It's Time to Rethink the Idea of "States"
PLUS: A proposal to make face masks AND scarves part of your school's dress code
I’ve been catching up on John Oliver recently so I missed a short segment from earlier this summer about voting rights. It featured a brief clip of Republican Senator Susan Collins of Maine giving a floor speech in opposition to S.1, or the For the People voting rights act Republicans filibustered near the end of June. In her speech, Collins said
S.1 would take away the rights of people in each of the 50 states to determine which election rules work best for their citizens.
As Oliver pointed out on his show, yes, that’s kind of the point since some states have recently been making changes to their election laws in response to false accusations about fraud in the 2020 election. These changes have the potential to disenfranchise a fairly large number of people, particularly poor people and people of color. There’s also a history in this country of states unjustly restricting the right to vote—again, particularly when it comes to people of color—and Congress has typically been the political authority that has expanded and protected a citizen’s right to vote.
I will admit Collins was correct when she said S.1 was a flawed bill. It could definitely be improved as a vehicle for addressing the new spate of laws passed by Republican legislatures (although it’s an open question whether such a revised bill would still garner Collins’ support.) Thankfully, there are a few bills the House is working on right now that may do just that. Also, if the federal government is going to establish a uniform set of national voting standards, it would be a good idea to iron out exactly what those standards should be rather than simply react to what a bunch of Republican-led states are doing. For example, I would argue voter ID laws are not inherently bad, just that if Congress decides to allow for them that they need to be enforced in a way that doesn’t end up unduly disenfranchising law-abiding voters. Finally, it’s important to note there are some predominantly Democratic states along the east coast that have bad voting laws, too, so a good national voting rights act could go a long way toward cleaning up a national problem that cuts to the core of what it means to live in a democracy.
But we can get into all that another time. There’s another issue I want to get at that isn’t discussed much. In her speech, Collins bragged about how Maine, even though the state’s election laws require voters to directly request absentee ballots and don’t allow for early voting, among other things, still had one of the highest voter turnout rates (71%) in the 2020 election. This was proof to her that Maine knows how to successfully conduct elections, which, frankly, is hard to argue with. Good job Mainers!
What I want to focus on instead is why Maine gets to establish election laws in the first place. You may reply, “Because it’s a state, dummy, and yeah, I get it, you think there should be more federal regulation of election laws, you’ve made that point already,” but no, that’s not what I’m getting at. I understand states are allowed to make election laws, meaning that Maine—as a state—gets to make its own election laws. I just don’t understand why, of all potentially definable places within this place called the United States, this place called “Maine” gets to be a state.
I’m serious. What’s so special about Maine that it gets to be a state and do all the things that states get to do?
A defining feature of American government is federalism, which is the division of power between the various state governments and the national government. Federalism in the United States is not really concerned with local or regional governments. Its big focus is on state governments. Beyond the division of powers, though, the spirit of federalism bestows an aura of political significance onto state governments that many people hold sacrosanct and that ends up being reflected in our laws and the structure of our government.
That last point is important because states have been constitutionally significant jurisdictions since the founding of the republic. Areas legally designated as states get to send two members each to the United States Senate. Each state gets to appoint electors to the Electoral College, which is how presidents get elected. States ratify constitutional amendments. The Tenth Amendment (ahem) states that the federal government only has the powers delegated to it by the Constitution and that all other powers, so long as they are not forbidden to the states, are reserved by the states, which amounts to a lot of power. Beyond the Constitution, Congress often allows states to administer federal programs like the Affordable Care Act. In the hierarchy of powers in the United States, the federal government’s power is supreme to those of the states, but within states, the state’s powers are supreme to those of local jurisdictions, which gives states a lot of clout. So, yes, states are pretty darn important in the grand scheme of things.
Despite the major powers that come with being a state, we just kind of take the existence of our current collection of states for granted and haven’t given much thought recently to what sort of places should be classified as states. So yes, it’s not clear to me why the area we identify as “Maine” is significant enough to be considered a state and retain all the constitutional rights and privileges thereof, especially when there are other jurisdictions in the United States that could make equally or even more compelling cases for statehood.
(Before we go any further, I just want to clarify that I’m going to be picking on Maine a lot in this essay. If you’re from Maine, please don’t take it personally. I’m only using your state as an example because your senior senator teed one up for me. Maine is a lovely state. I’ve been there once and only really stayed long enough to be able to check it off my list of states to visit [I’m down to ten] but I’d love to go back, drive up the coast, spend a day in Acadia, maybe catch a Sea Dogs game if they’re in town. I wore their cap back when they were affiliated with the Marlins. Great logo.)
If I were to ask people why Maine gets to be a state, most would probably say the question kind of answers itself. Maine is a state, so it gets to be a state. It was made a state back in 1820, and once you join the club you get a lifetime membership.
