03/15/2012 04:22 pm ET Updated May 15, 2012

A New Progressive Federalism

Progressives are deeply skeptical of federalism, and with good reason. States' rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think "federalism" is just a code word for letting racists be racist. Progressives also associate federalism--and its less prominent companion, localism, which simply means decentralization within a state--with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism's past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Progressives have long looked to the realm of rights to shield racial minorities and dissenters from unfriendly majorities. Iconic measures like the First and Fourteenth Amendments, the Civil Rights Act, and the Voting Rights Act all offer rights-based protections for minorities. But reliance on rights requires that racial minorities and dissenters look to the courts to shield them from the majority. If rights are the only protections afforded to racial minorities and dissenters, we risk treating both groups merely as what Stanford Law Professor Pam Karlan calls "objects of judicial solicitude rather than efficacious political actors in their own right."

Minority rule, by contrast, allows racial minorities and dissenters to act as efficacious political actors, just as members of the majority do. Think, for example, about where groups we would normally call a "minority" now actually constitute a majority: a mostly African-American city like Atlanta, a city such as San Francisco where the majority favors same-sex marriage, or a state like California or Texas where Latinos will soon be in the majority. In each of those cases, minority rule--where national minorities constitute local majorities--allows minorities to protect themselves rather than look to courts as their source of solace. It empowers racial minorities and dissenters not by shielding them from the majority, but by turning them into one.

Why should we care? We should care because the success of our democracy depends on two projects. The first is integration--ensuring that our fractious polity remains a polity. The second is dialogue--ensuring a healthy amount of debate and disagreement within our democracy. We have made progress on both fronts, but there is a great deal more work to do. Our social, political, and economic life still reflects racial divides. Our political system is immobilized; the issues that matter to everyday citizens are stuck in the frozen political tundra we call Washington. We have long looked to deeply rooted rights as tools for promoting equality and protecting dissent. But everyday politics can be just as important for pursuing these goals. We should look to minority rule, not just minority rights, as we build a better democracy.

An emphasis on minority rule isn't intended to denigrate the importance of minority rights. It is simply to insist that while rights are a necessary condition for equality, they may not be a sufficient one. Too often we assume in the context of race that rights alone will suffice, as if the path to equality moves straight from civic inclusion to full integration. We miss the possibility that there is an intermediary stage: empowerment. Such a strategy would be impossible without the hard-won battles of the civil rights movement. But it's possible to believe in, even revere, the work of that movement and still wonder whether rights, standing alone, will bring us to full equality. Civic inclusion was the hardest fight. But it turns out that discrimination is a protean monster and more resistant to change than one might think. We may require new, even unexpected tools to combat discrimination before we reach genuine integration.

Similarly, while the First Amendment has long been thought of as part of the bedrock of our democracy, it does not represent the only tool for furthering dialogue and nurturing dissent. Decentralization gives political outliers one of the most important powers a dissenter can enjoy--the power to force the majority to engage. It thus helps generate the deliberative froth needed to prevent national politics from becoming ossified or frozen by political elites uninterested in debating the hard questions that matter most to everyday voters.

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