Opinion - To constrain Trump, progressives should look to the states
Throughout the campaign Democrats piously invoked the Constitution as a reason to oppose Donald Trump, calling for conservatives and independents to put aside policy concerns and work with them in defending our nation’s foundational charter. Now is a chance for progressives, if truly worried about Donald Trump, to join in defending the limits our Constitution places on governmental power.
In particular, that means progressives need to start embracing two pillars of the Constitution: federalism’s division of power between the states and federal government, and the separation of powers that limits the policy-making discretion of the presidency.
At least one prominent Democrat, California Gov. Gavin Newsom, has already observed, “we intend to stand with states across our nation to defend our Constitution and uphold the rule of law. Federalism is the cornerstone of our democracy. It’s the United STATES of America.”
Such an argument is welcome to conservatives, but hostile to almost a century of progressive disregard for the Constitution’s limits. Law professors, members of Congress, progressive pundits, and others have declared that rather than be bound by old-fashioned constraints on federal power, Americans should instead defer to a “living Constitution” of incredible flexibility. Thus, they have sneered at not just the Constitution in general but especially the 10th Amendment, which places explicit the limits on federal power, including the president’s.
This campaign illustrates why Americans would be better off if constitutional limits were enforced and we did not need to fear who was president. In his famous 1830s work “Democracy in America,” Alexis de Tocqueville marveled that Americans were not that invested in an office that, by virtue of the Constitution’s strict limits on federal and presidential power, could not actually do much. Americans today are frankly right to be so invested in who wields the now-imperial scepter — a scepter forged and empowered by a century of progressives’ “living constitution” philosophy and its contempt for constitutional constraints on the president and federal government.
It is worth noting that progressives were not always hostile to the Constitution’s structural limits. As I recount in my recent book, before the 1930s, it was progressive governors and pundits — including many on the far left, and some surprising voices like The New Republic’s Walter Lippman, Al Smith and a pre-presidency Franklin Roosevelt — who aggressively invoked states’ rights, federalism and constitutional originalism. They did this in order to build up protective welfare systems and regulate industrial capitalism, free from unconstitutional federal meddling.
A return to federalism and states’ rights does not mean that states would be free to run amok. The original Constitution set important limits on the states, limits which were expanded with the Reconstruction amendments (by creating federal enforcement of the Bill of Rights, due process and equal protection, against the states). That is why, as my book explains in sketching out a revived federalism, even a more limited understanding of federal power would not mean reviving Jim Crow.
Progressives have become accustomed to a heads-we-win, tails-you-lose application of federal power. For example, under the flexibility of “living constitutionalism,” Democratic administrations have wielded the Department of Education and its edicts to impose federal education policy on the states. Republicans, observing that the Constitution provides almost no federal role over education, have been much more hesitant to do the same.
No longer. Education policymakers on the right increasingly call for an end to unilateral disarmament, and for Washington to impose a slate of more right-wing policies on the states. Republican members of Congress have talked about conditioning federal education funding on states’ compliance with such policy priorities. Moreover, education is only one of the many fields where conservative activists increasingly look to the sweeping authority of progressive “constitutionalism” not with disgust but envy.
Progressives wanting to keep the Trump administration within constitutional limits would have willing allies — not least the originalist members of the federal judiciary. But progressives will have to decide if they want to work toward passing congressional laws that reinforce the Constitution’s limits on federal and presidential power, raising and strengthening states’ rights and separation of powers precedents in federal courts, and teaching students the merits of our Constitution — including, yes, the Tenth Amendment.
A century of progressive thinkers and activists have brushed aside restraints on federal power, holding that the federal government and president should be primarily limited not by the Constitution, but a mere majority of voters. Well, if that’s true, voters have just concluded that Donald Trump and his congressional allies should hold that power.
Sean Beienburg is an associate professor in the School of Civic and Economic Thought and Leadership at Arizona State University and the author of “Progressive States’ Rights: The Forgotten History of Federalism” (2024).
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