But it’s not like there’s some overarching principle that has guided the admission of states to the union. Maine’s a good example of that. Up until its admission, Maine was part of Massachusetts. It didn’t much like being part of Massachusetts, but there are lots of parts of states that don’t like being part of the states they’re in, so that alone shouldn’t be reason enough to make Maine a state. Maine only became a state as part of the Missouri Compromise in 1820, when Congress needed a free state to balance out Missouri’s admission as a slave state. In other words, granting Maine statehood was a convenient way for the nation to avoid an awkward conversation (and a potentially bloody confrontation) about slavery. And all that happened two hundred years ago. (And let’s get even more honest here: Debates about federalism and state’s rights—from slavery to Jim Crow to today’s debates about voting rights—are often actually conversations about race and a state’s right to discriminate or suppress.) My point here is there have been a lot of contingent reasons as to why these places the federal government have deemed states got to be states, and that under different circumstances those places may have never become states.
Additionally, the boundaries of the states are purely political creations. It’s not like any of the states just existed as places unto themselves screaming, “I’m a geographically significant area that deserves its own political autonomy!” (The one exception may be Hawaii, but even there they could have split the islands into two states if they had wanted to I suppose, maybe calling one “Hawaii” and the other “Oahu” perhaps. They did something like that to “Dakota” after all.) Instead, human beings drew some lines on a map, followed a body of water, the crest of a mountain range, or some random line of latitude here and there, and then said, “Hey, that’s a legally-defined place.” And then a few years later they’d do it again; maybe they’d give a place like Michigan the Upper Peninsula in exchange for ceding Toledo to Ohio. Finally, Congress made those lines permanent, called it a state, and now we just think it was always that way.
The thing is, though, no one’s really questioning whether those lines make sense in today’s world. If I told you today that the area of land (as designated by King Charles II in 1682) on the western side of the Delaware River/Bay within a 12-mile radius (yes, radius; that means part of its border will be semi-circular) of the steeple of the old Dutch church in New Castle and extending due south as far as the line of latitude running west from the place Lord Baltimore incorrectly identified as Cape Henlopen remains today a constitutionally significant jurisdiction that sends two senators to the United States Congress, gets three votes in the Electoral College, runs its own Obamacare exchange, and maintains its own National Guard, you might think, yeah, that is kind of weird. But that’s Delaware. I don’t mean any harm to Delaware by singling it out here since I could single out almost any state, but should a place defined in that manner really get the benefits that come with being a state in the year 2021?
But back to Maine. Some might counter my argument by insisting that Maine, regardless of however it became a state, still merits status as a state because a lot of people live there, and any place that reaches such a critical mass of people ought to be able to stake a claim to statehood. That argument doesn’t hold any water, though, because the Bronx isn’t a state. Bronx County, New York, is the twenty-sixth largest county in terms of population in the United States (1,385,108 according to the 2020 census) and the smallest county population-wise to exceed Maine’s population (1,362,359). Yet the Bronx is not a state despite having more people and more professional sports teams (1, and is it a doozy) than Maine (0, unless you count the New England Patriots, but that’s a good argument for why there should be a state called “New England” with Maine part of it.) Heck, even if you just combined the states of Maine, New Hampshire, and Vermont into one state (let’s call it Southwest New Brunswick) it would still have fewer people than the four largest counties in the United States (Los Angeles County, California; Cook County, Illinois [Chicago]; Harris County Texas [Houston]; and Maricopa County, Arizona [Phoenix]). If population mattered (I would argue it should) then we’d have a completely different set of states.
Finally, some might argue Maine is a culturally distinct area that has developed its own unique mores and customs that differ from other jurisdictions, thus justifying its statehood. To which I would again respond, “Umm, have you been to the Bronx?” and add that Maine is not as “culturally distinct” as Mainers may think it is. Maybe Maine once was culturally distinct back in the 1800s, and there certainly are things unique to Maine today, but not so unique that someone who moved there would feel like a stranger in a strange land. Yes, lobsters, but come on: Maine has Walmarts, the same crappy TV shows come on at the same crappy time every night as everywhere else in the country, and despite having some of the best craft beers in the nation, their preferred lager is Budweiser. Even the anxiety of living in Maine translates so well to the national experience that Stephen King can use it as the basis for an unending stream of bestselling horror novels.
In fact, if you want to look at cultural differences in the United States, you’re more likely to find those differences within state borders than across. A rural Illinoisan probably has more in common with a rural New Yorker than they do someone from Chicago, who probably relates more closely to someone from New York City than with an Illinois farmer. Texans consider their capital city so distinct from the rest of the state that they call it the “People’s Republic of Austin,” while (Note: I can’t confirm this) the residents of Austin refer to the outlying rural parts of Texas as the “Province of Immortan Joe,” whose distinct way of life is captured in this documentary. We may want to make the differences between states significant, but the differences within states (in California, for example, between southern California and northern California and the Bay Area and the Central Valley; or in Maryland between—and within—the DC suburbs and Baltimore and the panhandle and the Eastern Shore) suggest many states are not nearly as homogenous as we may assume.
