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
For the last two days, I have been blogging about some puzzles in the federalism literature. The first is that federalism's two main camps endorse a markedly similar account of federalism, an account that is poorly suited for the institutional arrangements we call "cooperative federalism," where the states and federal government regulate together. The second is that the few scholars who do write about "cooperative federalism" dwell, as the moniker suggests, entirely on the sunnier aspects of federal-state relations and thus neglect many of the theories that have been traditionally associated with constitutional federalism. Scholars, for instance, haven’t thought enough about the uncooperative dimensions of cooperative federalism or the democratic dimensions of these bureaucratic arrangements.
Here’s the third puzzle: federalism is a theory about what a majoritarian system ought to do with its minorities, yet it's had remarkably little to say about the two types of minorities that are most salient in our constitutional system: racial minorities and dissenters.
As I've argued in a recent paper in the Harvard Law Review, Foreword: Federalism All the Way Down, scholars claim that federalism protects minorities by giving them an exit option. Nationalists, of course, worry about federalism for precisely this reason. They worry that the exit option allows local majorities to oppress local minorities. They are reluctant to license local majorities to depart from a national consensus. These fears are deeply rooted in the dark history of slavery and Jim Crow. They are also rooted in an exit account of federalism.
If we orient federalism theory around the institutional arrangements where national minorities exercise what I've called a muscular form of voice, not just exit, we can draw connections between the two grand traditions of constitutional law, rights and structure, by showing how decentralization can serve rather than undermines the core tenets of the First and Fourteenth Amendment.
This argument is easiest to understand if we back into it and start by thinking in institutional terms about what a conventional nationalist thinks is the best way to protect minorities. Proponents of federalism and nationalism both favor a basic baseline of rights. But when it comes to structure, nationalists, disgusted with federalism's past, gravitate to an institutional design strategy familiar to all of us: the diversity paradigm. The idea is simple and intuitive -- that decisionmaking bodies ought to mirror the population from which they are drawn -- they ought to look like America, to use Bill Clinton's favorite phrase. This idea is so pervasive in our thinking that it is inscribed in our vocabulary. In the context of race, our terminology is bimodal. An institution is either "diverse" or "segregated." There is no celebratory term like federalism in the context of race -- a term to celebrate heterogeneous institutions where racial minorities dominate instead of whites. Our discourse on dissent exhibits the same shortcomings. Political dissenters are, by definition, political minorities. Consistent with the diversity paradigm, we typically assume that they should be represented in rough proportion to their population -- one lone skeptic among Twelve Angry Men. Here again, we term institutions where dissenters dominate as "lawless" or "parochial" rather than using a celebratory term like federalism.
Viewed through the lens of federalism, you'll note that the diversity paradigm has an odd quality to it -- it is a theory about empowering racial minorities and dissenters that relentlessly reproduces the same inequalities on governance bodies that they experience everywhere else.
You can see the attraction of federalism, which depends on -- even glories in -- the idea that national minorities constitute local majorities. Why don't we imagine federalism as a strategy for managing and leveraging diversity for racial minorities and dissenters, the two groups where diversity concerns are most salient to the nationalists?
Here I think the exit paradigm gets in the way. Most obviously, the longtime connection between federalism and exit lead nationalists to miss the possibility that we could maintain the local sites that empower minorities without giving up on the idea of enforcing a national consensus.
Less obviously, the exit paradigm directs our focus to states, thus leading us to neglect the smaller units where racial minorities and dissenters are far more likely to dominate. If we abandon the notion that federalism only involves minorities ruling themselves, separate and apart from the center, we can push federalism all the way down to smaller governing institutions. We could thus focus on the ways in which local empowerment serves a role in the political and economic integration of racial minorities. We could imagine local institutions serving as a complementary and competing channel for dissent. We could imagine, in short, decentralized units serving the same type of role in our democracy as do the First and Fourteenth Amendment. Posted
by Heather K. Gerken [link]