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
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 argued that the new nationalists have created the conditions for a détente in federalism debates by showing that proponents of both nationalism and federalism have pitched their tents on unstable ground. First, the new nationalists have shown that the central premise of the federalism/nationalism divide – that centralization always favors national interests and decentralization always favors state interests – is false. Second, the new nationalists have shown that the democracy we have should represent a reasonably satisfying compromise for both sides. It is a different reality than either camp desired, but it is also a different reality than either camp feared. This work has thus unsettled the existing terrain and mapped new territory going forward: common ground on which to build . . . or new terrain on which to battle.
Let me give one example of how the debate should change. We need what I call a "new process federalism," one tailored to the evolving nature of state power and the role states play in a thriving national democracy. The work of the new nationalists confirms that it makes perfect sense to look primarily to politics to safeguard healthy federal-state relations. But we’ve focused on safeguarding far too narrow a conception of state power.
The work of the new nationalists has buttressed the core insight of the political process school: federal-state relations are profoundly shaped by political forces no matter what formal bounds the Constitution places on state and federal power. As a formal matter, the national government can regulate where it sees fit these days, and yet the states retain a powerful place in the American system. Federal power is more constrained by politics and practice than by Constitutions and codes.
The problem is that those who want to rely on the political safeguards to protect state power have not been thinking about the most important form of state power. Indeed, as far as I am aware, all of the process federalists imagine politics safeguarding state autonomy, and all of process federalism’s opponents have focused on the need to protect state sovereignty. Both accounts depend on the federal government and states regulating independently and presiding over their own empires. If the autonomy/sovereignty debate is becoming a sideshow, however, it makes little sense to fight these fights. Put differently, if you recognize how state power functions in this day and age, it can’t be that the purpose of the political safeguards is to help the states and federal government engage in the governance equivalent of parallel play. In a world where regulatory overlap is the rule, then, neither side in that debate has focused on the right question.
In the paper, I begin to sketch what a “new process federalism” might look like. It’s an account that draws upon the wisdom of both camps. One side has been wrong in thinking that the point of process federalism is to shore up state autonomy, but it’s been right to think that the courts have a role to play. The other side has been right to think it’s a mistake for the Court to engage in first-order policing of federal-state boundaries, but it is wrong to think that the courts should vacate the field.
by Heather K. Gerken [link]