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LeBron James & the 10th Amendment

Claude Fischer, professor of sociology | August 2, 2010

Sports commentators have suggested that one reason LeBron James chose Miami over Cleveland and New York is that Florida has no state income tax while Ohio and New York do – a difference likely to make quite a difference to someone who will make gazillions of dollars.

This sort of choice, a political scientist might note, would not have happened in almost any other country in the world. I don’t mean hopping teams for tax reasons; apparently soccer players react similarly to tax differences between countries. I mean hopping teams within a country for tax reasons.

LeBron James

LeBron James (from Keith Allison via Flickr)

And that brings us to the 10th Amendment.

Voices are being raised to amplify the force of the 10th Amendment to the constitution, the plank in the Bill of Rights reserving much authority to the states. It is a plea for more states’ rights,  more local control – more cases like the income tax case, where states have their own laws.

Here is the irony: The U.S. is already one of the most politically decentralized nations (perhaps the most) in the modern world.  The unusually high degree of local authority is one of our distinctive features. Is that good or the bad? That depends.

The historical trend has been away from localism – although not much by world standards. Is that good or bad? That depends.

The Disunited States

By world standards, an amazing amount of American law, policy, and regulations are determined by the states – and even the counties and cities – of the United States. And thus, much varies from state to state or even from town to neighboring town. Here is a quick and surely incomplete list:

  • Taxes: what kinds (income, sales, property, capital gains, etc.), what levels, what rules.
  • Crime: what are crimes – including very serious ones such as murder and rape, what the penalties are (including death penalty or no), how they are to be judged, and so on.
  • Policing: department staffing, salaries, procedures, and so on. (For example, the City of Berkeley decides to downshift enforcement of pot-smoking laws; the Maricopa, AZ, sheriff decides to upshift pursuit of the undocumented.)
  • Schooling: staffing, salaries, curriculum, classroom size, promotion policies, testing, etc. (So, evolution is a matter of course in some places, a topic for teachers to avoid elsewhere.)
  • Labor laws: minimum wage, occupational safety, union recognition, age rules, etc.
  • Building codes: minimum lot sizes, heights, electrical safety, licensing of contractors, etc.
  • Consumer regulations: on credit, product safety, pollution, hours of operation, liquor, etc.
  • Voting: registration dates, voting mechanics, party primaries, identification requirements, absentee balloting, etc.

Other western democracies may have local variations in some of these arenas, but this list is probably extreme if not exceptional. Many comparable countries, for example, have a national police, a national judiciary, a national sales tax, a national program for training and assigning teachers, national labor laws, and so on.

Back in the U.S.A., what decentralization means is that an American can cross a state line – and, in many cases, just a city line – and face significantly different laws, taxes, schools, policing, and so forth.

Weighing the Options

There are arguments for both more and for less decentralization. (I won’t address what the Founding Fathers expected; that is a constitutional argument for the courts. And besides, the Fathers built a lot of things into the Constitution that most of us wouldn’t want, like slavery and reserving voting rights for men of property.)

Arguments for more decentralization include these:

  • Individuals can (at least, in principle) choose the rules to they want to live under. You might want many government services and high taxes; I might want few services and low taxes. We can each get what we want (– if we can move into that state or city).
  • States and community governments can reflect their local cultures. Where many conservative Christians live, lifestyle regulations (e.g., bans on “adult” stores) can be strict, the school day could start with a prayer moment, and the police can clean up the local teens (no sagging here!). Elsewhere, say in my town of Berkeley, …. well, ‘nuff said.
  • If we believe in community control as a political principle, then the local community needs the widest authority.
  • And: decentralization can allow experimentation. At various times, both liberals and conservatives have hailed the idea that the states are laboratories of democracy – developing welfare programs in the 1920s, environmental regulations in the 1990s, and allowing concealed handguns in the 2000s.

