Photographs by Frank Curran
STATES’ RIGHTS HAS a long and ugly history in this country. The phrase has often served as code for the segregationist Jim Crow policies that southern states clung to in the face of federal pressure in the 1950s and ’60s. It made progressives wary of a bigger role for states in our system of federalism, and they reflexively supported a strong national government. But that’s an outmoded way to think about the balance between state and federal power, says Yale legal scholar Heather Gerken.
Today’s much more muscular federal government has plenty of power to protect racial minorities and other groups, she argues. What’s needed is the political will to do so. That can come at the federal level. But lots of the pressure these days to adopt progressive policies, says Gerken, comes from efforts that start at the state or even municipal level.
Consider the 2015 US Supreme Court decision legalizing same-sex marriage or the Affordable Care Act, which greatly expanded access to health care coverage for Americans. Both grew out of the proving grounds of state policy in Massachusetts, and are important examples of what’s been dubbed “progressive federalism,” an embrace of state-level power by the left that Gerken has been pushing for more than a decade.
National buy-in is needed to enshrine policies at the federal level, says Gerken, but the road to those changes often runs through city halls and state capitols. “Local decisions can serve as a much-needed catalyst for national debates,” she wrote in a 2012 essay in the journal Democracy. “Local politics don’t undermine national politics; they fuel it.”
It’s an idea that upends conventional thinking that the federal government is the backstop for maintaining progressive policy. Gerken was used to getting pushback from progressives when she argued that state and local government were the places to advance their cause—or to do battle against federal policies they oppose. The election of Donald Trump has gone a long way toward helping her make the case.
“I find that progressives are much more attuned to the argument in recent months, for reasons that you might imagine,” she noted wryly at the national convention in June of the American Constitution Society, a liberal legal organization. As one of the leading thinkers on progressive federalism, Gerken’s ideas are providing the framework for battle for those opposing Trump and the Republican takeover in Washington.
Signs of progressive federalism are everywhere these days, from declarations by mayors that they won’t cooperate with crackdowns by federal immigration authorities to the alliance formed by several governors, including Charlie Baker, pledging to honor the commitments of the Paris climate accord, despite Trump’s announcement that the US would withdraw from the agreement.
Gerken doesn’t just talk the progressive federalism talk from the ivory tower. She oversees a legal clinic that works to demonstrate its power on the ground to influence broader national policy. In April, the San Francisco Affirmative Litigation Project, a partnership between Yale Law School and the San Francisco city attorney’s office, helped win a temporary nationwide order from a federal judge that blocks an executive order Trump issued in January to hold back federal aid to communities that limit their cooperation with immigration authorities.
Gerken’s work on the role of policy-making at the state and local level also extends to a view of politics and power that differs from that of some other liberals. She faults the idea of simply calling for governing bodies or institutions to mirror the diversity of society, arguing such arrangements “relentlessly reproduce the same inequalities on every decision-making body that exist everywhere.”
Gerken says state and local government have been the places where racial minorities or other “dissidents” have been able to wield actual power, not simply have their voices heard.
“In place of what some call the ‘politics of presence,’ we have the politics of power. In place of the dignity of voice, we have the dignity of decisions,” she wrote in her Democracy essay.
While Gerken sees great opportunity for progressives who use the tool of federalism, especially under the current GOP hold on federal power, she says “federalism does not have a political valence.” Conservatives can also engage and push their agenda at the state and local level, something that Gerken says makes for healthy debate. “If progressives are simply looking for guaranteed wins, it’s not decentralization that they should worry about—it’s democracy,” she wrote.
Gerken, whose early work focused on election law, is a lively conversationalist and is refreshingly down to earth for someone now at the pinnacle of legal scholarship in this country. She clerked after law school for US Supreme Court Justice David Souter and then spent several years in practice. She started her academic career at Harvard Law School in 2000. In 2006, she joined the faculty at Yale. In February, Gerken was named dean of its law school—the first woman to hold the position—putting her in the top post at what is often ranked the country’s top law school.
A high-energy, ambitious multitasker, Gerken has supplemented her teaching, speaking engagements, and prodigious output of legal scholarship with a decidedly different kind of writing. Several years ago, she started writing vampire novels for her daughter, Anna. Gerken, writing in the New York Times in 2015, when Anna was 12 years old, described the unpublished novels as an effort to protect her daughter “from the future onslaught of hormones, heartbreaks, and house parties.” Anna is cast in the stories as the strong heroine “in the hope that she will feel the tug of her own heroism inside her,” Gerken wrote. Next up: Novels for her son, who has requested a focus on baseball and zombies. It is exhausting just listening to Gerken describe how she finds time for her sideline work as a fiction writer.
