The Importance and Persistence of State Political Identity | Ernest Young


I want to start by thanking Andrew Bibby and the Center for Constitutional Studies for inviting me. It’s great to be here. I
also want to thank all of you for being here this morning. Nothing warms the
cockles of my heart more than on a beautiful day of the last day before
fall break to see a bunch of students turn out to hear people talk about
federalism. I’m not really here to talk about federalism as a constitutional principle.
I want to talk about the sociological underpinnings the cultural underpinnings of federalism. I want to look under the hood of the constitutional doctrine
and see what is there. I’m going to cover a lot of the same ground that Professor
Tarr did. It’s a little scary to think that if a meteor hit this building it
would probably kill all the legal academics in the world who think there’s
such a thing as as state identity anymore. So hopefully no meteors this
morning. Professor Tarr started as I was planning to start with Colonel
Robert E. Lee’s decision to join the Confederacy and fight for Virginia
against the United States. As professor Tarr noted, it’s very hard to
think of a modern day American making a comperable decision to put his state first
before the nation. I don’t think there’s much doubt that most Americans primarily
identify with the Nation rather than the state. Given the tragic consequences
of Lee’s decision I think that’s an unequivocally good thing. This
shift in American political identity over the course of our history leaves us
with several important questions. One is, do people still care about the states as
well as the nation? Should people care about states? And then finally if the
answer to the first question is no but the answer to the second question is yes,
is there anything to be done about that? Can we show our upstate identity if it’s
actually in decline? And I should acknowledge at the outset that I’m not
exactly the right sort of scholar to be examining these questions. I’m basically
a doctrine guy. I’m most comfortable reading Supreme
Court decisions and then writing lengthy the law review articles about how
everything would have gone a lot better if the justices had just asked me what they
should have said. For a long time I wrote doctrinal articles about the
doctrinal principles of American constitutional law having to do with
federalism. But over time it became clear to me that federalism, as a
constitutional principle, was not going to survive unless there was something
underneath it. Unless it was some kind of cultural commitment to the underlying
states to make the politics of federalism vibrant. So that’s what the work I’m gonna talk to you about today has been trying to investigate. The immediate impetus for
this project was a little piece by a Ed Rubin called puppy federalism, which
argued that all the Supreme Courts federalism doctrine was ineffectual and
slightly pathetic, because we are in fact one nation. More specifically Rubin
argued that first there’s really only one reason to have federalism, which is
to accommodate strong ethnic cultural or religious identities that
geographically based. So if you’re Iraq and you have Kurds and Sunnis and
Shiites who will kill each other if they hang out together too much, then you
need federalism. But second, Rubin argued that America is not Iraq. Even if we once had those kinds of strong sub-national identities, we don’t have them anymore. All the
states are basically the same these days. There’s a Starbucks on every corner
whether you’re in Boston or in Austin. And then third, it follows that Americans
don’t need federalism. It’s just an outmoded relic serving no purpose. Moreover Rubin claimed that America
doesn’t have federalism. The Supreme Court isn’t serious about limiting national
powers, a constitutional matter. And it can’t be serious, because the
sociological and cultural underpinnings for real federalism simply
don’t exist in this country. So professor Rubin developed and expanded this one
nation argument in a recent book that he wrote with Malcolm Feeley, who you’ll here from later today. A lot of other scholars
such as Robert Shapiro, at Emory, and Jim Gardner in Buffalo have made similar
arguments about the death of State identity. So ultimately this one
nation argument is just a jumping off point for a deeper issue, which is to try
to figure out what are the cultural underpinnings of American federalism. That’s important for three more basic sets of federalism questions. So one is
there’s a huge debate about what professor Tarr referred to as the political safeguards
of federalism. Right? That whole notion posits that political actors, members of
congress, state political party officials, state bureaucrats tasked with implementing
federal statutory mandate, all these people can protect state prerogatives
through political and bureaucratic means so that we don’t have to worry so much
about judicial review to protect federalism. It will be protected through
the ordinary political process. This is a standard argument, which the Supreme
Court has bought in a number of cases. But it only works, I think, if these officials
feel some sort of attachment, some sort of loyalty to their states. A second set
of issues have to do with what good is federalism. A lot of the literature
on the benefits of federalism posits that states will experiment, that they’ll
compete through policy innovation, that they provide a good opportunity for mass
political participation because they’re closer to the people. Sometimes this
literature is put in terms of Albert Hirschman’s famous theory of exit
invoice. But that theory posited an important role, but an undeveloped role,
for loyalty. That is the notion that people stick in and feel some attachment to their
jurisdiction, even if their discontented with conditions there. Loyalty for
instance is what mobilizes voice instead of exit. It prompts people to stick
around and push for political change in their state or their locality,
rather than simply exit to a place where they like the conditions
better. And the question is whether there’s enough loyalty to states out
there to realize federalism’s important benefits and then finally, both Madison
and Hamilton explained that the Framers theory vertical checks and balances as
