Democrats Should Reconsider The Role Of States

There Is More Government In Our System Than Just Washington, DC

As might be expected from an electoral defeat that is charitably described as “crushing”, the Democrats and their allies within corporate media are processing a tremendous amount of emotion—much of it raw, unfiltered anger.

They look at the post-election Congressional map, they look at Donald Trump’s seemingly improbable Presidential win, they look at the Senate being flipped to majority Republican, and they are well and truly baffled.

There are reasons for the bewilderment. Much of the final polling incorrectly put Harris ahead in the nationwide vote aggregates. That same polling showed her on top in at least two of the “battleground” states—and that was proven wrong. Virtually everything about how the Harris campaign, the Democrats and the corporate media thought the election would unfold was proven to be not just wrong, but disastrously wrong.

Perhaps it should not surprise us that Democrats are working through a cycle of recriminations and finger-pointing, playing a seemingly endless blame game.

Perhaps it should not surprise us that Democrats are putting much of the onus for their defeat on the voters themselves, claiming that Americans are too racist and too misogynistic to appreciate what a stellar campaign Kamala Harris ran.

Yet as Democrats—and Republicans—process the significance of the demographic shifts on display this election, it might behoove Democrats to revisit a core reality of Presidential elections in particular: Presidents are elected by the states, because at its Constitutional core the United States is a constitutional compact of states.

The states matter—and perhaps for Democrats they need to matter more than they do now.

To assess where the Democrats are at, both emotionally and intellectually, we must understand the degree of vitriol and condemnation Democrats are hurling at voters.

Harris supporters have been quick to blame sexism and misogyny among Trump voters.

That “working class coalition” didn’t even hear Kamala’s economic proposals. Their ears were plugged by the sexism that the media never did address—no, were responsible for much of it themselves—after Hillary’s loss.

Those who didn’t blame sexism called Trump voters “racist.”

The fact that he won the popular vote means most Americans don’t care, don’t mind, or are totally okay with his felony charges, his rape case, his vulgar behavior, his racist rhetoric, his billionaire tax cuts, and his ruthless authoritarian agenda to diminish the rights of women, migrants, and minorities, and abolish federal agencies, dismantle labor unions, and remove affordable healthcare.

Among the corporate media, the sentiments were no different.

Here are some examples of these reactions.

Susan Glasser, a writer for The New Yorker: “It [Trump’s election] is a disastrous revelation about what the United States really is, as opposed to the country that so many hoped that it could be.”

John Harwood, a journalist: “If you’re accustomed, as I am, to believing that a critical mass of Americans embraces the values of freedom, pluralism, and common sense, the choice voters made defies comprehension.”

Jill Filipovic, a feminist author and columnist: “In the coming days there’s gonna be a lot of opining about what the Harris campaign did wrong, but this election was not an indictment of Kamala Harris. It was an indictment of America.”

Peter Wehner, a fellow at the Trinity Forum: “This election was a CAT scan on the American people, and as difficult as it is to say, as hard as it is to name, what it revealed, at least in part, is a frightening affinity for a man of borderless corruption. Donald Trump is no longer an aberration; he is normative.”

Writers across the media landscape are simply gobsmacked that a person of such flawed character as corporate media has constantly reminded us that Trump is could be elected to the highest office in the land.

I have been dreading this for months. The United States has proved that it prefers an adjudicated rapist and womanizer to a woman. Now, I’m unsure I’ll ever see a woman president in my lifetime.

A clear consensus appears to have formed on the left: America voted for the wrong candidate, and for the wrong party.

We should note also that this consensus is not confined merely to anger and emotionally incontinent op-ed pieces within corporate media.

Democrat politicians, and in particular state governors, are planning a new Trump “resistance”, pledging to work to stymie President Trump’s agenda wherever they can.

Illinois Gov. JB Pritzker (D) promised that if “you come for my people, you come through me.”

In Massachusetts, Gov. Maura Healey (D) pledged her state’s law enforcement will not assist the Trump administration if it goes through with mass deportation plans.  

The messages, some of which come from possible 2028 contenders, harken back to the first Trump term, when big Democratic states repeatedly sparred with the White House. They also suggest a long campaign as ambitious Democrats tout their willingness to take on Trump at home and across the country.

California Governor Gavin Newsom is going so far as to call a special session of the California legislature in an effort to “Trump-proof” that state’s policies and politics.

California leaders have long seen themselves as a bulwark against right-wing extremism, and Mr. Newsom has positioned himself nationally as one of Mr. Trump’s loudest critics. They could soon be joined in legislative efforts by other Democratic-led states such as Washington, especially given the federal power that Republicans could wield next year if they win the House in addition to the Senate and the White House.

Mr. Newsom called Thursday for a legislative special session to begin in Sacramento on Dec. 2, several weeks before Mr. Trump takes office, “to safeguard California values and fundamental rights in the face of an incoming Trump administration,” according to the governor’s office. It will initially focus on funding state litigation around Trump administration actions that might impact civil liberties, reproductive rights, immigrant protections and climate action in the state.

The Democrats are at least making a dramatic show of drawing a line in the sand, pledging to make things as difficult as possible for Donald Trump to execute on his “Agenda 47” campaign promises.

Left unsaid, however, is something that arguably would strengthen the Democrats’ hand considerably: State autonomy and even state sovereignty is foundational to an understanding of the Constitutional order of things.

In modern politics, so much attention gets focused on Washington, DC, that state governments are often given scant attention by the media—unless or until a state such as California manages to capture media attention.

Yet the the text of the Constitution gives particular deference to the states, and even establishes citizenship as being a characteristic of belonging to a state polity, and not merely to the national polity. This is made clear when we look at Article 4 Section 2 of the Constitution:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Long before the passage of the 14th Amendment, the Constitution was deferential towards state law and state authority, and the original text of the Constitution makes that plain.

We are treated to a further establishment of the importance of states and state governments in the text of the 10th Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

While the language of the Tenth Amendment ultimately is tautologous, the Amendment itself largely functioning as a truism, it nevertheless establishes deference for state authority in Constitutional interpretation.

The Constitution makes it quite clear that the states are—and are intended to be—a vibrant and vital part of the compact by which this nation is governed.

Indeed, Gavin Newsom is venturing into the territory of a full-throated defense of “states rights” with his cries for “resistance” to Donald Trump’s yet-to-be established policies.

“The freedoms we hold dear in California are under attack — and we won’t sit idle,” Mr. Newsom said in a statement. “California has faced this challenge before, and we know how to respond.”

In a social media post, the governor said the state “will seek to work with the incoming president — but let there be no mistake, we intend to stand with states across our nation to defend our Constitution and uphold the rule of law.”

The irony, however, is that defending the powers and sovereignty of the individual states is something with which the Founding Fathers would have had little disagreement.

As James Madison argued in Federalist 45¹, the vision of the Constitutional Convention would be that the states would shoulder the bulk of “routine” governance.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.

Madison had previously argued in Federalist 44² that state governments were an important and necessary check on potential unconstitutional excesses of the federal government.

The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed.

Governor Newsom’s stance regarding California’s anticipated “resistance” to Donald Trump would have been quite understandable to James Madison in 1788.

A point of Constitutional order that frequently gets overlooked in most political commentary today is that the states are intended to be highly relevant political actors within the Constitutional framework.

Philosophically, this is expressed within the Constitution by Article 2’s assignation of establishing the means and methods of choosing electors for the Electoral College to the legislatures of the several states.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

That this was enshrined as a quintessentially state matter with little or no involvement by the federal government was reaffirmed in 2020’s Chiafolo decision handed down per curiam by the Supreme Court.

Justice Kagan's Accidentally Correct Opinion: The States Elect The President

While each state in the Union today utilizes a popular referendum vote to determine its particular slate of electors, any state is at liberty to utilize any other means for choosing a slate of Presidential electors.

Writing in Federalist 68³, Alexander Hamilton points out that by making the states—acting as sovereign entities through the operation of individual state legislatures—the cornerstone of the Electoral College process, the Constitution forces Presidential candidates to develop election themes and messages which will resonate with all parts of the country.

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says: "For forms of government let fools contest That which is best administered is best,'' yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration.

Democratic governors such as Gavin Newsom and Illinois’ JB Pritzker have, seemingly by accident, stumbled onto a relevant Constitutional truth, one that may help the Democrats chart a new course forward through the political wilderness: state governments matter.

State governments are an essential part of the checks and balances which define the Constitutional order. State governments are an essential part of the overall system of governance that colors the daily lives of American citizens.

Newsom and Pritzker, like all governors, will of course be constrained by the parameters of federal authority defined by the Constitution. Neither they nor their states’ respective legislatures can act with impunity wherever there is a contest between state and federal authority.

Yet perhaps the best way to curb not just the authoritarian excesses of the (Biden-)Harris Administration but the potential for such excesses in future administrations is for states to aggressively and zealously defend their own sovereignty. Perhaps the best way for Gavin Newsom to defend the Constitutional order of things is for him to zealously defend the rights and interests of Californians.

The advantage to Donald Trump should Newsom adopt such a stance is that it also creates opportunities to shrink the federal bureaucracy and, in the process, drain the DC swamp. Every issue, every government function which Newsom (or Pritzker or Murphy or Whitmer or Walz) wishes to be reserved to the states is a government function that does not need to be addressed by the federal bureaucracy. Every function Donald Trump can transfer out of the federal bureaucracy is an opportunity to reduct the size of that bureaucracy.

Donald Trump campaigned on removing federal regulations and streamlining an extremely bloated federal bureaucracy. Offloading that bureaucracy onto the states—to use, expand, or eliminate as each state sees fit—would be one way to permanently shrinkg the size of the federal government. Offloading that bureaucracy onto the states would give the Democrats the opportunity to prove their ideas of governance using people who are willing supporters of the Democrats’ platform.

Instead of either side attempting to impose a “one size fits all” governing philosophy, perhaps the way for Democrats and Republicans to achieve peace among themselves is for both sides to fully take charge of their respective states and govern those states the way the voters in each state which to be governed, without regard to what transpires in other states.

The Democrats are planning a “resistance” to stymie President Trump’s governing agenda. Instead of simply resisting, however, why should Democrats not lean into the agenda they wanted, by defending the rights of states to pursue their own agendas, without being constrained by the competing agendas of other states? Instead of being shackled by a federal government that is not moving in the direction they wish to go, why should they not lean into the Constitutional precept that the federal government is not the beginning, middle, and end of government in the United States?

The way for the states to remain united is for each state government to be free to chart its own course on everything except what the Constitution clearly says belongs to the federal government. The Democrats are uniquely positioned as the party of the current political minority to make that case for all the states.

1. Madison, J. The Avalon Project : Federalist No 45. 26 Jan. 1788, https://avalon.law.yale.edu/18th_century/fed45.asp.

2. Madison, J. The Avalon Project : Federalist No 44. 25 Jan. 1788, https://avalon.law.yale.edu/18th_century/fed44.asp.

3. Hamilton, A. The Avalon Project : Federalist No 68. 14 Mar. 1788, https://avalon.law.yale.edu/18th_century/fed68.asp.