Gerken was generously accommodating of an interview request, but it took some creative scheduling to work it into her packed calendar. We spoke by phone in mid-June as she was being driven by car service from Hartford, where she had just delivered a talk to the Connecticut Bar Association, back to her office in New Haven. What follows is an edited transcript of our conversation.
COMMONWEALTH: I’ll start with what I’m sure is often one of the first questions put to you about the idea of progressive federalism, and that is, hasn’t stronger national power often been the last defense for vulnerable groups and minorities, while states’ rights—the term alone conjures up certain ugly images—has been identified with some of the worst chapters in our history?
HEATHER GERKEN: That is the old understanding of federalism. But this is not your father’s federalism anymore. There are two crucial differences between our father’s federalism and today’s federalism. The first is that if the federal government wants to regulate to protect minorities, it can. Despite the best efforts of the Rehnquist and Roberts courts, the federal government retains plenty of power to play its traditional role of protecting racial minorities if it wants to do so. The problem these days isn’t that the law blocks those efforts; it’s that our politics blocks those efforts. The second key difference is that nowadays an enormous amount of the work on equality, an enormous amount of the work pushing forward racial progress, is happening at the state and local level. If you want to continue those efforts, if you want to build strong national equality norms, you have to start with the states and localities, because that’s where the conversation is now. If you think about policing, if you think about minimum wage efforts, if you think about almost any piece of the equality project [the goal of equality, broadly speaking], it’s happening now at the state and local level. And that is the key thing about today’s federalism as opposed to your father’s federalism. As the same-sex marriage movement makes really clear, if you want to build a national movement, you have to start by building state and local ones first. So it would be foolish for progressives who care about those issues to ignore the important work that’s being done, even if their aim is national politics and national power and national norms.
CW: Can you settle one terminology and language issue that keeps bothering me. Alexander Hamilton was a founder of the Federalist Party but he was a proponent of a strong national government, and Jefferson was the decentralization advocate of what we now seem to call federalism.
GERKEN: As someone who is a nationalist in the spirit of Alexander Hamilton—and by that I mean a New Deal nationalist—it is perfectly plausible to imagine the states and localities playing an important role in a national democracy. We oftentimes think that it’s a one-way ratchet—you have to be for or against state and local power. The right way to think about it today is that states and localities are part of a thriving national democracy, and they can be the tools for achieving centralization. That’s the part that people have the hardest time thinking about. But decentralization can be a tool to achieve centralization. If you just think about the same-sex marriage movement, why did we get a national rule? We got a national rule because we worked it out in states and local governments first. Why do we have Obamacare? Because San Francisco and Massachusetts began experimenting with the kinds of health care programs that Obamacare eventually emerged as. The key to remember is, you can be a nationalist, and you can still think we don’t want to centralize everything. You can even think we want to centralize many things, but still think that states and localities play an important role in working through that process.
CW: Shortly after the election, Mike Pence went to a performance of Hamilton on Broadway after which the cast pleaded with him to “work on behalf of all of us.” There was some talk about the irony of the scene, since Trump and Pence are now in the role of the Hamilton—they’re part of an effort to assert strong national policy on a range of issues.
GERKEN: It’s true that Republicans have often been more clearly associated with federalism. But both sides are fair-weather federalists. Both sides will, depending on the politics of the moment, prefer state or national power, depending on where they’re in control. People ought to have a more enduring commitment to federalism for democratic reasons—that’s the aim of my research agenda.
CW: It’s that old saying that where you stand depends on where you sit?
GERKEN: Exactly. But my hope is to give people like me—who believe in a national politics and a national democracy and national norms—reason to think that it’s still possible to think that states and localities are important.
CW: How did this subject become the focus of your work. I read one account several years ago that said a lot of your thinking about this almost came to you as a sort of epiphany as you were listening to a lecture by Cass Sunstein, who was then at the University of Chicago and is now at Harvard. Was it really that sudden?