The map of the fifty nifty united states (lack of capitalization intentional) hasn’t changed in over sixty years. That’s actually the longest this country has gone without adding a state to the union. It’s easy to look at that map and take its constituent parts for granted, as if it is the culmination of some ingenious master plan.
Yet while there definitely are historical reasons for every state’s existence, a map of the states today can just as easily be viewed as a hodgepodge of strangely demarcated territories.
Some are enormous; some are tiny. Some have natural, sensible boundaries or are reasonably shaped; others have odd designs. Change perspectives—maybe by shifting to a map showing population density or a cartogram depicting the states by the size of their populations—and it quickly becomes clear the states vary significantly by population and that their current borders make no accommodations for that.
All of this matters because the Constitution allocates a lot of political power to the states. Few have asked recently, however, if that power has been properly distributed, an important question since many of these constitutionally significant jurisdictions designated as states are enclosed within lines that were drawn hundreds of years ago that do not today map onto culturally significant spaces or reflect shifts in population. Just consider how our current configuration of states warps representation in the United States senate. Currently, half of the United States’ population resides in the nine most-populous states, which make up 18% of all members of the Senate. Furthermore, the twenty-one least-populous states—in other words, the least-populous collection of states whose members together could maintain a filibuster—represent 11.2% of the country’s population. Senate politics don’t exactly play out along those lines, but what remains apparent is that states with small populations wield a disproportionate amount of power in the Senate. Meanwhile, the millions upon millions of citizens who live in densely populated areas have little sway.
(And by the way, the argument that the design of the Senate is fine because it protects the interests of rural voters is unconvincing because there’s nothing that says “rural voters” ought to be a protected class. Why not set up a system that privileges the interests of, say, racial or ethnic groups instead, or the interests of lower-income Americans or Americans with school-aged children? Or why not just make Senate representation proportional to population, as I’m pretty sure every state senate currently does?)
So it is definitely worth wondering why some places today still get to be states while other places don’t. The reason we don’t ask that question is because we in this country have a federalism fetish. We celebrate states, give them extraordinary power in our political system, and pontificate on the critical division between national and state governments, but we get so starry-eyed over the system that we fail to ask ourselves if states are the rights arenas for local governance, if our current collection and configuration of states make sense, or if states even deserve the privileged position and powers granted to them by the Constitution anymore. In many ways, “states” are the artifacts of a bygone era, a political creation that may have made sense in the early days of the republic but whose utility wanes with each passing decade. A forward-thinking country would adjust for that.
Photo credits: Neil Freeman, http://fakeisthenewreal.org/reform/ (Top); Maps of the Past; Wikipedia; Wikimedia commons; US Census bureau
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Idea of the Week: Make Masks (or Masks AND Scarves) Part of School Dress Codes
Photo credit: ABC Chicago
There’s growing concern as school is starting again and with the delta variant at large that more kids are going to get sick from COVID-19. It’s been pretty well established that kids tend not to get as sick as adults if they catch the virus, but delta seems to be sickening more kids than the original versions of the virus did. One way to try to keep kids from getting ill would be to have them wear masks in school. Unfortunately, a number of Republican governors like Greg Abbott of Texas, Ron DeSantis of Florida, and Kim Reynolds of Iowa have forbidden schools from issuing mask mandates. Michael Gerson has a powerful column in the Washington Post today explaining why this basically amounts to “sociopathic insanity.” (When it comes to matters of local control and federalism, Governor Abbott loves sticking it to local school boards when it comes to masks but can’t stand the federal government trying to pass a law that would overrule his state’s recently passed election laws.)
The school district in Paris, Texas (about an hour and forty-five minutes northeast of Dallas) may have come up with a way to work around the problem though: Make masks a part of the school dress code. To which I say, “Dang it! I had this idea a month ago and didn’t write about it so now I can’t take credit for it!” But yes, if dress codes are the province of local school boards, then this is potentially a way for schools to protect their kids. And as it turns out, the Texas Education Agency has quit enforcing Abbott’s mask mandate. Perhaps that was motivated by Paris’ actions or the number of other districts in open defiance of Abbott’s order or the sheer number of COVID cases in Texas or the fact Abbott himself has just tested positive, but it’s a welcome development.
Perhaps a governor’s executive order would still trump any provision in a school’s dress code, but it may be worth trolling the governors on this regardless just to make them look like idiots. School boards in states like Iowa or Florida could do this by adding new items to their dress codes and then bring those new provisions up in court when they get challenged. For example, school boards could add provisions requiring students to wear scarves and face masks. In court, I would just say the scarf provision is nothing more than a stylistic preference of the school board (so dapper!) but then haul out all the science justifying the mask mandate and dare a court to throw out the mask mandate while letting my scarf mandate stand. The headline would be great: “Court Rules Schools Can Require Students to Wear Scarves But Not Masks In Accordance With Governor’s Order.” Even if they couldn’t get the mask mandate through, at least they’d have some pretty stylish students. I mean, just look at these kids all decked out in their scarves. Magical.
Thanks for reading.
Exit music: “Shadows of the Night” by Pat Benatar (1982, Get Nervous)