Federalism: This Land is Whose Land?


My family hails from Massachusetts, but we, like many Americans, are in love with the West. We spent months traversing some of the most famous National Parks in America. During those trips, I never thought about whether this land was my land or not. To me, the answer was self-evident – when Theodore Roosevelt pressed Congress to set aside nearly 200 million acres for posterity, he gave all Americans a great gift and each of us an equal share in the future of these great spaces.

However, as we exited the Grand Tetons and sped toward Jackson Hole, Wyoming, I could not help but look around and wonder why there were so many cattle grazing on federal property. Whose cows were they? Did the owners pay the government for use of our land for their personal gain?

As we entered a downtown diner, I was determined to find answers to these questions. I asked the waiter why there were cattle grazing on federal land and whether the owners paid for the privilege. Perhaps he had never heard the song schoolchildren sing, “This Land is Your Land, This Land is My Land,” but if he had, he sure had a novel interpretation. The waiter stopped taking my order, stared at me like the ignorant New Englander that I was, and said, “That is our land.” Maybe he thought I was Canadian-but no, I was proudly wearing my Red Sox hat. Maybe, I thought to myself, that’s just as bad.

The conflict between local control and use of federal land and conservation of said land is not new. In 1981, President Reagan aligned himself with the locals by declaring himself a “Sagebrush Rebel.” The Rebels sought to have federal land transferred to state or private hands, which would enable local residents to use the land for both commercial and recreational purposes, Bostonians and New Yorkers be damned.

The efforts of the Rebels have succeeded. For example, tens of thousands of acres of federal land have been sold in the Las Vegas area over the past ten years, with the proceeds of the sales (now $3 billion) going to a special Treasury account to be spent almost exclusively in Nevada. While some of the proceeds have been spent on purchasing and protecting environmentally sensitive land, much of it has gone to local projects, including parks complete with tennis courts, dog runs and barbecue pits. In layman’s terms, we call it pork.

While I was incredulous at the view of the man in the diner in Jackson Hole, the conflict over the future of the vast lands of the American West represents a conflict between local and national interests that has played out endless times throughout the course of American history. However, for all the conflicts that federalism has caused, we have yet to truly engage in a national dialogue about the continued viability of the federalist model.

Despite the fact that the federalist system emerged during a period where the nation was considered “these United States,” a period in which state identity was more central to citizens’ understandings of their political destinies, the American public, and politicians in particular, seem content to accept federalism as a fact of life, instead of challenging its ability to guide America through the complex problems of the 21st Century. While proponents recite Brandeis’ jingle about “states as laboratories” and opponents cite globalization and the integration of the American economy, this limited intellectual exchange has left both sides unsatisfied for three reasons.

First, the dialogue has not considered the pernicious effect on civil liberties that federalism often enables. Andrew Sullivan of The New Republic argued, “The whole point of federalism is that different states can have different policies on matters of burning controversy – and that this is O.K.”

But is it O.K. to allow for the restriction of fundamental human liberties, such as the right to wed a person of your choice or the right to a lawyer for capital appeals, based on lines drawn in the sand? Some argue that federalism enables states to forge ahead into new civil liberties arenas – gay marriage, for example – and allows other states to emulate their actions when the citizens of the state are ready. However, in the controversial areas of marriage, abortion, the death penalty, right to counsel, and gun control, this has not occurred. In fact, the federalist system has artificially reinforced our differences rather than accentuating our similarities-just as the swaths of red and blue on Election Day persuade us to believe that we truly are a Nation divided.Second, the discussions over federalism rarely take into consideration the psychological effect of local governance in a democratic society. Having grown up in a community in which all of our local affairs were discussed, debated, and decided by Town Meeting, I understand the real effect that proximity to decision making has on the vitality of a democracy. While there are problems which demand national solutions, one of the great traits of federalism is the closeness of the participants to the process. Third, the dialogue seems to forget that the demarcations that separate us are artificial -nothing more than lines drawn in the sand. The federalist system breathes meaning into those lines and makes us imagine life on the other side of the line as different from our life on our side. As I stretched my arms and legs at “Four Corners,” I thought to myself how cool it was to be in four states at once. But at the same time, a group of horses passed by without any fanfare. For them, life simply carried on, one step after another, from Colorado to Utah, Arizona to New Mexico. Maybe the horses have had it right all along, or perhaps the brilliance of the founders truly does resonate today. What seems undeniable, however, is that we need to take on the tough conversations, challenge our assumptions, and ask questions about the very structure of the American system.

It is all too easy to assume that changing the federalist system is a pipedream. Yet who could have imagined that the thousands of city-states which formed much of Europe prior to the Treaty of Westphalia in 1648 would one day become a European Union, with a common currency and no national boundaries. In the end, the heart of democracy is not about a stubborn devotion to an ancient structure, but rather a consistent dedication to engage in the great struggles of a free society.

Andrew L. Kalloch is a 2L.

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