Arguments for less localism include these:

  • Localism leads to “races to the bottom.” Jurisdictions compete for business investment or for affluent residents by offering more and more tax cuts and public subsidies. Automobile companies, for example, often pit states against one another when deciding where to open a new plant; in the end, some experts have calculated, the “winning” state loses more money than it gains from the deal. One blogger suggested, in this spirit, that other states should abolish their income taxes to attract future LeBrons.
  • It leads to unfairness in the sense that advantaged Americans can sequester their money, attention, and civic effort behind jurisdictional walls, contributing less than they “should” to the region or nation. This sequestration also produces is unbalanced “tax effort.” A poor town or state has to tax its residents at higher rates than a rich one does to reach the same level of public budgets.
  • Localism makes it harder to help raise up depressed regions, states, and communities. The South, most notably, lagged far behind the rest of the country in income and health for much of American history. Breaches in localism like the WPA (resisted by many Southerners), the TVA, and Federal community aid helped the South catch up.
  • It can undermine American values. That is, particular regions, states, or communities can resist what the nation as a whole considers to be core values – say, by allowing abusive child labor, or most famously, by establishing Jim Crow racial systems.

Moving Toward Centralization

Abraham LincolnThe United States remains, by world standards, especially local in its governance, but the 10th-Amendment folks are right in that localism was much greater 200 years ago. What happened? Several concerns led the national government to expand its role – and Abraham Lincoln was at least as critical to this development as FDR.

There were military issues. During the Revolution, George Washington was often frustrated by the ability of a colonial legislature or even soldiers from a particular colony to decide they had had enough and pull out. By the Civil War, Lincoln had had enough with trying to cajole governors for troops and instituted the first national draft. (BTW, Jefferson Davis did the same in the Confederacy.) There is probably no greater expression of national authority than the power to coerce someone to kill and die for the country.

There were many economic issues, of course:

  • The Constitution superceded the Articles of Confederation in large part in order to open up state borders to freer commerce.
  • In the early 19th century, the national government licensed, subsidized, or constructed much of the key infrastructure that supported American economic growth in the 19th century, such as postal roads, free newspaper circulation, canals, banks, and forts on the frontier. Some of these initiatives, like the National Road, were contested as unconstitutional.
  • Lincoln’s Republican administration took advantage of the South’s absence from Congress during the Civil War to subsidize cross-continental railroad construction, give away land to homesteaders, and establish land-grant colleges (Berkeley is forever grateful to those Republicans).
  • Franklin Roosevelt’s Democratic administration took advantage of the Great Depression crisis to institute national building projects, many of which helped open up the south and southwest to growth, such as rural electrification and dam building. (The Boulder Dam, later renamed the Hoover Dam, however, was started by Hoover.) The New Deal also set up social infrastructure, such as social security and unemployment insurance, which most historians would argue also became critical parts of our economic infrastructure.
  • After FDR, the federal role kept expanding in response to perceived economic needs. Eisenhower funded the start of the interstate highway system. (His political cover was that this system was a military defense project; the real estate developers who built American suburbia at the interstate exits no doubt chuckled at that.) Kennedy and Johnson initiated economic uplift efforts, such as the Appalachian Redevelopment Act. Recent administrations, even, for example, Nixon’s with regard to environmental protection, have extended the federal role by trying to make business regulation nationally consistent. (National businesses would rather one set than 50 sets of rules.)
  • And so on and so forth.

Critical social issues also drew the Federal government into what had been local issues. Here four examples:

  • Religion: The Constitution’s 1st amendment banned a national religion, but many states had official state religions well into the 19th century. The Federal example led to disestablishment, but freedom of religion was officially imposed on the states when the Federal courts used the 14th Amendment to apply the 1st Amendment across the country.
  • Marriage: Polygamy was an open practice in the Mormon Utah Territory, but the Federal government fought it and in 1890 the LDS Church gave in. Outlawing polygamy became a requirement for states’ admission to the Union. And later, as another example, the Federal courts said that states could not ban inter-racial marriages.
  • Slavery: An obvious case, and once again, Lincoln was the nationalizer.
  • Civil Rights: In the second half the 20th century, the national government expanded and enforced civil rights at the state level – clearly in attacking racial segregation (example: in 1957, Eisenhower sent the101st Airborne Division to Little Rock, AK, to let nine black children attend Little Rock Central High School), but also in promoting equal treatment for women (say, in school sports), the disabled, religious minorities, and so on.

The U.S. has moved a considerable distance from the extremely decentralized system of the Founding Fathers – although is still much more decentralized than the rest of the western world. Whether that change has been for the good depends on what you most value in the trade-offs.