grounded in that competition for the loyalty of the people between the
national government and the states. And it was important to this theory that
neither side totally win that competition that there would always be a
creative tension between the two levels of government. The idea is that each
citizen would have significant loyalties to both political communities of which
they’re a member. And that would allow them to appeal to one or the other depending on which government was misbehaving. So
think about for instance Virginia and Kentucky’s …resistance
to the Alien and Sedition Acts,or California’s resistance to national inaction on
global warming on air pollution or Colorado and Washington’s effective
nullification of federal marijuana laws each of these is a situation in which
people use their loyalty to their state, their attachment to the state political
community to express a different view in opposition to the view that was coming out
of Washington. I want to make two claims about this one nation argument that
there’s no such thing as state identity. And the first is descriptive. The proposition
that state identity is dead remains unproven and it’s contradicted by
important evidence. The second claim is normative. There are other reasons to have
federalism besides accommodating strong state identities. One of those is checks and
balances checks on the center. But state identities, state loyalties may be an
important means of preserving federalism even if it’s not the only end of
federalism. So if we think that state identity is in fact dying, if Professor Tarr’s more pessimistic conclusion is true then we need to think about how to bring it back. So before I
take up those arguments I want to introduce an important analogy to Europe.
And it is helpful to think about what’s going on abroad because the debate on
identity is so much more well-developed there. The question there operates in reverse. So member state identities in the
European Union French, German, Polish are very strong. And the question is whether
there’s enough identity with the central government with the European Union as a
whole for the institutions at that level to be viable. And to make meaningful
policy at that level. So for instance Germans are unlikely to bail out Greeks
who they see as irresponsible in a financial crisis but if they all see
themselves as europeans then that sort of redistribution and transfer is a lot more
likely to work and you’re much more likely to get together and build the
institutions to have the centralized economic policy. So the europeans
obsessively debate this question of multiple levels of identity. And one
thing that comes out of that debate is two quite different conceptions of what
identity means. The first is illustrated by the German concept of a volk, people
united by a common ethnicity, religion, history, etcetera. So this is the more familiar conception, it’s the one that dominates the literature on nationalism, at least
up until relatively recently. But the second conception is associated with
theories of civic nationalism or constitutional patriotism which
deemphasize these ethnic and religious ties, and instead emphasize a common
attachment to certain political principles. So fundamental human rights,
for instance. I think this is a lot closer to the American national
story which has had an identity that’s built primarily around the set of
commitments the values of the Constitution and the Declaration of
Independence. There is no American volk in the older sense. So proponents of the one
nation argument seem to have this older volk- like conception of identity in mind. They say there is no volk of particular states, that the title the paper that my talk is
based on is called the Volk of New Jersey, question mark. And I’ll just tell you right now I don’t
think you Jersey has a volk of its own. But it might have a civic nationalist
identity, a commitment to certain kinds of political ideals. Alright, so the claim that state identity is dead is an empirical claim. It’s a claim about facts in the world. So you would
think it would be grounded in some evidence but so far you would be wrong. Proponents of the One Nation argument
have proceeded almost entirely by assertion and it’s not hard to see why that’s true
because state identity is incredibly difficult things to measure. We don’t
poll on this the way that the Europeans do, maybe you should, but I
think even the polls are an incomplete picture of of what we’re really trying
to get at. So I think we ought to at least try and see what sort of evidence
is out there. And there’s really… I think the problem breaks down into two
different questions. One is a question of distinctiveness, are the state’s different from one another? And then second the question of identity. Do people feel loyalty to
our identity with their states? And the latter is what I think we care most
about, but the one nation argument generally starts with the former, that the states
are all the same, therefore if the states aren’t distinctive then people must
not identify with them. And one thing to note is that it doesn’t necessarily
follow. So Tolstoy said, for instance, that every happy family is a light and yet I still identify
with mine and you probably identify with yours. I call this the Anna Karenina
principal and it means that the distinctiveness is not a necessary
condition for identity. You could also call it the Friday Night Lights principle. If
you’ve ever found yourself in West Texas high school football game between Odessa
Permian high school which was the model for the Dillon Panthers in the TV show,
and their rival, Midland Lee High School you might find yourself wondering… people in
Odessa and Midland are fundamentally similar demographically in terms of
class and income, economically, religiously,
politically, they’er fundamentally similar why do they hate each other and scream
for each other’s blood so much at these football games? And the answer is that
you don’t have to be distinctive to be passionate about your identity with a
particular community. Nonetheless I am willing to hypothesize that people are
less likely to feel strongly about their states if they’re perceived as all the
same. If there’s really a Starbucks on every corner, there’s a Gap, and a Barnes
and Noble and you can’t tell where you are because everywhere feels identically.
