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Recent state statutes and constitutional amendments challenging federal health care legislation and other federal laws have attracted significant attention, both from critics who view them as nullification acts that are inconsistent with the Supremacy Clause and from some supporters who have been equally willing to embrace the nullification label for the purpose of defending such legislation. Upon closer examination, it becomes possible to view these measures as falling short of invoking the clearly repudiated doctrine of nullification and as capable of contributing under certain conditions to safeguarding federalism principles. An analysis of these recent assertions of state sovereignty - whether regarding health care, guns, drivers' licenses, or medical marijuana - can contribute to a better understanding of the range of opportunities for states to wield influence in the U.S. federal system by showing that state statutes challenging federal law can play a role, alongside of, and occasionally in place of, traditional mechanisms by which states can advance their interests in the national political process.

We should value the role that cities and states play in our democracy no matter what our politics. Uncooperative federalism may sound antithetical to certain legal values, but it's not antithetical to democratic ones. It is good to have a source of friction, dissent, and debate inside the behemoth we call the "Fourth Branch." Moreover, federal dependence on states and localities creates incentives for moderation and compromise. Just ask President Obama, who had to compromise a great deal to bring Obamacare to the red states. President Trump may not have to cooperate with Democrats on the Hill, but he's going to need the support of blue states and cities if he wants to get things done.

We should also value spillovers. To be sure, it is uncomfortable to recognize that we are all sometimes forced to live under someone else's law. But there are many democratic virtues associated with spillovers. For example, in today's heated political environment, state officials lack incentives to compromise with those from the other side. But when a blue policy spills over into a red state (or vice versa), legislators can't ignore the opposition. They must reach across state (and party) lines to fix the problem. Spillovers thus force state and local officials to do what they are supposed to do: politic, find common ground, and negotiate a compromise that no one likes but everyone can live with.

As Republican gubernatorial and congressional candidates seek to ride the red wave into this year’s election cycle, one issue has been conspicuously absent from the discourse: the dramatic erosion of state sovereignty under Joe Biden’s presidency. If the coronavirus pandemic has taught us anything, it is that we must fight for the basic principle of federalism so that states may continue to operate as separate and distinct laboratories of democracy. Put simply, our constitution contemplates the need for Americans to be able to flee Gavin Newsom’s oppression and seek asylum with  in the free State of Florida.

But Biden’s federal government aims to cancel “voting with your feet” by imposing inescapable federal edicts on matters that the Constitution leaves to the states. Quelling red-state rebellion appears to be the president’s motive. But so far, the Republican response to an overweening executive has been underwhelming.

In 2001, pursuant to the CSA, Attorney General John Ashcroft promulgated an Interpretive Rule that would have prohibited doctors from prescribing regulated drugs for use in physician-assisted suicide, despite an Oregon law that permits the practice. In Gonzales v. Oregon, the Supreme Court sustained a challenge to the Interpretive Rule, in part because it trampled on state power. 66 The Court spoke the language of dual sovereignty, noting that "the structure and limitations of federalism" allow the states "'great latitude under their police powers"' and that, respecting this, the CSA "manifests no intent to regulate the practice of medicine generally."' 6' But while the Court spoke in the cadence of sovereignty, the logic of its decision turned on the level of integration between state and federal enforcement. As the Court stated, "The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States' police powers."' ' 68 Because of this reliance, the states were permitted to regulate despite a comprehensive federal law.

American federalism today is a highly institutionalized mix of dualism, cooperation, and coercion that makes it hard for presidents to alter. Long-term trends point to more centralization and polarization, even while states and localities remain independently innovative on many fronts. President Donald Trump, who has never publicly tweeted or spoken the word “federalism,” will not reverse those trends.

Trump’s biggest impact to date on federalism was the Tax Cuts and Jobs Act (2017), which capped at $10,000 the amount of state and local taxes taxpayers can deduct from their federal income-tax liability. The uncapped deduction dated back to 1862. The cap adversely affects taxpayers in high-tax Democratic states such as California more than those in lower-tax Republican states.

Otherwise, without authorization, to conform with the proposed solution, states will push uncooperative federalism. "Uncooperative federalism occurs when … states implementing federal environmental law use that power to push federal authorities to take a new position" and generally, in practice, when "states use their power as federal servants to resist, challenge, and even dissent from federal policy." Although the Supreme Court consistently condemns commandeering and favors preemption, proponents of uncooperative federalism insist that the Court is wrong and "would push the Court to tolerate a degree of conflict between such laws and their federal counterparts" along with "greater federal-state integration." Therefore, although the Supreme Court has not yet approved this theory, uncooperative federalism provides a way for states to continue to push the proposed solution to increase renewable energy sources.

