Because of the Civil War, the 13th, 14th and 15th amendments to the Constitution, the Great Depression and the great wars of the 20th century, the US federal government is much stronger now than it was between the ratification of the US Constitution and the US Civil War. Yet state and local governments still have a fighting chance in many battles with the federal government. People often deplore the governments of other states and localities resisting the federal government, but support the government of their state or locality resisting the federal government. On the one hand, Republican-dominated states have gone to court to see which bits of Obamacare they could get away with skipping. On the other hand, Democrat-dominated states and cities have gone to court to see how much more welcoming they could be to undocumented immigrants than the spirit of federal immigration law indicates.
In the Federalist Papers #46, James Madison points to some of the wellsprings of popular support for state and local governments in their struggles with the federal government. He writes:
I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people.
First, the source of the authority of state and local governments is every bit as lofty as the source of federal government authority. In both cases, their authority derives from the people:
The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. … the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.
Seeing federal, state and local government all as agents for the people predicts that the levels of government that promote the policies people like best will have an advantage in the intergovernmental contest for power. To the extent different parts of the country want different things, the ability of state and local governments to tailor the policies they promote to the desires of those in a given area gives them an advantage. To the extent people in a large part of the country want to compel those in a small part of the country to do things a certain way (often because of what is seen as a moral issue), the federal government will have an advantage. More generally, different levels of government may at any given time be more in tune with the people. James Madison says this about what he saw historically and what might happen in the future:
It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due …
Second, state and local governments employ more people. (In 2020, the federal government employed 2.93 million people. State and local governments employed 19.77 million people.) This means that professionally, more people have the interests of state and local governments at heart than the number who professionally have the interests of the federal government at heart. And those who professionally have the interest of a given government at heart are likely to influence their family, friends and acquaintances:
Into the administration of these [the state and local governments] a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline.
Third, there are some things that are simply difficult for the federal government to do—in part because of the larger number of employees of state and local governments than of the federal government:
… it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered. … members of the federal will be more dependent on the members of the State governments, than the latter will be on the former.
When thinking of other countries where the national government seems to take over many of the jobs that in the US are done by state and local governments, it is important to realize that many other countries only have the population of a US state.
Fourth, a great deal of evidence shows that people who belong to a smaller and a larger group often identify more with the interests of the smaller group. I have spent many hours in meetings demonstrating that academic economists care more about the interests of their Economics department than about the interests of the university as a whole—though they also tend to believe that the interests of the university as a whole would be best served by what the Economics department as a body wants. And typically the economists in each field care more about the interests of their field interests than the interests of the Economics department. James Madison describes this tendency to identify with the local in this way:
A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. … members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States.
James Madison goes so far as to use the word “defalcation,” meaning “misappropriate of funds,” to describe how strong an influence state interests can have in federal congressional deliberations:
The motives on the part of the State governments, to augment their prerogatives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members.
This is the well-known phenomenon of pork-barrel spending.
By contrast, the interests of the national government are no strongly represented in state legislatures and executives. James Madison writes:
If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.
Fifth, states have many levers of power to resist a measure of the federal government:
… should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
Sixth, if the federal government tried to go against not just the interests of the people in one state, or several, but the interests of the people in almost all the states, the states combined could put up a very strong resistance to the federal government. James Madison explores this case at length. Here are some highlights of that long discussion:
A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. …
Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. … To these would be opposed a militia … officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
To back up James Madison’s argument, imagine the Civil War if twice or almost twice as many states as the Confederacy had arrayed themselves against the federal government. Even now it is hard to see the federal government defeating a coalition of 40 states in armed conflict given how many in the federally-controlled armed forces would desert to the coalition of 40 states.
Some might lament the strength of state and local governments to resist the federal government. But that strength is real, even now.
Below is the full text of the Federalist Papers #46 to provide the context for each quotation above: