IN his recently released book The Implosion of American Federalism, law professor Robert Nagel openly states what many conservatives have long suspected: American federalism is dead, or at least doomed to irrelevance. The era of small government is over, he writes, and the nanny state in full swing. Ours is a politics of nationalized intimacy, demagogic celebrity, and vapid policy prescriptions. Unlike many conservatives, however, Nagel does not look to the Supreme Court to salvage the situation. The Rehnquist Court's occasional states' rights rulings will not save the day. Indeed, the current justices are far more concerned with their institutional prestige than they are with local prerogatives.

Nagel's book-like much of his writing-is a condemnation of the hubris of the American legal community. He debunks the popular notion that judges, lawyers, and law professors deserve a starring role in the political process or pride of place among the nation's intellectual elite. He notes the damage "lawyerthink" has done to deliberative democracy, cultural norms, and above all, federalism. This critique, no doubt, will offend the legal cognoscenti, but there is another, more damning indictment in Implosion: Federalism is doomed from within. According to Nagel, Americans today lack the intellect, fortitude, and character to sustain a dual-sovereign system. As he explains, Americans "see their president as an intimate father figure, their Congress as a bottomless guarantor of material welfare, and their Supreme Court as a church-like arbiter of moral truths." The result? "Political dialogue at the state level tends to be bland, insubstantial, derivative, and unserious."

Nagel's indictment of Americans is persuasive. His recapitulation of our now-familiar character flaws is depressing but hard to dispute: We are rights-obsessed, atomistic, and intellectually indolent--despite signs of improvement since September 11. But his lament neglects a countervailing trend. What he underestimates, and what many discouraged friends of federalism have yet to discover, is a resilient strain in local politics that remains alive and kicking.

Moral federalism

When fundamental questions of right and wrong are thought to be at stake, as in issues such as abortion, euthanasia, affirmative action, and homosexual marriage, local voters are highly engaged. Plebiscitary democracy is on the rise across the nation, fueled, in no small way, by the growing use of initiatives, which bring measures directly to the voters, and referenda, which challenge legislative enactments. In the past decade, Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington have all passed medical-marijuana laws thanks to citizen initiatives. Likewise, citizens in Maine, California, Oregon, Washington, and Michigan have voted on assisted-suicide measures. Initiatives defining marriage in traditional terms have been passed in 33 states, and gay-rights measures have been voted on in six. While many of these initiatives reflect something other than grassroots activism (such as strategic legislative sponsorship or the encouragement of wealthy advocates), this activity, taken as a who le, debunks the notion of a lethargic, unmotivated citizenry lulled to sleep by parens patriae.

Voters, furthermore, are not the only actors energized by moral questions. State politicians are active, aggressive, and even defiant of federal standards when it comes to morals regulation. Nagel himself refers to the Pennsylvania legislature's late 1980s rebellion on the topic of abortion regulation. It might be noted that approximately 40 other states have chipped away at the Supreme Court-mandated abortion right through parental notification laws and bans on partial-birth abortion procedures. The Supreme Court has taken a liberal view of criminal-defendant rights as protected by the Fourth, Fifth, Sixth, and Eighth Amendments, while state legislators have devised victims-rights and mandatory-sentencing laws to counteract these requirements. Even racial preferences--that most national of moral issues--has prompted rebellion at the state house. Florida governor Jeb Bush and his elected cabinet voted to end affirmative action in college admissions in February 2000; similar rollbacks in California and Washing ton were also the products of citizen and legislative frustration.

Political scientist Christopher Mooney confirms this trend and provides an explanation. Gaps between federal moral norms and local community norms--however small--fire local politicians into corrective action. It is easy to understand why: The media enthusiastically covers stories about morally provocative rules; politicians, in turn, are loath to ignore incongruities between law and community opinion. State judges, too, are a part of this reactive process. Visitors to the Alabama Supreme Court are greeted by a granite sculpture of the Ten Commandments as they pass through the rotunda. Chief Justice Roy Moore, who takes a special pleasure in skirting First Amendment norms and tweaking the ACLU, explained shortly after the unveiling, "I'm the highest legal authority in the state, and I wanted it there. Doesn't it look great?"

