Media reports on Kavanaugh’s views on executive power too quickly assume he would shield the executive branch during criminal investigations.
I’m a big Joel Kotkin fan and a localist at heart—and who isn’t? It’s true that our big, bloated, centralized institutions haven’t worked very well. And surely we would be better off if we could, instead of coming to blows over every inch of national political territory, agree to disagree and commit to a more variegated, experimental politics.
The argument isn’t entirely free from doubt. More local control means a “Big Sort,” as the rich retreat into “super zip” enclaves, the social structure of poorer neighborhoods collapses, and the country begins its process of coming apart. In some ways, then, localism may aggravate social tensions and ideological strife. Even so, the claim that more decentralization might help to counteract polarizing tendencies and social discord has a great deal of appeal.
That is, until one starts to contemplate the politics. Joel Kotkin’s eloquent plea to restore localism is a cri de coeur. It is not a plausible political program.
The Founders, Louis Brandeis, and Us
At the risk of sounding quarrelsome: I think we should leave the Founders out of this debate. They had exceedingly little to say about the matter. Of course, the Founders didn’t think that a central government, operating over a vast territory, could productively govern and administer local affairs. They even assumed, wrongly as it turned out, that Congress would attract individuals who would attend to grand questions of state (such as war or foreign affairs) and who, thus preoccupied, would leave pothole repair to the locals.
The Founders’ constitutional project, though, had to do not with localism but with states—which, as Joel Kotkin rightly emphasizes, are way too big to serve as Tocquevillean communities. And even with respect to states, the Founders were ambivalent at best. If you take James Madison’s argument for an “extended republic” seriously, it means that states—those “wretched nurseries of unceasing discord,” as Alexander Hamilton put it—should cease to exist as political communities.
We should also leave aside Justice Louis Brandeis. He was an atrocious jurist and a worse economist, whose celebration of state “laboratories” turns out to have been a pathetic excuse for the rankest kind of interest-group racketeering. The metaphor comes from Justice Brandeis’s dissent in New State Ice Co. v. Liebmann (1932), where Brandeis defended an Oklahoma law that monopolized the ice industry by means of price controls (which rank high on the list of things that we should not want to experiment with). Also, Justice Brandeis delivered some of his most ardent diatribes in support of localism while inveighing against chain stores, the forerunners of today’s supermarkets and box stores. You don’t have to be a gonzo libertarian or a slave to global capital to be skeptical of that kind of tarted-up parochialism.
Mercifully, the argument for localism does not depend on those authorities.
Economics and Politics
The level-of-government question, as viewed by the economists, is a problem of scale. The central management of local matters will produce nothing but social loss. Conversely, local interference with national objectives (say, defense against foreign enemies) is also bad. On the principle of “subsidiarity,” matters should be handled by the smallest jurisdiction that is able to “internalize the externalities” and, in Brandeis’ (argh) overused phrase, to “experiment without risk to the rest of the country.”
Economists can draw the calculus on a blackboard. So what’s the prob?
For one thing, localism has no logical stopping point. Collective political decisions always leave someone worse off, even when they are made at a neighborhood level. The only truly local jurisdiction is a household, which is not a level of government at all. The most forceful argument for local government, I think, isn’t so much about the efficient scope and scale of public goods; it’s the comparatively low cost of exit when you don’t like the product the local tyrants put on offer.
A second, more consequential problem is that the calculus works only on a blackboard. As the late Justice Antonin Scalia once put it, every curbstone philosopher knows that everything is related to everything else. The “externalities” run every which way, and with a handful of exceptions—national defense at one end, the height of picket fences at the other—it’s hard to think of any issue that is pristinely local or pristinely national.
Immigration is a national issue because it’s about who is or isn’t permitted to enter and remain in the country; but the effects are felt at the local level. Does this mean that local jurisdictions should be permitted to harbor illegal immigrants—or to expel them, if that is what the residents of that locality decide? What of oil pipelines, endangered species, or disability rights? While we’re at it, every commercial transaction must begin and end in a particular place and is “local” in that sense. And going in the other direction, commercial transactions can span the country and the globe. States and counties have sought to compel pharmaceutical companies to establish gigantic systems for the collection of unused drugs, on the theory that people flush pills down the toilet and lo, the local carp conk out on opioids. Commendable exercise of local control—or egregious interference with interstate commerce? You figure it out.
Localists skirt this problem by conceding that decentralization must proceed “within limits.” The question is, what limits; and that isn’t an abstract economic exercise but a question of what one values or is willing to give up. Hence, a commitment to localism, however sincere or widely shared, is always a latent, second-order preference. Lefties may embrace localism—but surely not at the price of comprehensive, federally funded civil rights mandates. On the Right, my dear friend and occasional coauthor Richard Epstein, is here cited as an advocate of localism—except he also believes that zoning laws are unconstitutional.
There, you might say, goes the neighborhood.
Politics, All the Way Up and Down
All this is a longwinded way of saying that localism offers no respite from ideological strife. In fact, the question of what ought to be local or national is itself a venue for partisan contentions. Unlike Joel Kotkin, I would not look to the millennials (on the whole, a deplorable lot) to counter that tendency. As he acknowledges, they are bound to insist that every last baker in every corner of the country must sell wedding cakes to gay couples or close up shop—a conviction that reflects a rather attenuated view of local autonomy. And as for the Democrats, wonkish localist theories are bound to fall on deaf ears. The Dems are the party of the permanent government, and the only local government they can embrace without putting their base out to pasture is local government on top of the federal bloat.
The theme that actually has traction on the Left, forcefully propounded by Yale Law School dean Heather Gerken and others, is that state and local institutions provide a means of organizing resistance to an autocratic central government. That’s not a bad argument; but as Joel Kotkin recognizes, it is too contingent on partisan constellations to provide a reliable foundation for a lasting localist alliance.
Are there ways to foster localism? Sure. We could cancel federal grants, repeal the Endangered Species Act, rescind the Americans with Disabilities in Education Act, abolish the U.S. Department of Housing and Urban Development, and (coming soon to a theater near you) let states and counties go insolvent. I’m open to all those suggestions, and a whole lot more. Is Joel Kotkin?