GERKEN: Here is how I would describe it. I started out as an election law scholar. And election law is a place where you use majority-minority institutions in order to empower racial minorities and political outliers. And then I realized that the one other part of the academy where that was true—where majority-minority institutions were used as a tool of empowerment—is federalism. It’s the only other intellectual arena to think about majority-minority institutions in a serious way. But the difference is, whereas in election law majority-minority institutions are thought to empower racial minorities and political outliers, in federalism those things aren’t much discussed. And I realized that there was actually a lot of work to do, particularly if you think about federalism as including cities and localities and juries and all the organizations that come from looking at “federalism all the way down.” If you think about all of those institutions, you realize that actually racial minorities and political outliers enjoy majorities all over the country, the same kind of majorities that an election lawyer would contemplate as sources of power. So that’s where the work began. Cass Sunstein had a different view. His view was that every institution should mirror the population – one dissenter on every decision-making body. My view is that it’s helpful to have institutions that vary in their composition. There’s a form of power that comes from actually having dissenters, not just the one person getting outvoted every time, but dissenters with the ability to put their ideas into play. For instance, when [San Francisco mayor] Gavin Newsom started marrying same-sex couples, where he was a dissenter, he was also able to make a policy decision. That’s a different kind of dissent. I call it “dissenting by deciding.”
CW: So that’s the distinction you talk about between “voice” and “power”? In your 2012 essay in Democracy, you wrote, “We expect dissenters to speak truth to power, not with it.”
GERKEN: That’s exactly right. Speech is really important, but social movements also know that it’s really important to speak truth with power.
CW: “Second-order diversity” is the term you use to describe that.
GERKEN: Usually, when you say diversity, people have an image in their head—mirroring. When Bill Clinton said he wanted a cabinet that would look like America, he wanted it to resemble in its demographics the entire population of the United States. That’s first-order diversity. When I think of second-order diversity, I imagine what we have in the rest of the country—institutions that vary dramatically in their composition. Some are black majority, some are Catholic majority, some are Polish majority. You find these institutions everywhere. I look at these as sources of empowerment. If every institution mirrored the population, then we would relentlessly reproduce the same inequalities on every decision-making body that exist everywhere else, and that doesn’t strike me as a particularly good empowerment strategy.
CW: When you wrote about San Francisco issuing marriage licenses before there was really state law authorizing that or you talked about some Texas schools changing their curriculum to teach intelligent design, it gives a picture of something that’s kind of messy, this cacophony of voices and actors. They’re certainly not all necessarily rowing in the same direction. You said in one interview that federalism can look “kind of ugly. It’s not neat and easy.”
GERKEN: I think the worst thing we can do is retreat to our red and blue enclaves and never speak to one another again. The thing about our system is that it ensures that people knock into each other, and that’s, I think, a really helpful thing in the long term for democracy. But it is messy on both sides. One of the things I always say to people is that federalism is for everybody. Everyone needs to suit up and get in the game, and it would be foolish if the system were to tilt one way or the other. Just as progressives are using states and localities to protect immigrants and to protect the environment and to pursue a variety of other causes, so, too, are conservatives using it to change the conversation on abortion or talking about religion in the schools or thinking about gun rights. Both sides are using federalism. The only question is whether you’re going to take advantage of that opportunity.
CW: You wrote recently in a piece in Vox that “federalism does not have a political valence” —a clear liberal or conservative orientation. I can see how that is true over the long term, but doesn’t it take more of a certain tilt depending on the time we’re in or what forces are in power nationally?
GERKEN: It definitely depends on who’s in power nationally because this is interactive. It’s not like the states and localities are just doing this on their own. But what I would say is federalism and localism can be both a tool of change and a tool of preservation—it just depends on how you use them. It doesn’t have a valence even in terms of which direction change goes. Not just between one side or another but whether we change at all. Decentralization can slow down change and it can speed up change, depending on how it’s used.
CW: You’ve been working in this area for more than a decade. A lot of that time was during the Obama presidency—and you served as an advisor in both of his campaigns. So this certainly was not driven by any sense of the moment to a progressive like you that the reins of federal power were being pulled dangerously to the right. Now, however, it seems to be such a different matter. It almost feels like the idea of progressive federalism anticipated the arrival of someone like Trump. Everywhere you turn there are stories touching on that. Bruce Katz from the Brookings Institution had a piece titled, “Why Cities and Metros Must Lead in Trump’s America.” “Liberals are Learning to Love States’ Rights,” was the headline on a Washington Post piece by Charles Lane. “States’ Rights for the Left,” was the headline on a piece by Jeffrey Rosen in the New York Times. Is this the moment for progressive federalism?
GERKEN: Well, I’ve been working on this for 15 years, so I’m clean on this one. I’m delighted to have people come late to the party. And I hope to convince them that this shouldn’t be a short-term commitment because they don’t like the politics of the moment. A commitment to federalism should really be a long-term commitment based on the importance of democratic design. But I will just say, yes, I have a lot more company of late than I did before.
