Friday, March 20, 2015

The Political Safeguards of Horizontal Federalism (continued)

Heather K. Gerken

Yesterday I noted that Ari Holtzblatt and I have recently put forward the first account of the political safegaurds of horizontal federalism. While the literature on horizontal federalism is growing quickly, no one has proposed a safeguards account to match the account routinely lauded in the context of vertical federalism.

The reason for this striking disconnect underlines the differences between these two fields of inquiry. Conflict, after all, is a recurring feature of both vertical and horizontal federalism. What divides the two fields is how we should respond to the ineluctable fact of friction. State-federal friction has long been understood to be both a problem and a valuable part of a well-functioning democracy. Moreover, most vertical federalism scholars think that the political arena, not the judiciary, is the right forum for these fights. Political institutions, not the courts, represent the true “safeguards” of federalism.

Scholars of horizontal federalism are much less sanguine about interstate conflict – lawyers, after all, hate spillovers -- and most of them look to the judiciary to referee state-to-state conflict. Congress, administrative agencies, political parties, networked interest groups – all are thought to safeguard vertical federalism. But even though those same institutions are available to mediate conflict among the states, there is no safeguards account to be found in horizontal federalism.

 The current state of the law and literature makes clear why no one has thought to develop a safeguards account to match the one that dominates debates over vertical federalism. Why bother with the political safeguards if politics are the problem and the judiciary is the solution? Because we lack a descriptive and normative argument that interstate conflict serves productive ends, there is no reason to think that spillovers can or should be left to the free play of politics.

Our paper begins to build the descriptive and normative arguments necessary for a safeguards account. First, we debunk that me arguments routinely invoked for cabining spillovers and the interstate conflict they generate, including principles of territoriality, equality among the states, and democratic self-rule (all of which are typically grouped under the larger rubric of “sovereignty”). Second, we build the affirmative case for valuing the role that spillovers play in a well-functioning democracy, many of which have to do with the values associated with “living under someone else’s law.” Finally, we spend some time identifying the political institutions and can and do safeguard horizontal federalism.

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