supreme Court justice picks of Donald Trump, has won its battle, indeed for a generation, won its war.

But coverage of the victory has concentrated on the wrong aspects of that core mission statement. Yes, originalism and individual liberty have consequences for law, but what of the first part, the checking of federal power?

This is what the court has begun to do and this is what might change America: de-nationalise it to an extent that goes far beyond the odd tax difference. The court may pull it apart or allow it to come apart gradually, but either way points to a new dispensation with some basic rights that all Americans can enjoy, but not nearly so many of them.

It’s worth stressing that the nationalisation of so much of American life was a bipartisan affair even if the Republicans rhetorically railed against it. The prominence of business regulatory issues on the GOP’s agenda meant that in some areas they were the keenest of federal regulators. Large companies tend to prefer comprehensive standards to a hodgepodge of local rules. But now of course the party has largely said goodbye to big business and howdy to the mom-and-pop world of low tax and local regulation. This change allows state control to be a genuine aim.

Individual states will be where the action is in this new world. The end of Roe v. Wade made no difference to the rights of women to have abortions in those states that want those rights protected. Indeed, in Kansas it may well have reinvigorated a local sense of the importance that abortion should remain legal. But what the court undoubtedly did is check federal power.

The idea of national progress — an idea that extends back to FDR and the New Deal — may well be coming to an end. American history is rightly seen as a series of broad periods of consensus with one party or tendency in overall power. The most recent is the post-war welfare state, which not only improved the lives of Americans in material ways but also gave them the right to a decent life. This helped to forge a sense of national destiny, as such rights must be for everyone or else they don’t count as rights. That is what is threatened now. How odd if Trump — flawed in so many ways — goes down in history as the bringer of such profound change.

Of course, there are dangers. “States’ rights” used to mean rights for racists: a rallying cry for the slave-owning South. Might it again? Might states that don’t care much for national democracy go their own way? In Arizona, the Republican candidates for Governor and Secretary of State are both refusing to commit to accepting potential defeat in the midterm elections next month. They seem to be suggesting that Arizona opts out of democracy as it is currently understood. In the event of them winning office, it is difficult to see Arizona accepting anything other than a Republican victory at the next presidential election.

Unilateral secession is not permitted of course under the post-Civil War settlement. But what about plain rogue-ness? The Supreme Court is about to hear a case that would give added power over federal elections to state legislatures and might encourage them to refuse to certify results they didn’t like. It’s freedom for states to be sure, but is it democracy?

None of those threats is easily dismissed. But nor should the potential upside be ignored in a situation where — as a matter of simply empirical fact — Americans have grown apart and done so with some enthusiasm on both sides. Some will see federalism as a rescue mechanism: a multi-speed America where California can press ahead on climate change, Florida can cut tax on business, some states can decriminalise marijuana and some not. In the battle over trans rights some might favour natal females, perhaps in girl’s sport, and some might back the rights of trans women. Choices, choices, choices. Above all this becomes an America where you might want to do something, ban something, enforce something, but in my state we tell you to sling your hook. And the Supreme Court backs me.

America is huge. You can get a U-Haul truck and move. Millions do. You can also write home from where you have gone and tell folks how much better things are where you live. If you are convincing, they may press for change where they are too.

In 1968, Vermont became the first state in the continental USA to ban advertising billboards. You need a clear view of the trees, they decided. Some thought it was the beginning of communism, and would soon beenforced nationwide. In the end a couple of other tree-filled states joined in, but most of America is still a billboard heaven.

The point is this: you have no right to billboard-free life in America. But you do have a right to live in a state that bans them. If you feel strongly about universal billboard rights you are going to hate this: but you might have to live with it, and in time you’ll settle down.

The midterm elections next month will lead — via Democratic Party losses in the House and possibly the Senate — to more talk of the end of American democracy. Election deniers will be on the march. Yet although America is indeed troubled, there are still options short of conflict. Perhaps that’s the way to see the new federalism: as balm, in troubled times.

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Justin Webb presents the Americast podcast and Today on Radio Four. His Panorama documentary “Trump the Sequel”, is available now on  Iplayer

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