CW: What do you think the Trump election means for this whole effort and for efforts to get people thinking more creatively or maybe differently than they had?
GERKEN: In some ways, the only chance of forcing the administration to compromise is federalism and localism. Right now Donald Trump does not need the votes of any Democrats to get his agenda through Congress. But if he wants to make change in many of the areas throughout the country, the federal government is heavily dependent on the states and localities. If Trump wants to get things done, he’s going to have to get blue states and cities to cooperate with him. You see that already with regard to the battle over sanctuary cities and immigration. You’re going to see it in a bunch of different areas. President Trump may not have to talk to anyone from the Democratic side in Washington, but he will have to talk to people from the Democratic side in California and New York and Massachusetts.
CW: You wrote recently that any federal program that doesn’t touch California or New York or Illinois won’t affect a large swath of the American economy. “That should create a healthy incentive for moderation going forward,” you wrote. When I read that I couldn’t help but be reminded of the famous proclamation by Barry Goldwater that “extremism in the defense of liberty is no vice, and moderation in the pursuit of justice is no virtue.” So what does federalism, or progressive federalism, say to Goldwater? He was certainly a strong states’ rights guy of the kind that was around in the early ’60s. But it seems like federalism today, you’re arguing, is actually a hedge against extremism in a way that’s very healthy and we should be welcoming.
GERKEN: Because this is not your father’s federalism, this is not a federalism where one side or the other gets a trump card. That’s the old federalism. This is the new federalism, in which if either side has a trump card, then—as one other scholar put it—it’s a jack, not an ace. We’re so interdependent on one another that, in fact, neither side can force its agenda on the other. And that’s actually healthy for politics and it comes, I should just emphasize, not from states’ rights embedded in the Constitution, but from politics and administrative interdependence. I think there’s a way in which people always frame this fight as a constitutional question. It’s not a constitutional question; it’s a political one. And the right opportunities for compromise exist when both sides depend on one another to get what they want. In that sense, because this is not your father’s federalism, it’s not Goldwater’s federalism. It’s a very different federalism. And that sort of mutual interdependence really matters if you want people to compromise.
CW: I’m struck that you talk about how a lot of these issues are really playing out in the political realm and that is what shapes the law. I don’t know if there’s a school of legal theory that that is part of, but you seem to not view things through an overly legalistic lens, but instead see how they play out on the ground, and that’s what gives rise to how laws get shaped and made.
GERKEN: The crude phrase to describe that idea is “law on the books” versus “law on the ground.” Lawyers and law professors, and particularly constitutional law professors, like the neatness that comes from having clear lines and trump cards to play and things that are legible because you can read them in an opinion or statute. But when you really look at how federalism works in practice, it looks not like anything that you see in the case law. Our model of federalism is what you read in a case. But when federalism plays out, it’s messy and it’s not easy to trace. But it matters enormously to see how it actually works.
CW: You’ve not spent your entire career in academia. You practiced at some point and you still have a foot in that world through the legal clinic in San Francisco that you co-founded and are the adviser to, a partnership between Yale Law School and the city attorney there. Is that an example of a place that’s doing “federalism all the way down”?
GERKEN: It is, and it’s actually been incredibly helpful to me. Very few law professors run clinics. Very few law professors do anything with state and local law, so it’s been a window for me on a world you don’t often see when you teach at a law school.
CW: How have things played out there on specific issues?
GERKEN: One of the things you see is that law has less to do with the Constitution and more to do with statutes. That is something constitutional law sometimes forgets. My clinic helped win the nationwide injunction [in April] against the [Trump administration’s] sanctuary city order. That was thrilling as a lawyer, but it was also incredibly interesting as a law professor to watch that case unfold. And it perfectly embodied what I’ve been writing about for a long time, which is that if the Trump administration wants to enforce immigration law in the fashion that it wants to, it’s going to have to get states like California and cities like San Francisco to do what it wants them to do. You really see the federal-state interdependence in this context.
CW: You grew up in Massachusetts, and you later spent a number of years teaching at Harvard Law School. Same-sex marriage and health care reform have been frequently cited as two enormous issues that first played out here in Massachusetts but very quickly made their way to the federal level.
