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.
The Judicial Safeguards of Federalism
I. INTRODUCTION There is no federalism constituency within Congress. Not only do federal lawmakers and national lobbyists gladly sacrifice federalism in order to advance other interests, but state officials also "have systematic political interests that often cause them to undermine federalism."1 In explaining why both state and federal officials discount federalism, John McGinnis and Ilya Somin's Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System provides an important and persuasive critique of the claim that the national political process inevitably protects federalism.2 My comments will extend Federalism v. States Rights in two ways. First, I will posit an alternative explanation as to why the national political process does not value structural federalism. In particular, I will argue that even if the American people were well informed about the benefits of federalism, they would still trade off those benefits in order to secure other policy objectives. For this reason, I think McGinnis and Somin are wrong in suggesting that informed voters would likely value federalism over other objectives and, consequently, that the problem with the political process policing federalism is that Americans are "know nothings" who have little incentive to learn about, let alone "monitor[,] the federal state balance."3 As I will argue in section II of this Comment, there is no reason to believe that the problem with federalism is that the principals (the American voters) lack the impetus to check their agents (state and federal officials). The problem is more pervasive: No one really cares about federalism.4 Second, by looking at congressional responses to the Rehnquist Court's federalism revival, I will argue that the Court could successfully pursue a more ambitious theory of structural federalism. In short, because interest groups, voters, and elected officials care more about underlying policy issues than about structural protections, there is no federalism constituency to block the Rehnquist Court's reinvigoration of federalism. This conclusion is in tension with McGinnis and Somin's contention that federal and state officials strongly support deferential judicial review of federalism issues and, as such, might resist additional judicial tightening of Congress's powers. II. FEDERALISM AND THE NATIONAL POLITICAL PROCESS Americans have low levels of political knowledge and almost no knowledge of the division of power between federal and state governments.5 Extrapolating from social science research on political knowledge, McGinnis and Somin offer a common sense explanation for voter ignorance on federalism: Unlike issues such as gun control, same sex marriage, and the death penalty, federalism is "too abstract and complicated to engage the passion of citizens."6 What, then, of Americans who are well-informed about the federal-state balance, including the benefits of federalism outlined in Federalism vs. States ' Rights'? