I first met Professor Derthick in the early 1980s, when she directed the governmental studies programs at the Brookings Institution. She had previously taught at Harvard and Boston College (among other institutions) and, after her Brookings engagement, moved on to the University of Virginia, where she taught until her retirement in 1999. She remained a prolific author and an engaged participant in public debate in her post-retirement years. In those years I directed AEI’s Federalism Project. Martha was a frequent, enthusiastic, and well-nigh irreplaceable participant in our events, even as the trek from Charlottesville became increasingly traffic-snarled and time-consuming.
Martha Derthick carefully studied many things, and she understood them superbly well. She authored two near-canonical works on the politics of Social Security, as well as reams of splendid studies on a vast number of federal programs, from social service grants to compact commissions. And while the literature in her main fields of study (public administration, and federalism, which then meant intergovernmental relations) is often arid and pedantic, Martha Derthick’s writings are anything but. Unfailingly, her closely observed studies convey deep insights into the inner workings of American institution—why the states have remained the “default” setting in policymaking even in an age of centralization; or why things that according to PoliSci models should not be happening (deregulation) do sometimes happen. In many ways, this is political science at its best—with a scalpel, not a “rent-seeking!” sledgehammer; moderate in spirit; and respectful of institutions: mindful of their limitations but convinced that somehow, we have to make them work.
That style of political science has fallen out of favor. Perhaps, that is because the profession has been taken over by quants and theorizers; perhaps, it is because our politics has become too brutal and contemptuous to leave much room for a reformist spirit and the give-and-take of ordinary politics.
Martha Derthick, in her post-retirement years, began to suspect something like that. Her interest in federalism prompted her to study the 1998 Master Settlement Agreement (“MSA”) on tobacco litigation. State attorneys general (you’ll recall) ganged up with trial lawyers to sue the big tobacco firms, whereupon the parties all ganged up to create a tight industry cartel and to impose a nationwide tobacco tax, never approved by any legislator, in excess of $240 billion. At the time, this was widely celebrated as a victory for good government and federalism. Martha Derthick would have none of it. Up in Smoke, originally published in 2002 and now in its third edition, is a detailed study of how this unlikely bargain came about—and a devastating critique of its cynicism and the wholesale corruption of our public institutions. Martha Derthick had great affection for the Constitution or rather, for the kind of politics it is supposed to create and for a very long time did create. That went by the boards with the MSA:
The core principle of American government is self-government. Federalism helps sustain it by multiplying the number of polities in which the institutions of representative government exist, and by requiring elaborate, complex networks of intergovernmental cooperation to develop if national policies are to be framed and made effective. The tobacco litigation, in bypassing representative institutions in order to create a regulatory regime, undermined both Madison’s “principal safeguard,” dependence on the people, and the “auxiliary precautions” of federalism and separation of powers. Separation of powers was gutted when executive officials, the attorneys general, managed to commandeer the judiciary for purposes of policymaking without, however, permitting judges and juries to perform their putative functions. Courts became a medium for making a threat rather than an instrument of deliberation and judgment. Once separation of powers was gutted as a check on the power of governments, so too in this case was federalism. The states, whatever their underlying interests and constituency preferences, were constrained to join a “race to the trough” of tobacco profits.
That strikes me as precisely and depressingly right. In my darker moods, I’m beginning to suspect that the MSA—legal nuances aside—has since become a kind of template for our politics across the board. But then, Martha Derthick had little use for that sort of hyperbole.
I should learn that from her, like I’ve learned so much else.