B. Standing to Assert Sovereign Interests: Preemption & Cooperative Federalism

Preemption and cooperative federalism cases concern a very different sort of interest: a state’s sovereign interest in enforcing its laws and defending them against federal encroachment. Yet in these cases, too, states have faced relatively few difficulties in establishing standing. The Supreme Court has stated that “a State clearly has a legitimate interest in the continued enforceability of its own statutes.”205 Federal courts regularly entertain state suits challenging federal limits on state sovereignty.206 And as a normative matter, various commentators consider a state’s capacity to litigate state prerogatives under cooperative federalism statutes or in the face of federal preemption as essential to its ability to exercise self-governance within the nation’s federal system.207

State and local governments are arguably seen as representing the U.S. government abroad in a more official capacity than U.S. non-state actors. The governments of these localities are democratically elected and so it is more likely that they will be seen as acting on behalf of the American people. Additionally, the federal government generally has a greater ability to control the actions of these localities than non-state actors. Therefore, there is a greater chance that nonintervention by the federal government to stop offensive activity will be seen as federal endorsement of such activity.

Such logic though should caution against court intervention in these cases rather than encourage it. If localities’ actions damage U.S. foreign policy interests, the federal government can easily preempt the state or local policies in question. Further, with the world’s increased interconnectedness, it is more likely that if a foreign government takes offense to a locality’s policy it can discriminate between the policy of the locality and the policy of the federal government.155

The second reason it is advantageous to examine the NGA rather than individual governors is that a number of factors suggest that governors would be more effective in securing state-friendly policies for the states at large if they worked together. For example, governors are responsible for handling many of the federal funds that are granted to the states. Thus, they actively lobby Congress for policies that are favorable to them and their states, and it would make sense for governors to take a collective approach to such lobbying efforts. Obviously, the congressional delegation from Texas is unlikely to be swayed by the preferences of the governor of North Dakota, save for ideological or partisan reasons. In contrast, a united front by all governors—the most powerful policy actors within the states, and the central managers of federal funds flowing to the states—is more likely to gain the attention of all key federal policy actors.

However, the effort necessary to align the governors introduces a classic collective action problem (Olson 1965) that is somewhat distinct from those faced by other interest groups. Clearly, it is difficult to achieve unanimity among all governors on every issue that comes before them. Therefore, the NGA provides a place for governors to aggregate their policy preferences in a singularly stated policy position that, ideally, represents the interests of the governors and the states and provides the solution to the collective action problem that the governors face. Thus, the NGA is even more important to study because it provides the tools that governors use to organize their activities so that they can work together for maximum effectiveness.

Current accounts portray President Obama’s tenure as dominated by executive policymaking and vigorous challenges from the states. We argue that such accounts overlook how federal–state collaboration has been critical to achieving Obama Administration ends. Partisan polarization has gridlocked Congress and made the President dependent on the states to advance his central policy initiatives. As a result, these initiatives are both more responsive to state demands and more bipartisan than they might appear. After exploring tools by which the President works with the states, we discuss implications for federalism, the separation of powers, and partisan polarization. In particular, the state role in shaping federal regulation raises the possibility that states are both aggrandizing and checking presidential power.

If popular reports and political attacks are any guide, President Obama’s second term has been marked by presidential policymaking and sharp state opposition. With Congress incapacitated by polarization, the President has turned to administrative action to achieve his goals, pushing his agenda on the nation under a justificatory “We Can’t Wait” mantra. Meanwhile, states have led the opposition to such executive action. Governors refuse to participate in Administration initiatives, and state attorneys general sue the federal executive branch for overreach in a variety of areas.

But if progressives can simply look outside the Beltway, they will find that they still have access to one of the most powerful weapons in politics: federalism. Using the power they wield in states and cities across the country, progressives can do a good deal more than mourn and obstruct. They can resist Washington overreach, shape national policies, and force the Republicans to compromise. Cities and states have long been at the center of the fight over national values. And it’s time progressives recognized that federalism isn’t just for conservatives.