In sum, federalism remains very relevant when it comes to regulation over moral issues. Citizens and state officials have maintained their independent spirit and relish a good, if lopsided, fight against federal standards. Before exploring this phenomenon, it is important to state what "morals politics" is and what it isn't. This kind of politics is fueled by immediate moral concerns, of course, but it may have other objectives. The rhetoric of virtue and vice may be put in service of utilitarian objectives and may reflect political spin more than actual policy content. Americans have little problem mixing pragmatic concerns with absolutist moral language. Will a state lottery pay for a new gym at the local elementary school? Will ridding a neighborhood of porn shops reduce crime and vagrancy in the area? In sum, morals politics may be important for reasons that are not directly moral.

Moral politics, old school

Regulation in the service of morality is nothing new on the American scene. It has been an integral part of our politics since the colonial era. In Democracy in America, Tocqueville considers the creative flair colonists had for penal law in seventeenth-century New England. "The chief care of the legislatures," he notes, "was the maintenance of orderly conduct and good morals in the community: They constantly invaded the domain of conscience, and there was scarcely a sin which was not subject to magisterial censure." This union between religion and politics was the essence of local regulation: Religion directed the customs of the community and thereby shaped the laws of the state. Tocqueville also notes that laws regulating morality were not the product of force. Nor were they grudgingly accepted. These laws, freely voted on, were the natural products of democratic enthusiasm.

New England Puritans saw local government as a vehicle for citizen improvement. Decentralized morality was appreciated elsewhere because it encouraged peaceful relations. Certain political issues, taxation most infamously, were controlled by central authority under the terms of Royal Charters. But after the 1689 Act of Toleration, religious issues, and therefore moral issues, were left almost entirely to local discretion. The absence of central instruction eliminated a point of tension between the colonists and their English overseers.

It also kept people who despised each other out of firing distance. Religious and moral decentralization encouraged strong regional identification. Catholics grouped in Maryland, Quakers grouped in Pennsylvania, and some colonies, like New Jersey and Rhode Island, attracted advocates of religious freedom. This regionalism, in turn, encouraged self-selection. A Baptist living in Massachusetts had little chance of changing the mores of his community; he could, however, find beliefs more to his liking in a neighboring colony. (Less pleasantly, he might be forced from his township into whatever colony would receive him.) Among the colonists, then, an early variant of live-and-let-live proved agreeable and effective: Obey God's moral laws however you see fit--just do so within your community's borders.

The benefits of keeping morality and religion localized-- such as improving the character of citizens and keeping the peace--were not lost on post-Revolutionary Americans. The delegates to the Constitutional Convention of 1787 wished to keep the federal government out of the messy business of civic virtue as much as possible. The Constitution leaves questions of day-to-day morals regulation--part of the local power of "police"--almost entirely to the states, letting them gauge the relative need for peace or virtue among their populations. This approach was hardly surprising. National control over issues like morality would have been, practically speaking, impossible at the time the Constitution was drafted. But the principles underlying the Founders' defense of federalism in this context are worth recapitulating.

As Madison explains in Federalist 56, there is a great diversity in the "progress of populations." Different citizens require different types of regulation. The new government had better things to do than educate itself about the different needs of Rhode Islanders and New Yorkers. Authority over internal affairs, as Hamilton quipped, would be "as troublesome as it would be nugatory."

More importantly, though, the decentralization of "minute" powers, like moral oversight, creates strong allegiances within communities. Debating and creating rules about subjects of immediate concern attaches citizens to their government and to each other. This, according to Hamilton in Federalist 17, is the "great cement" of political society. In his words, the "strong propensity of the human heart find(s) powerful auxiliaries in the objects of State regulation." Local administration--and, in particular, the administration of justice--is "the most powerful, most universal, and most attractive source of popular obedience and attachment." This kind of attachment counteracts the threat of tyranny, as citizens commonly guard against outside threats and protect each other's prerogatives. It requires vigilance and self-sacrifice, and promotes commitment to a shared good. Local control over morals, like local control in general, encourages republican virtue.

