The Vision Project

Cooperation, Albeit Imperfect

Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.


PROFESSOR GEORGE BROWN

Brown, the Robert Drinan, SJ, professor of law, served as interim dean of the Law School during 2010-2011. He is a specialist in the field of federal-state relations and government ethics.


The coronavirus and recent racial uprisings throw a harsh light on our political system. What do they reveal about federal-state relations and government ethics in the US? Let me first focus on federalism. This topic had achieved a new importance during the Trump Administration even before the pandemic and the national debate on systemic racism. People who do not normally trust the states are looking to them to counter national policies that they like even less. Drawing on the immigration field, the phenomenon of “sanctuary cities” is a good example. Of course, those who cheer the states in one context may criticize them in others. That is the ongoing challenge of American federalism.

The response to the coronavirus is a dramatic example of federalism in action. At times, President Trump has seemed to claim excessive powers. At other times, many have wished he would exercise more authority. To the extent there is a void, the governors have stepped forward to fill it. Their actions remind us that states can be vibrant polities, not administrative subdivisions of the national government.  Of course, some states may “get it wrong.” But no one has a monopoly on how to solve this crippling problem. A solution may be evolving through trial and error. Some parts of the national role ought to be clear, particularly when it comes to financial support and fiscal stimulus. In areas where the answers are not clear, it may be better to rely on individual state efforts—Brandeis’s theory of the states as laboratories—than to rely on a one-size-fits-all solution handed down from Washington.

Federalism faces its biggest challenge in attempts to deal with systemic racism. In the area of police reform, we’re seeing initiatives at all levels. Bills are pending in Congress. The President has issued an executive order. Governors have made statewide proposals. Mayors and police chiefs are actively involved. Police operations involve all levels of government. Thus, a high level of intergovernmental cooperation is imperative. As for systemic racism generally, we have traditionally looked to the federal government to take the lead in matters of civil rights. But the problem touches all sectors of American life, public and private. Addressing the problem may go beyond the capacity of federalism to resolve.

As for government ethics, this area always needs attention. In the Bridgegate litigation, the Supreme Court has reopened the question of the proper role of the federal government in policing state and local officials. In Bridgegate (Kelly v. United States), the court reversed the convictions of defendants who had clsoed lanes on the George Washington Bridge for political reasons. Federalism played a key role in the decision. Critics of the Roberts Court were quick to denounce the court as soft on corruption, but the decision was unanimous. It did not hold the defendants blameless, but concluded that the remedies against their conduct were to be found in state law and politics. Subsequent developments in New Jersey have borne out this view.

What short- and long-term opportunities do you see arising from the current crises for a new understanding of moral leadership and the necessity for  cooperation between various levels of government? It is often said that people get the government they deserve. I think that moral leadership is essential, but that it is something that the voters must evaluate and weigh. The media have a big role in helping them do it. I would like to see—on both sides—less cheerleading and more reporting in the traditional sense of the word.

As for cooperation, I think we are seeing it, albeit imperfectly, in the case of the pandemic. There have inevitably been glitches, misunderstandings, and disagreements.  The protests and the broader issues of racial injustice add a new dimension that transcends politics. My hope is that leaders will arise—inside and outside of government—who can crystallize the broad goals of the protests, and maintain and steer the effort to translate goals into action.

What is your vision for a post-pandemic world? What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society? I think the racial issues are more important and intractable than the public health ones. As I suggested, translating a growing national consensus into acts and deeds will not be easy. We must not lose the moment—lest it become just a moment, but we also must not let it generate a monolithic orthodoxy that destroys both good and bad.

There will always be—there should always be—debate. The most important process goal may be restoring civil discourse. President Trump bears his share of blame for its loss. I am deeply disturbed by his attacks on Vice President Biden. They remind me, once more, of  how widespread ageism is. Those on the other side of the cultural divide are responsible as well. The use of argument-ending, vitiriolic epithets such as “racist,” “fascist,” “xenophobe,” etc. is antithetical to civil discourse. Yet any debate over racism is likely to lead to someone’s being called a racist. Traditional values of free speech have a major role to play here.

Overall, I remain optimistic. Madison reminded us that men are not governed by angels. Still, it is possible that today’s crises will lead us to find our own better angels.

Read all faculty Vision Project interviews here.

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