Unfortunately, the moment one mentions federalism many progressives stop listening. The language of “states’ rights” has an ugly history, invoked to shield slavery and Jim Crow. Federalism’s checkered past led political scientist William H. Riker to remark in 1964 that “if one disapproves of racism, one should disapprove of federalism.” Even today, many progressives think of federalism as a parochial anachronism, better suited for stymieing change than for effecting it. But they are making a mistake. This is not your father’s federalism. These days, state and local governments are often led by dissenters and racial minorities, the two groups progressives think have the most to fear from federalism. And this has allowed them to not only take advantage of the enormous power that federalism confers within their own cities and states, but to affect national debates, influence national policy, and force national actors to the bargaining table. Their success shows that federalism is a neutral and powerful tool for change, not an intrinsically conservative quirk of U.S. government.

As Varner admits, the general maneuver at play here was used by Bentham, Mill, Sidgwick and just about every defender of utilitarianism since. It is the base for most of the standard moves utilitarians make to get around the standard objections to the theory. Suppose you could save three people with failing organs by killing an innocent person and harvesting his organs to save the first three. Wouldn’t utilitarianism require that? So goes the standard test case. And here goes the standard response: Only if you are prepared to ignore all of the disutility generated by a standardization of this practice along with the routine training of medical professionals to think the practice is morally required. Without the assumption of such ignorance the practice could never be even imagined as felicitous. So it would go with a long list of other counterexamples. Is it OK to frame an innocent person if doing so would stop a crime wave? Is it OK to drown your Aunt Bea in a bathtub in order to secure her inheritance and then do good with it? Is it OK to publicly torture prisoners for the amusement of the sadistic masses? In each case the utilitarian is likely to respond by pointing out that justifying any of these things would entail setting up a world full of motives, incentives, habits and virtues that would be— from a utilitarian point of view—perverse.

What is the relationship between empathic concern and utilitarian tendencies? Some work has suggested that deontological—but not utilitarian—tendencies are related to increased empathic concern (Choe & Min, 2011; Conway & Gawronski, 2013; Gleichgerrcht & Young, 2013; Patil & Silani, 2014). Yet on theoretical grounds, such findings are puzzling, given that empathy has been claimed to be a central psychological source of utilitarianism (Hare, 1981; Smart & Williams, 1973). However, once we take into account that these prior studies all used sacrificial dilemmas as a measure of utilitarianism, the discrepancy can be explained. Such dilemmas focus exclusively on the negative dimension of utilitarianism, and specifically on willingness to cause harm for the greater good. If one considers killing one person to save five others, a stronger empathetic response is likely to be an obstacle to endorsing such instrumental harm. By contrast, the historical tie between utilitarianism and empathy is most plausibly related to utilitarianism’s positive aspect, that is, its impartial concern for everyone’s welfare. It is therefore likely that the previously found negative relationship between empathic concern and utilitarianism may have been driven entirely by instrumental harm, rather than impartial beneficence.

The use of sacrificial dilemmas to study the contrast between utilitarian and deontological judgments has dominated research in moral psychology. But although the psychological source of this major ethical dispute is of great interest, sacrificial dilemmas are a limited tool for studying proto-utilitarian tendencies in the lay population (Kahane, 2015; Kahane et al., 2015; Kahane & Shackel, 2010). In this paper we have introduced the 2D model of utilitarian psychology, a new theoretical framework for studying such tendencies. The 2D model treats utilitarian moral decision-making not as an all-or-nothing category but as a matter of degree, and as involving two largely independent ‘positive’ and ‘negative’ dimensions. On this basis, we developed the OUS, a new scale that is both philosophically rigorous and empirically driven, and which attempts to address concerns about sacrificial dilemmas and existing scales. Our preliminary application of the scale already demonstrates how the distinction between impartial beneficence and instrumental harm can help to clarify the relationship between a utilitarian moral outlook and a range of other psychological constructs and measures while generating important new avenues for further research. Importantly, our results strongly suggest that, in the context of the lay population, utilitarian decision-making does not constitute a unitary psychological phenomenon.

The division between impartial beneficence and instrumental harm may also have important practical implications. Ethicists who wish to promote wider acceptance of utilitarian moral approaches in the general population may need to divide their efforts. Those individuals who are more likely to endorse instrumental harm, or generally be willing to dismiss or discount traditional moral rules, may at the same time be indifferent—or even hostile—to the overarching moral aim of impartially maximizing the good of all sentient beings. Conversely, drawing public attention to the negative side of utilitarianism—one upshot of the widespread identification of utilitarianism with sacrificial solutions to trolley dilemmas in current moral psychology—may do little for, and even get in the way of, promoting greater moral impartiality. Singer’s session on effective altruism at Victoria University drew those who were excited by the idea of impartial beneficence—but also a group of outraged protestors repelled by instrumental harm. To the extent that the positive aim of utilitarianism has greater moral priority, utilitarians would be advised to downplay the negative component of their doctrine and may even find a surprisingly pliant audience in the religious population.

