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
Progressive legal scholars have tended to gravitate toward national institutions in the quest for a revised and rejuvenated politics. The project of imagining the Constitution in 2020 is an example. With some exceptions, it is mostly concerned with goings-on at the highest level of government. Constructing a progressive vision of the Constitution that can be implemented by federal courts and promoting national progressive legislation appear to be the primary tasks.
This focus on national institutions may be strategically and politically limiting. Often progressivism comes from below rather than from above. Remember Justice Brennan’s exhortation to liberals to look to state constitutions for the vindication of rights. Remember also Louis Brandeis urging the young New Dealers to “end this business of centralization” and go back to their states to do their work. Brandeis in particular represents a decentralist strand of the early progressive movement that forcefully advocated the devolution of power to local democratic institutions, that championed an activist and experimental government, and that harnessed the energies of city and state leaders toward the protection of workers, the middle class, and the poor.
What would a rejuvenated progressive decentralization look like today? First, as Judith Resnick’s essay in The Constitution at 2020 argues, it should not be the separate spheres federalism of the Rehnquist Court; it should also be “truly local” in a way that a states’-rights federalism is not. Federalism all-the-way-down means championing local governments and, in particular, cities as sites of a renewed progressive politics. Indeed, though the urban core of the New Deal coalition withered some time ago, the more recent resurgence of the cities has been accompanied by a noticeable rise in municipal regulatory ambition. Cities have extended marriage rights to gays and lesbians, passed minimum wage and living wage ordinances, embraced universal health care, adopted international environmental protocols, and engaged in progressive impact litigation on behalf of the city. Progressive mayors have engaged the task of reinventing education, housing, and economic development policy. Cities (and metropolitan regions more generally) are the engines of economic growth; they contain the bulk of the region’s highly educated workforce; and they are diverse and politically attuned. A renewed urban-based progressive politics seems within grasp. The urban-based reforms of the Progressive Era represent a useful model.
Second, progressives should reassert the relationship between political and economic decentralization. Willy Forbath, in his contribution to The Constitution in 2020, has argued that progressives should reclaim constitutional political economy. One way to do so is by clearly articulating the relationship between political decentralization and economic deconcentration. The current constitutional discourse’s preoccupation with federalism reflects a concern with concentrated, centralized public power, but it is not accompanied by an equivalent concern for concentrated, centralized private power. These two are linked, however, for—as republican political theory has taught—self-government is not possible when either government or business becomes too large. Antitrust and tax policy should be directed toward breaking up too-large concentrations of economic power, a goal that should be at the core of a progressive constitutional vision. Minimum welfare standards may be a part of that vision, but they are not an end in themselves. Rather, political independence and local economic self-sufficiency should be the watchwords of a progressive political economy.
The distrust of centralized economic and political power has a long (and oftentimes inglorious) pedigree in the United States. But the mid-twentieth century association of decentralization with states’ rights is only part of the story. The political left should recapture the language of political and economic decentralization both because it is consistent with the left’s political values and because ignoring it is politically unwise. Consider how the public has reacted to the government bailouts of those financial institutions that have been deemed “too big to fail.” Consider also how the public has reacted to the possibility of a centralized, federally-governed health care system. These are connected, for our current version of liberalism does not have the resources to address the anxieties that accompany large-scale economic and political processes. Cosmopolitans on the right and left may dismiss it, but the search for communal and civic stability animates much of the distrust of centralized power. The rise of institutions that are too big represents a loss of control over one’s political and economic fate. Progressive era decentralists recognized this and so should we.