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
Yesterday and the day before, I blogged about the unexpected benefits associated with spillovers – when one state’s policy affects citizens in another state -- and the friction they generate. Today, I want to connect those observations to a larger set of questions about federalism.
What’s so striking about the near-universal hostility to interstate spillovers is that it stands in stark contrast to one of vertical federalism’s central tenets. While we mourn friction between the states, friction between the states and the federal government has been a celebrated feature of American democracy for centuries. When federal policy spills over into a traditional state domain or state policy spills over into the federal realm, it causes the same kind of friction that arises from interstate spillovers. This friction has led to all sorts of problems, including inefficiency, conflict, and division. Federalism scholars don’t deny these harms. They simply insist that we also pay attention to the productive possibilities associated with state-federal friction.
In a recent article entitled “The Political Safeguards of Horizontal Federalism,” Ari Holtzblatt and I argue that it’s time to apply this lesson to the horizontal realm. Like friction between the states and federal government, friction among the states comes with both costs and benefits, and it’s here to stay. Our goal, then, shouldn’t be to eliminate interstate friction, but to harness it—taking advantage of its many democratic benefits while avoiding its more serious costs.
In the spirit of this observation, my co-author and I build a case for the political safeguards of horizontal federalism.
For decades we’ve debated whether “political safeguards” preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state-federal tussles. But no one has made such an argument about relations among the states, and the few scholars to have considered the question insist that such safeguards don’t exist. Our Article takes the opposite view.
Although the literature on horizontal federalism has been burgeoning, it’s not surprising that the literature is missing an account of the political safeguards of horizontal federalism given the field’s core commitments, all of which push against a safeguards account. Developing a political safeguards account for horizontal federalism, then, involves both excavation and construction. First, we must dig into the doctrine and scholarship in order to account for the puzzling differences between the fields. Second, once we’ve examined (and debunked) the arguments that have prevented scholars from even thinking to develop a safeguards account, we must build it. I’ll talk about both projects tomorrow. Posted
by Heather K. Gerken [link]