Recent research has relied on trolley-type sacrificial moral dilemmas to study utilitarian versus nonutilitarian modes of moral decision-making. This research has generated important insights into people’s attitudes toward instrumental harm—that is, the sacrifice of an individual to save a greater number. But this approach also has serious limitations. Most notably, it ignores the positive, altruistic core of utilitarianism, which is characterized by impartial concern for the well-being of everyone, whether near or far. Here, we develop, refine, and validate a new scale—the Oxford Utilitarianism Scale—to dissociate individual differences in the ‘negative’ (permissive attitude toward instrumental harm) and ‘positive’ (impartial concern for the greater good) dimensions of utilitarian thinking as manifested in the general population. We show that these are two independent dimensions of proto-utilitarian tendencies in the lay population, each exhibiting a distinct psychological profile. Empathic concern, identification with the whole of humanity, and concern for future generations were positively associated with impartial beneficence but negatively associated with instrumental harm; and although instrumental harm was associated with subclinical psychopathy, impartial beneficence was associated with higher religiosity. Importantly, although these two dimensions were independent in the lay population, they were closely associated in a sample of moral philosophers. Acknowledging this dissociation between the instrumental harm and impartial beneficence components of utilitarian thinking in ordinary people can clarify existing debates about the nature of moral psychology and its relation to moral philosophy as well as generate fruitful avenues for further research.

Cogent though these various critiques are in their own terms, it seems to me that they unduly homogenize and simplify different forms of interest in and inquiry into trauma. While it is true, of course, that trauma research does not in and of itself lead to political transformation, I would argue that a trauma theory revised along the lines I have suggested is not destined to serve as the handmaiden of the status quo or a mere academic alibi for the indulgence of voyeuristic inclinations. On the contrary, it can help identify and understand situations of exploitation and abuse, and act as an incentive for the kind of sustained and systemic critique of societal conditions called for by Berlant and Brown. In fact, the expanded model of trauma I have proposed, based on the work of Laura Brown, Frantz Fanon, and others, bears a close resemblance to the model of suffering that Berlant puts forward as an alternative to the (traditional) trauma model, which she finds inadequate: "a model of suffering, whose etymological articulation of pain and patience draws its subject less as an effect of an act of violence and more as an effect of a general atmosphere of it, peppered by acts, to be sure, but not contained by the presumption that trauma carries, that it is an effect of a single scene of violence or toxic taxonomy" (338). Berlant's observation that "the pain and suffering of subordinated subjects in everyday life is an ordinary and ongoing thing that is underdescribed by the (traumatic) identity form and its circulation in the state and the law" (344) is perfectly in line with the argument I have presented in this book.

That trauma research can act as a catalyst for astute political analysis and meaningful activism would seem to be borne out by the [END PAGE 126] development in Fanon's writing, from Black Skin, White Masks, which describes the psychological impact of racial and colonial oppression, to the overtly political The Wretched of the Earth, which confronts the source of the mental strife he saw in the clinic.3 Since Douglas Crimp's plea for "[m]ilitancy, of course, then, but mourning too: mourning and militancy" (18) in relation to the AIDS movement back in 1989, several scholars have argued that an interest in issues of trauma, loss, and mourning is in fact compatible with a commitment to radical activism. A desire to make visible the creative and political-rather than pathological and negative-aspects of an attachment to loss is the thread that binds together the essays gathered in David Eng and David Kazanjian's volume Loss: The Politics of Mourning (2003), which seeks to "extend[] recent scholarship in trauma studies by insisting that ruptures of experience, witnessing, history, and truth are, indeed, a starting point for political activism and transformation" (10). Eng and Kazanjian see their collection as moving "from trauma to prophecy, and from epistemological structures of unknowability to the politics of mourning" (10). As one of the contributors, Ann Cvetkovich, puts it, trauma can be "the provocation to create alternative lifeworld’s" ("Legacies of Trauma" 453).

"We don't do body counts," says America's soldier-in-chief, Tommy Franks. That's a damn shame.

During the Vietnam war, the body count was served up every day on the evening news. While Americans ate dinner, they watched a graphic visual scorecard: how many Americans had died that day, how many South Vietnamese, and how many Communists. At the time, it seemed the height of dehumanized violence. Compared to Tommy Franks' new way of war, though, the old way looks very humane indeed.