So let’s start there there are people, God bless them, than actually measure these
things. And it turns out that although Massachusetts and Texas do have similar
numbers of Starbucks per capita there’s a significant latte’ gap between those
states and states like West Virginia and Mississippi and Vermont, which have only
a tenth as many Starbucks per capita. You get a different map but similar
disparities if you look at Walmarts capita instead of Starbucks per capita.
More generally, I think it’s just hard to claim empirically that the states are the
same. And I’m not gonna walk through all the ways that that’s true here but it’s
worth noting the geographers, demographers, economists, political
scientists, and social psychologists don’t see homogeneity when they look at
America. They see radical diversity. These obvious geographic and demographic
differences make life in different states significantly different for people.
Certainly, I think, that if the differences in the political inputs that
are going into politics and the different states are reflected in
differences in political output. So, The Economist, for instance, did a cover story
couple years ago observing the Texas and California have adopted thoroughly
different economic models. Some states set aside land for fabulous public
university systems, others rely on private education, some say it’s been at the vanguard of
same-sex marriage and marijuana legalization others have dug in their
heels, Texas and Arizona even though both are red states and both are concerned
about immigration have adopted thoroughly different models of how to respond to that problem. And the Texans, at least, have explicitly grounded in their departure from the Arizona model
in notions of Texan character. As being distinctive from other states. So these are
just a few examples. But let’s say the states are different. Do people care
about that? In Europe, again, they poll obsessively on this, we don’t. We have
some natural experiments going on, so in North Carolina for instance they are re-surveying
the boundary between North and South Carolina. They’re using GPS now, in the
old days it takes ten paces toward that tree and then turn left, and you get a
somewhat different result there are about 70 people who thought they had
lived in South Carolina but they’re actually North Carolinians. Some of them
are pissed, but generally we can’t replicate this experiment. We can just
kidnap people, plop them down a different state, then ask them a little later
whether they care. Their are certain constraints on human subjects research. So I’ve tried
to come up with some proxies to determine, you know, at least get some insight into whether people care about their states. So what did states do to maintain
a distinctive history and communicate it to the next generation is one. To what extent do states have a distinctive political culture that you can measure? How much do people up and move from one state to another? And does that undermine any
sense of identity that they might have? So let’s start with ,with state history. Texas is a
state that’s gone to great lengths to maintain a distinctive history, so at
the beginning of the 20th century Texas progressives very deliberately
reoriented Texas history away from the common southern narrative of the Lost
Cause and how sad it was that pickett’s charge didn’t make it, we really should have won that war and now we’re just unhappy
about that. The view in Texas around the beginning of
the 20th century was that it’s all kind of depressing and it wasn’t exactly likely to
motivate anybody to move to the state and start a businesses, employ people and
things like that. So we needed a different story to tell about, to tell about
ourselves, and up to that point nobody had made very much at the Texas Revolution and
the period of independence. The Alamo was in disrepair, they weren’t sure where the
heroes of the revolution were buried. and so there was a very deliberate effort to reorient
the way that Texans were taught about their own history. So they restore the
Alamo and made it into an attraction. They literally dug up the body Stephen F
Austin, one of the founders of Texas, and moved it, with great fanfare, to the Texas State
Cemetery in Austin and reburied him. And they came up with a much more distinctive narrative. I think this is the sort of things that the political communities do
to maintain themselves. Throughout the literature on nationalism, there’s an
emphasis on the education of the young and the importance of the narratives that
we tell ourselves about the community that we are where we came from. Every state in
the Union mandates the teaching of state history in the public schools. In North
Carolina, where I live now, requires a year-long course on North Carolina
history and geography in elementary school and another year long course on North
Carolina history in middle school. And these kind of requirements have actually
increased not decreased, over the last century. I think these are bound to have
an impact but more importantly the fact that political professionals, who have a
limited agenda, and need to focus on things that actually matter, think this
is worth concentrating on and increasing suggested there some sort
of concern for identification with the state. What about state political culture?