If anything, local morals legislation increased in the decades after the Founding. As the political scientist John Dinan has noted, state constitutional conventions in the eighteenth and nineteenth century were preoccupied with citizen improvement. Delegates seem to have taken no task more seriously than that of influencing their fellow citizens' behavior. While the role religion played in the inculcation of virtue was the subject of extensive debate--should officials take religious oaths? should states embrace the principle of anti-establishment?--the importance of morals regulation was never called into question. Provisions were enacted, with fanfare and frequency, restricting venal behavior such as gambling, drinking, and lotteries, and promoting virtuous action through the creation of public schools and through government subsidies to religious organizations.

At the legislative level, representatives were no less enthusiastic about their character-forming obligations. Criminal codes and statutes prohibited everything from the indecent (swearing, solicitation, card-playing) to the shocking (public nudity, bestiality, corpse-stealing). Some variants of immoral behavior, such as drunkenness and prostitution, were controlled through civic and common-law mechanisms such as licensing, inspection, and seizure. As for punishing these offenses, the same democratic spirit Tocqueville describes in colonial townships manifested itself in jury boxes. While jurors used their authority to let sympathetic defendants off the hook, there was generally little lenience for citizens who rebelled against common moral standards.

Two generalizations can be made about the local police powers to regulate morals as they developed throughout the nineteenth and early twentieth centuries. First, the necessity for such powers was based on a belief that humans are sinful, and that sin must be countered by legal sanction. Public force, in addition to private suasion, was necessary to restrain vicious and all-too-human tendencies. Second, it was based on the notion that a community good exists, and that this good must often supercede individual interests. As the state temperance and prohibition movements aptly demonstrate, earlier generations of Americans viewed individual rights in a broader perspective. While both the right of the imbiber and the right of the liquor manufacturer were seriously considered (particularly by state judges), citizens generally valued community standards above competing considerations.

Moral politics, new school

Although the term "moral police power" may seem unfamiliar, it remains a feature of American politics. Blue laws, sodomy laws, anti-swearing laws, and bigamy prohibitions remain on the books in many states or have only recently been rescinded. Contemporary versions of ancient vices are objects of enthusiastic regulation: Internet pornography, video poker, fetal research, international child labor. Religious beliefs continue to inform morals politics--Catholic bishops oppose legalized gambling in New York, to the chagrin of Governor Pataki--as do modern, secular notions of virtuous and nonvirtuous behavior. Local regulation of tobacco advertising is, for many crusaders, part of a larger attack against unclean and unhealthy living. Municipal speech codes and hate-crimes legislation reflect a contemporary intolerance for the scourges of sexism and racism.

It may be said, then, that a traditional moral police power persists, based on old and new understandings of immorality that attempt to restrain human behavior. In addition to this variant, however, there is a second strain of morals law, increasingly popular in American politics, that substitutes a "yes" for a no as its operating principle. While restraining morals law aims to control and channel, "liberating" moral law aims to empower and vindicate. Restraining law is judgmental; liberating law assumes that to judge itself is wicked. Individuals should be allowed to choose among behaviors however they see fit. Liberating law reflects the view that the highest human end is personal choice.

Liberating laws, in short, aim to liberate individuals and groups from behavioral restrictions. By protecting specific types of conduct once thought of as disgraceful, such as sodomy, getting high, and panhandling, these laws protect the rights of unpopular citizens--homosexuals, drug users, and vagrants. We do not tend to think of supporters of these laws as moral crusaders, but they are as moralistic as earlier generations of reformers. They defend freedom and choice as ends in themselves, and frequently, as absolute moral principles. Indeed, supporters of these laws are more ambitious than earlier reformers, for liberating law challenges long-accepted values and customs.