A substantial proportion of replications in recent large-scale efforts have failed to support the original finding (Nosek et al., 2022). Less than 40% of 100 replications from three top psychology journals were considered successful across a variety of criteria (Open Science Collaboration, 2015). Likewise, 13 of 21 social science experiments published in the journals Nature or Science were interpreted as replicating successfully based on observing statistical evidence (p < .05) in the same direction as the original study (Camerer et al., 2018). Using similar criteria, the “Many Labs” projects conducted high-powered replications of non-randomly sampled studies, yielding variable rates of success: Many Labs 1 (Klein et al., 2014): 10/13, Many Labs 2 (Klein et al., 2018): 14/28, Many Labs 3 (Ebersole et al., 2016): 3/10, Many Labs 5 (Ebersole et al., 2020): 2/10. There are many possible contributors to failures to replicate, including publication bias or p-hacking in original research, unidentified moderators that differ between the original and replication, and failures to effectively implement the replication studies. Shortcomings in implementation could occur by failing to transfer knowledge of key features of the study methods to replication teams.

We sought to evaluate whether involving original authors in selection and design could improve replication success. To do so, we selected an important theory that is also considered sensitive to the procedures necessary to elicit its effects: Terror Management Theory (TMT; Greenberg et al., 1986, 1994). TMT considers the psychological consequences of being reminded of one’s impending death. This topic has spawned hundreds of publications, some with more than 1,000 citations. TMT states that as humans evolved self-awareness, they also came to know that their death is inevitable. To avoid preoccupation with thoughts of death or feelings of meaninglessness, one must manage the potential terror caused by this knowledge (Becker, 1973, 1975). Greenberg, Pyszczynski, and Solomon (1986) proposed that self-esteem is the buffer to these intrusive thoughts, and that the purpose of self-esteem is to manage terror related to mortality. TMT has been applied to understand human activities such as religion (e.g., belief in an afterlife grants literal immortality, alleviating mortality terror; Jonas & Fischer, 2006), cultural identity (e.g., belief in being part of a greater good that will persist after death; Greenberg et al., 1990), and inter-group conflict (Burke et al., 2010). TMT experts also indicated that there was substantial nuance required in implementing a successful TMT study, and at least one doubted it could be captured in a “Many Labs” style project at all. These nuances include how the experimenter delivers the experimental script (tone, manner), precise design of materials, accounting for contextual details, and other aspects which were refined over years. However, there has never been a systematic investigation of the replicability of TMT findings.

The basic idea of terror management theory is that humans are aware of their own mortality and that thoughts about one’s own death elicit fear. To cope with this fear or anxiety, humans engage in various behaviors that reduce death anxiety. To study these effects, participants in experimental studies are either asked to think about death or some other unpleasant event (e.g., dental visits). Numerous studies show statistically significant effects of these manipulations on a variety of measures.

Figure 1 shows that terror management research has grown exponentially. Although the rate of publications is leveling off, citations are still increasing exponentially.

This qualitative study addressed the different meanings that a death-education project can promote in high schools, showing that students highlighted no harmful effects. Indeed, their responses evinced great motivation and interest in participating in all the discussions and project activities. Students recognised the relevance and value of an open debate about death-related issues to share concerns and anxieties and to know classmates better. Like what has already been described in the literature [21,34,36,51,52], our results show that students perceived these activities as teaching them to appreciate life, grasp the importance of enhancing one’s own existence and enjoy life fully. They also appreciated the possibility of discussing their greatest fear, namely, the death of loved ones, and sharing those thoughts and feelings with others. Indeed, as already shown [36,53], this is the greatest fear that the thought of death evokes. However, their answers were also consistent with previous studies and perspectives that show that the notion of an afterlife can reduce the anxiety that this thought provokes [21,34,54]. The present study does not report any gender differences related to death anxiety, which, instead, were investigated and discussed in the quantitative part of the project [21]. Moreover, the possibility of communicating one’s own difficult emotions produced both a sense of liberation and greater empathy for others, activating the discussion on everyday meanings, from the simplest to the most important existential themes. Furthermore, they reported the experience, giving them the possibility to clarify their own beliefs regarding the representation of death as a passage or as a definitive end. The main advantage of this study is that it highlights the fact that although death is a thought that causes strong anxiety, as demonstrated by TMT, it is also possible to manage such anxiety by directing emotions and thoughts towards culturally significant existential content. Existential reflection, in fact, if guided by relevant content, can transform fear into a search for meaning [43,55], enhancing the relationships between students that, in this research, were activated by the death-education activities.