There is an extensive social science literature on state political culture. So
a leading study looked at survey data on personal ideological and partisan
identification, broken down by states, for several decades, controlling for all the
demographic characteristics that you would think would dominate these
identifications. The respondent’s state turned out to be as important as
characteristics like religion or race. The study concluded that states are
active in meaningful political communities, whose electorates have
distinctive preferences, not just collections of atomistic individuals.
More generally, one thing I’ve realized is that the assumption that America is one
homogeneous mass seems to be unique and limited to legal academia. Political
scientists don’t think this. There’s a big literature empirically testing, and
often confirming, the influence of Daniel Elazar’s state political subcultures.
Historians don’t think so either. People like David Hackett Fischer have traced
the formative influence of migration patterns on political culture in the
states. Social psychologists have drawn maps of different psychological profiles
by states. Economists don’t think we’re homogeneous instead they write a lot
about the Virgin regional patterns of development and their potential impact on
politics. The last thing to consider is mobility. So one of the big reasons of
people doubt that there’s any meaningful state identity left, is that
we perceive our nation as an increasingly mobile society. That’s not a
perfect proxy for identity. One reason people up and move from
one state to another may be to sort themselves into more like-minded communities. And so I
think there’s two important facts to know about mobility. One is that it is
actually decreasing over time. There was much greater mobility in the 19th
century, the early part of the 20th century. So if mobility is an erosive factor on identity, we have less
of it now than we used to. People move in response to things like depressions and
reconstructions and things like that and we just don’t have those kind of
national traumatic events that caused the Jones to pick up and move to another part of the country. The second thing to note is that this
sort of, of mobility that we have may be materially different. So a lot of
demographers have said that we have more moves of choice now. More people moving to places where they think that things will be more congenial to them in terms of
the culture and the politics and not simply the places they can find a job or
more fertile land or something like that. And to the extent that people are moving
to sort themselves, then you would expect mobility to increase identification with
the political community that they end up rather than decreasing. Alright, so let me
just close by talking briefly about what is the relationship between state and
national identity? So. Professor Tarr and I both started Lee and the notion of that story is
that state identity trades off with national identity. And this, I think
is why a lot of people find the notion that you might identify with your
state kind of scary. That it would undermine the sense that Americans have of a national community and can all work together on solving problems. But it’s
important to recognize that there’s a quite different conception of identity that is
cumulative rather than a zero sum game. So this was Edmund Burke’s view of
identity. He wrote in the reflections on the revolution in France that to be
attached to the subdivision to love the little platoon we belong to in society
is the first principle, the germ, as it were, of public affections. It’s the first
link in the series by which we proceed toward a love to our country and toward mankind. So you start by loving your family, and then you love your town, and your
school, and maybe your church community, and then you start branching out to the
broader community of your state and ultimately to your nation and maybe some cosmopolitan
identification of mankind as a whole. But the idea is that these, you know, these closer identities are easier. They train you to be someone who forms attachments but they don’t keep you from forming attachments to the broader groups. And I
think that’s consistent with most of the contemporary sociological and
psychological literature on identity. That most people have multiple identities
that they use… employee and draw on in different parts of their lives. And so I
think it’s also confirming what you see out there in society. So if you think about
people who care deeply about their states, those are often the same people
who care deeply about the nation. I probably care about particular
state more than almost anyone I know, but I’m also most nationalistic people I know.
If you think about the South as an area that is particularly attached to its
states, you also have very high levels of military service and other
demonstrations of national patriotism in the same regions. I think that tends to
confirm the idea that identity might be cumulative rather than a trade off. And I
think that’s terribly important in an era where there’s so many different
identities that are far more divisive than attachment to a state. The nice thing
about state identity as something that people can feel an attachment to, is that it
cross cuts things like ideology and race and ethnicity and religion and it
gives people who differ in all those ways a ground on which they can come
together and form common ground. And I think that’s not scary, that’s reassuring.
So I just want to close with with one more story and it’s a story from my
summer vacation at the beach in Georgia with my in-laws who live in Dayton Ohio.
At one point my sister-in-law and her husband disappeare for a couple hours
and we all thought well this is great you know they’re getting some time alone
away from the kids hopefully they’re having a date together. They come back
and it turns out that they’ve gotten tattoos. And what what have they gotten
tattooed on them? They both tattooed on their wrists the outline of the state of
Ohio. Right? The state of Ohio not one of the classic identity states, it’s not Texas,
it’s not Hawaii, it’s not Utah, it’s Ohio, for gosh sakes, so go figure. Like I said reports of the death of State identity I think are greatly exaggerated. Thank you.




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