GERKEN: Massachusetts is a perfect example of a state that drives the debate, because it’s one of the leaders in moving forward policy. The moment when Massachusetts and San Francisco started issuing marriage licenses to same-sex couples is the moment when that debate changed dramatically. For the first time, you had people who were actually married in front of you. Having those pictures beamed into the televisions of people across the country, forcing people in other states to decide what they thought about those marriages and whether they were going to recognize them or not, it was just a game-changer in terms of setting the agenda. And Massachusetts has done that over and over again across a variety of issues. It’s almost always been at the lead of some of these efforts.
CW: Are we, if not the epicenter, one of the main centers for this idea of progressive federalism?
GERKEN: I would say that. There’s also a part of my work that’s about the participatory dimensions of federalism and localism. That really came through to me because I come from a tiny town, Bolton, that’s run by a town meeting system. When I think about where it is that people can have a chance to influence things, they can do it in cities and towns like that. So it makes a difference in a personal way to people, not just in terms of policies.
CW: Another Massachusetts tie-in to your work seems to be Louis Brandeis. You wrote in your piece in Vox, “Social movements have long used state and local policymaking as an organizing tool, a rallying cry, a testing ground for their ideas.” There certainly seemed an echo in that of Brandeis and his talk about states as laboratories for democracy. But did he have a vision of progressive federalism, or was it just federalism? I don’t feel like he was talking about minority groups or others who are shut out of power.
GERKEN: Progressive meant something different back then than it does now. Brandeis definitely was a progressive of the old type. The thing that’s really different is that Brandeis imagined that there would be 50 laboratories of democracy, each trying to adapt to local circumstances and generate new ideas. But what we, in fact, actually see is there aren’t 50 labs, there are two. One is red and one is blue. They’re highly networked with one another. They are connected in ways that Brandeis didn’t really contemplate, and that’s important if you think about how to encourage innovation, because it’s not happening in the way he thought it would.
CW: And he didn’t have this same conception of pushing authority or control further down. In some ways, the way you talk about it, it’s a matter of demography and math: The smaller the scale you’re operating on, the more chances there are for people who are shut out in the bigger picture to have some actual power. So that wasn’t really on Brandeis’s mind—those ideas, per se?
GERKEN: No, not in the same way that I’m describing here. But these ideas all have roots in those initial conceptions, so you should give him his due.
CW: The Massachusetts House of Representatives has actually formed a working group whose focus is keeping tabs on and reckoning with what’s going on with the Trump administration and how the state might respond. One of the representatives who’s heading up the committee said recently that he was worried that “we might be going to a gunfight with a knife.” You’d probably say he is selling himself and his fellow state legislators short.
GERKEN: I think that sometimes states and localities think so much about how big the federal government is that they forget how much the federal government depends on them.
CW: You’re taking the dean’s position on July 1, and you’re so prolific as legal scholar, writer, and speaker. But you also somehow squeezed in time to write this whole series of vampire novels for your daughter. How did you manage to do that?
GERKEN: I am a relentless multitasker. When I would exercise and listen to music in the morning, I’d make up the story in my head, and then when it was too late at night to send any more email and I was too tired to read anything, I would write the story and then read it to her the next day. That’s how I eventually pieced them together.
CW: You came out with eight or nine novels?
GERKEN: I finished nine and I’m now working on my son’s first book, which he specified had to be about baseball and zombies.
CW: I read a piece you wrote in the New York Times about this and you said you were trying to weave into the vampire stories for your daughter “every bit of practical wisdom” that you have. You said that included how to have a male best friend and also how to be a “high-functioning introvert.” That last quality is something that you list about yourself on your Twitter profile. How do you manage that, given all the extrovert demands on your work, which I guess will only increase as you take on the dean’s role?
GERKEN: My greatest fear is a cocktail party. I don’t like people in the aggregate, but I like my people. Much of my work is for my people. It’s my students and my faculty and my alumni—those are people I feel in community with. Interacting with them is not hard. It’s the random strangers out in the world that I find somewhat tiring. One of my best friends is a low-functioning extrovert, so we make a good pair together.
CW: I was going to ask about the books for your son, who asked for novels on baseball and zombies. Given that you grew up here, are the Red Sox going to figure here?
GERKEN: They are, indeed. In the first book, the hero gets to relive the first season when the Red Sox won the World Series. That’s his reward for fighting zombies.
CW: Their first win back in the early 1900s? Or are you talking about in the recent era, in 2004?
GERKEN: No, the recent one. My knowledge of baseball is so limited I can barely master the recent era. It’s a little bit of work for me. I have to do research on both baseball and zombies to write this book properly.
CW: And that’s on top of your legal research.
GERKEN: Exactly. But it’s a little bit easier. This stuff can be Googled.