Monday, December 13, 2010

Puzzling About Federalism

Heather K. Gerken

Lately I've been thinking and writing about federalism for a paper I just published last month in the Harvard Law Review: Foreword: Federalism All the Way Down. There I talk about several puzzles one finds in the federalism literature.

One of those puzzles goes to the main intellectual divide in federalism. There is a fair bit of agreement as to what purposes federalism serves: choice, competition, participation, experimentation, and the diffusion of power. The core divide in federalism turns on the best means to pursue those ends. The Supreme Court and a handful of scholars regularly assert that states require sovereignty -- a formal guarantee, enforceable in court -- to protect state power. Another set of scholars just as regularly insists that federalism should move beyond sovereignty. Many endorse process federalism, which looks to politics, inertia, and interdependence as the guarantors of state power.

So that's the divide as we conventionally understand it: champions of sovereignty on one side; process federalists on the other. Here’s the puzzle: even though we typically imagine these traditional sparring partners as being on opposite sides of the debate, in fact the two camps have a good deal more in common than we typically imagine. Even as process federalists announce the death of sovereignty, they remain haunted by its ghost.

The process federalists' image of state power, for instance, looks remarkably like the one found in a sovereignty account. The de facto autonomy lauded by process federalists looks much like the de jure autonomy lauded by sovereignty’s supporters -- both involve presiding over one's own empire rather than administering someone else's. Process federalists rebuke sovereignty types for endorsing a separate spheres approach, but lurking in their own work is the sense that states should have their own regulatory turf.

So why do these putative opponents have so much in common? We can begin to make sense of this fact if we imagine federalism as a strategy for solving one of the great puzzles of democratic design -- what should a majoritarian democracy should do with its minorities? Most accounts of federalism stand in loosely for the notion that the best way to protect minorities in a majoritarian system is to give them what Albert Hirschman might call an "exit option" -- making space for them to enact their own policies, separate and apart from the center. That is why process federalists, who urge the Court to move beyond sovereignty, still stick with sovereignty's intellectual traveling companions. They may differ from sovereignty's champions when thinking about how to protect state power, but both camps are still thinking about power itself in basically the same way.

The argument I offer in the Foreword is that while "exit" is an excellent way to conceptualize chunks of "Our Federalism," it doesn't describe all of it. And because constitutional theory remains rooted all but entirely in an exit account, it is disconnected from the many parts of "Our Federalism" where an exit model doesn’t capture the form of power states wield. In these areas, the states and federal government regulate together, often with states administering national policy. The power that minorities wield is that of the servant, not the sovereign.

What kind of account do we need to describe state power in the many areas where states are servants, not sovereigns? What's the alternative? Voice, obviously, but here I don’t mean "voice" in the same sense that Hirschman uses it. I am not referring to the idea that minorities can speak out against a national policy. I mean to refer to a more robust, more muscular form of voice: the ability of states to make national policy, not just to complain about it. It's the chance to serve as policymaking insiders rather than autonomous outsider . . . to dissent from within rather than complain from without . . . to administer the federal empire rather than preside over an empire of one’s own.

Tomorrow I'll talk about a different puzzle in the literature: why do scholars have such a sunny view of "cooperative" federalism?

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