The influence of liberating morality has been powerful. An ordinance in New Jersey forbidding the Boy Scouts to discriminate based on sexual orientation, for example, has had negligible effects on homosexuals--outings of Eagle Scouts, one guesses, are rare--but its impact on the organization has been considerable. The Boy Scouts have suffered national embarrassment, funding withdrawals, and school-exclusion orders. Similarly, California's medical-marijuana law never had much impact, and the ordinance was soon blocked by federal injunction. But the law has encouraged serious debate about drug legalization at the state and national level, and it may ultimately lead to the reclassification of marijuana in the federal criminal code. The recent spat between John Ashcroft and the Attorney General of Oregon over the state's "Death with Dignity Act" has caused many to question federal oversight of local physicians.

Liberating laws are phrased in the language of rights: my right to take hallucinogens, or to be a Scout leader, or to be free of discrimination. This is hardly surprising. Rights are our common moral tongue, the vocabulary by which most Americans communicate notions of right and wrong, dignity and justice. While rights have long been a staple of America's moral discourse, they have taken on a new intensity. In previous generations, individual and group claims were highly valued, but (as in the case of temperance and prohibition) they were considered in relation to community interests. A right may have been in harmony with the larger society's preferences or it may have clashed with those preferences. In either case, it was understood as one of many competing claims that had to be judged and measured.

The new understanding of rights suggests that community interests are hardly worth considering. For example, euthanasia is considered to be a moral good because it validates the right to die and individual preference. Its effects on the larger community are, for its supporters, a secondary consideration. Gay marriage is morally appropriate because it recognizes a right to choose; community disapprobation is deemed backward, inconvenient, and irrelevant.

It is tempting to distinguish sharply between restraining and liberating regulation. In one corner is the "no" born of religion and tradition; in the other corner is the "yes" produced by a live-and-let-live nonjudgmentalism. Frequently, advocates of the latter go toe to toe with proponents of old-school prohibitions. Supporters of gay marriage fight constantly with religious conservatives; right-to-lifers are at the throats of those who defend the right to choose.

But this tension is easily overstated, for the two types of law can coexist in the same community. Liberty-loving Vermont, known for its acceptance of gay marriage and iconoclastic politicians, is less known for its ban on sexually explicit behavior on the Internet. Likewise, Indiana, a state that proudly supports curfew laws and public displays of the Ten Commandments, requires that its law-enforcement agents be particularly sensitive to the race, religion, disabilities, and sexual orientation of crime victims. Indeed, the different values informing the two laws often coexist in the same person.

Furthermore, religious leaders, historically the defenders of prohibitive morality, now often speak in the language of rights and moral liberation. As the Reverend Steven Fourrier, arguing for the permissibility of Bible clubs in elementary schools, explained to the New York Times, "What people don't understand is if you're going to enjoy your rights, you have to let others enjoy theirs. You can't pick and choose what speech you like and don't like." Similarly, state legislation passed to promote religious freedom (modeled on the Religious Freedom Restoration Act, a federal law eviscerated by the Supreme Court in 1997) is designed to strengthen the rights of believers who define their causes in terms of aggrieved special interests. Religious privileges, such as exemptions from zoning laws, are defended as necessary for the causes of freedom and nondiscrimination.

Red and blue

Despite this overlap, moral preferences can vary dramatically, and they do so in recognizable patterns. Americans do not like to think of themselves as predictable, let alone predictable on a regional basis. This may be why many commentators made so much of a color-coded map of voting behavior after the last presidential election. When votes were plotted, in Republican red and Democrat blue, it became clear that party affiliations are not distributed across the nation like snowflakes shaken in a plastic bubble. Those who live in cities--especially the largest cities--overwhelmingly vote Democratic while rural areas and metropolitan fringes are mainly Republican. Partisanship not only correlates to population density but also to region: Democrats congregate on the east and west coasts, while Southerners are generally Republican.

The red and blue map is interesting as a colorful reminder that regional differences still matter in national elections. The picture becomes more revealing, though, when one discovers what characteristic members of each color most frequently have in common. Exit polls and post-election surveys show that partisan preferences are closely linked to religious affiliation. With some notable exceptions--Jews, black Protestants, Hispanic Catholics--voters who identified themselves as members of a mainstream religion overwhelmingly voted for George W. Bush. Eighty-eight percent of Mormons, for example, and 84 percent of "observant" white evangelical Protestants supported the current president. The same holds true for those who regularly (once a week or more) attend religious services. Those who call themselves "secular" favored Al Gore by 65 percent; 80 percent of "other non-Christians" did the same.

