an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As Judith Resnik’s contribution to the “Constitution in 2020” volume makes clear, American federalism has neither a progressive nor a conservative political valence. In Wisconsin’s beautiful statehouse in Madison, one can almost sense the ghost of Robert LaFollette and other early Progressives, who initiated reforms in the states before taking them national. Nor should we forget Henry Adams’s observation that, prior to the Civil War, “there was no necessary connection” between “the slave power and states’ rights. . . . Slavery in fact required centralization in order to maintain and protect itself.” During the Bush years, progressives trained since the 1960’s to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California’s right to go its own way on environmental policy and Massachusetts’ prerogatives to allow gay marriage at home and protest human rights violations abroad. After 2008, progressives will be tempted to shift back to reliance on national power. But what has once turned can turn again, and 2016 might well bring back the “bad old days” in Washington, D.C.
If both conservatives and progressives ought to value state autonomy, how can we preserve it in an age of runaway integration? Many have focused on either reviving constitutional protections for state autonomy—e.g., by interpreting the Commerce Clause in a more limited fashion—or construing federal statutes to minimize preemption of state law. Both are worthwhile endeavors. But the ultimate safeguards of federalism are political. Judicial protections are unlikely to avail much if the States lose the wellsprings of popular support that give weight to their representation in the national political process.
These days, those wellsprings often seem at risk of drying up. It is difficult to imagine many modern Americans choosing, as Robert E. Lee did in 1860, allegiance to their state over allegiance to their country. Today’s citizens are considerably more likely than their Nineteenth Century counterparts to live in multiple states over the course of their lives, and our media and political culture focus relentlessly on national politics. Local communities, moreover, seem generic and unlikely to inspire strong personal attachments. When David Souter left the Supreme Court to return to his beloved New Hampshire, he was considered highly eccentric for his steadfast sense of belonging to a particular place. And why not, when there is a Starbuck’s on ever corner regardless of whether one is in Greenville, South Carolina or Concord, New Hampshire?
States function as effective laboratories when innovative individuals are sufficiently committed to state political communities to press their ideas at that level. And the resulting innovations will be best defended against national pressures for uniformity when voters and politicians feel they have a stake in the state’s autonomy. A decline in state identity and distinctiveness thus threatens states’ ability to be laboratories and havens for minority viewpoints. The question is whether anything can be done to restore a sense of identity and public commitment in the states.
We may learn something here from an inverse debate in contemporary Europe. National identities in Europe have frequently been a function of ethnic and religious ties. As the European Union develops institutions of governance at the supranational level, however, Europeans have wondered whether democratic accountability at that level requires a pan-European politics based on a shared pan-European identity. Traditional national identities based on shared ethnic and religious ties, however, cannot be replicated at the European level. A prominent proposal to solve this problem involves “constitutional patriotism”—that is, a common identity based on shared liberal ideals of human rights and equal dignity. European identity would be based not on an ethnic volk but on a shared set of political commitments.
This shift in the nature of political identity resonates in America, where national identity has long rested on a form of constitutional patriotism. A similar solution may revive political identities at the state level that have waned as states become both more ethnically heterogeneous internally and more similar to one another in their ethnic and religious makeup. Massachusetts might build a distinctive political identity based on tolerance of alternative lifestyles and a more generous set of social rights, and California might distinguish itself by its commitment to the environment.
Not all state-based brands of constitutional patriotism would be progressive. Texas might gravitate toward rugged individualism and a commitment toward traditional notions of punitive justice. But states need not be uniformly—or even predominantly—progressive in order to fulfill their functions as laboratories of progressive change. The critical thing is that individual states have the freedom to make their own policy choices and the ability to mobilize the loyalties of their citizens around those choices. If the progressive constitutional visions articulated in the 2020 volume are to be realized, many of those reforms will have to start in the states.