The Once and Future Challenges of American Federalism: The Tug of War Within
This essay is drawn from a lecture for the “Ways of Federalism” conference (University of the Basque Country, October 19, 2011) and a forthcoming book, Federalism and the Tug of War Within (Oxford, 2012), which explores how constitutional interpreters struggle to reconcile the core tensions within American federalism. The essay reviews the current challenges of the American federal system through the theoretical lens developed in the book, focusing on the role of state-federal bargaining within the U.S. federal system.
Federalism as Legal Pluralism
This chapter uses the dynamic federalism model of constitutional dual sovereignty as an analytic window into the emerging legal pluralism discourse. Legal pluralism explores the significance of multiple sources of legal authority and identity with which individuals simultaneously engage. Overlapping sources of normative authority range from different levels institutions of government to private sources of “quasi-legal” norms generated by tribal, religious, commercial, professional, or other associations. Legal pluralism scholars challenge the tradition of legal monism—so entrenched that its presumptions often go unnoticed—which views legitimate legal authority as deriving only from an established source of sovereign or natural authority that unambiguously trumps all competing forces. Proponents contend that legal pluralism more accurately captures the scope of political contest in pluralist societies and the full array of normative forces operating on individual actors. Skeptics critique it for failing to distinguish between legitimate and illegitimately normative forces, and for threatening critical societal institutions by weakening the prerogatives of nation-states. Constitutional federalism, itself characterized by multiple sources of authority within a single geographical territory, provides a simple example of legal pluralism that sidesteps much of the controversy. Involving only sovereign authority, federalism avoids legal pluralism’s normative challenge to statism. Moreover, it resolves at least some of the heterarchical uncertainty unleashed by legal pluralism through the hierarchical ordering device of federal supremacy. Nonetheless, the structural features of dynamic federalism provide valuable platforms for cross-jurisdictional deliberation and dialogic policymaking that resonate with the good-governance proposals advocated by legal pluralists for more inclusive norm generation.
Police and Political Violence in the 1960s and 1970s: Germany and Italy in a Comparative Perspective
Notwithstanding the significant differences between the German and Italian police models (federal and civil vs. centralised and militarised), in both countries the confrontation with the protest movements of the 1960s and 1970s had a profound impact on police conceptions and public order strategies. Police forces in some German federal states (West Berlin) followed a hard line until the late 1960s, while in others (Munich, Hamburg) reforms to the Weimar-centred police intervention tactics took place beginning in the early to mid-1960s. In Italy, traditional police conceptions and strategies remained largely unchanged and re-emerged in 1968. Here, a movement from within the police led to the demilitarisation and unionisation of the state police in 1981. In both countries, fighting left-wing terrorism in the 1970s stimulated technical modernisation and enhanced the centralisation of the police. In critical response to police tactics, in the late 1970s Germany police matters were increasingly perceived as a concern not only of the state but of civil society—even if policing remained a highly contested terrain. In Italy, such matters largely remained state concerns in which only politicians and internal security specialists were entitled to intervene.