While religious commitments do not perfectly line up with partisan affiliations, many analysts think the correlation is suggestive of a fundamental cultural rift. As Michael Barone has written, we are two nations with "diametrically opposite views of what is decent and moral." So much for the assumption that a mobile, commercial culture wipes out regional mores:

When given the choice, we group ourselves by common values and thus ensure the continuation of regional differences.

Failed homogenization

One of the most interesting things about the persistence of moral regionalism is that the odds are so heavily stacked against it. Variation of this sort should have been wiped out long ago by centralized moral instruction: The national government has not been shy about imposing its vision of appropriate behavior on local communities, nor has it hesitated to deliver penalties when its instructions go unheeded. Congress discovered its own police power--in contrast to the states'--during the Progressive Era. Since then, it has promoted its moral goals through labor, criminal, and, most frequently, civil-rights legislation. From the 1950s forward, local resistance to national moral standards--specifically, nondiscrimination--became a mark of depravity, proof that local officials could not be trusted on important social matters. Moral federalism should have met its end in September 1957, when President Eisenhower dispatched the 10 1st Airborne division to show Governor Faubus the real meaning of political correct ness. Indeed, for many, years, state moral independence was itself morally tainted.

Federal courts have been active in stamping out moral diversity in the pursuit of national ideals, at least since Reconstruction. Constitutional guarantees of "due process, equal protection," and "privileges and immunities" were designed to give 'federal judges, for the first time, the ability to strike down state police regulations. (State moral backwardness, after all, caused the mess the Amendments were designed to remedy.) Judicially enforced rights were used to supercede local laws throughout the twentieth century. The high point of this process came during the three decades after the Second World War, when the Fourteenth Amendment was used, among other things, to strike down local laws regulating pornography, welfare, marriage, incarceration, and contraception distribution. As Justice Douglas lamented in the early 1960s, "The chronicles are filled with sad attempts of government to stomp out ideas, to ban thoughts because they are heretical or obnoxious." Local morality, one would think, didn't stand a chance, when pitted against progressive national standards.

The tradition continues. Even the Rehnquist Court, as Nagel points out, is generally hostile to moral diversity. While some of the conservative justices support local police measures when borderline rights are involved (such as loitering or nude dancing), the justices overwhelmingly value individual liberty over local discretion when recognized rights are threatened. This is not odd at all, when one realizes that the Court's defense of federalism is not a defense of state power. It is a defense of limited government, at both the national and state level (or, as Nagel would have it, a defense of limited government so judges can rule with minimal interference).

Just as political and legal forces are aligned against moral federalism, so too are intellectual trends. Moral diversity is not something academic or political journals tend to favor: It works against the aims of many ideological programs. Moral federalism, as earlier examples show, expresses itself in frustrating ways: It is messy, factious, and virtually impossible to control. From the perspective of conservatives, moral federalism has a lousy track record. The legalization of once-illicit activities, such as euthanasia and drug use, flies in the face of order and tradition, while local ordinances sanctioning homosexuality, no-fault divorce, and gambling threaten traditional religious principles. On a deeper level, conservatives distrust moral federalism because it is excessively democratic. It is often driven by popular impulses, not debate, expertise, or reflection.

It is understandable, too, why some liberals dislike this kind of politics. Local morality can produce results at odds with the values of contemporary liberalism. As noted, religious groups have become adept in their use of liberating language. More moral federalism means more Ten Commandment displays, more after-school prayer clubs, more faith-based civic exemptions. It also means more prohibitive legislation. Defense-of-marriage laws are far more popular than gay-marriage laws; abortion restrictions are far more popular than laws that make the procedure more accessible. Pragmatic liberals want to keep decisions about moral issues in the federal courts, instead of at the mercy of local opinion. Besides, the concept of moral federalism is at odds with the liberal belief in universal human rights. Libertarians also oppose moral federalism, of course: It presupposes the legitimacy of moral politics. As GATO Institute Vice President David Boaz explains, governments should exist only "to protect rights, to prote ct us from others who might use force against us." There is little leeway here for a politics that aims to improve its citizens. The communitarian dislike of moral federalism, on the other hand, is more complicated. Though they celebrate localism and communal norms, two central elements of local moral politics, communitarians, if one takes Amitai Etzioni's "Communitarian Manifesto" at face value, want to avoid their program's prickly implications:

We hold that a moral revival in these United States is possible without Puritanism; that is, without busybodies meddling into our personal affairs, without thought police controlling our intellectual life. We hold that people can again live in communities without turning into vigilantes or becoming hostile to one another. We hold that our call for increased social responsibilities is not a call for curbing rights. On the contrary, strong rights presume strong responsibilities.

But moral federalism is not possible without "busybodies," puritanical or otherwise, meddling in personal affairs: A community that believes in right and wrong also believes in rooting out transgressors. Nor can there be a moral "revival" where everyone remains friendly. Communitarians must recoil from moral federalism if they are to maintain their genteel vision of local politics.

Moral federalism, then, is challenged by an impressive combination of political, legal, and ideological foes. Defenders of the original constitutional framework may be the only ones willing to support it. But should they? Can dire predictions for federalism be offset by local moralism? Is moral federalism federalism's saving grace, or at least something worth defending?

Moral politics defended

To answer these questions, we need to return to the original justifications for moral federalism. Local control of morality was defended, from the colonial era onward, as a means of inculcating virtue, keeping the peace, and encouraging civic participation. Whether it has indeed made us more virtuous is debatable, but it has certainly helped to preserve a measure of comity throughout the nation.

Michael Barone, as noted, believes our country is split into opposing red and blue camps--a perspective shared, in varying degrees, by Gertrude Himmelfarb, Terry Teachout, Francis Fukuyama, and others. If this description is even partially true, we should be grateful to moral federalism as a vent for frustration. The appearance of a granite sculpture of the Ten Commandments in an Alabama courthouse may be more than an act of mischievousness. It may actually quell anger against moral opponents and help to keep relative peace. Moral federalism ensures that any impending culture war remains at the level of moral differences. As the American colonists realized, nothing promotes a live-and-let-live mentality more than borders and exit rights.

But the ultimate end of moral federalism, at least for Hamilton and Madison, was not to prevent conflagrations. It was to encourage citizen involvement, responsibility, and camaraderie. Without these, the Federalists maintained, there was no chance for lasting self-government. It is here that the distinction between restraining and liberating moral politics becomes tremendously important. The former encourages the character traits necessary for self-rule, while the latter encourages traits that work directly against it.

Inherent in restraining moral laws is the assumption that individuals are parts of a larger whole. A government sanctioned "no"--don't smoke, don't gamble, don't litter--forces citizens to subordinate their autonomy for the good of the community. Restraining laws by their nature imply that human beings are capable of wrongdoing and that, consequently, personal judgment cannot be an absolute standard. Moral federalism implies that governing in itself is vitally important. A law of this type, such as a ban against cloning, may or may not inculcate virtue, but it does suggest that communities have the responsibility of self-rule and citizens have the responsibility of self-restraint.

Liberating laws, in contrast, are inherently hostile to government. Restrictions based on shared norms are often thought of as backward or mean-spirited; government attempts to enforce norms are considered oppressive and obtrusive. The rights-based sentiments behind these laws may be perfect for a voyage of self-discovery or defending minority interests, but they have not done much to cement fellow-feeling and respect for local institutions.

The value of moral federalism will depend on the pull and tug between restraining and liberating morals law. The present rebellious streak in local politics in favor of restraining morals law is good news for American democracy. Should liberationism eventually prevail, however, it will mean not simply the triumph of one party in the culture wars. It will also dim the prospects of genuine self-government in America.

KIMBERLY A. HENDRICKSON is a Ph.D. candidate at Boston College and a research associate at the American Enterprise Institute's Federalism Project.

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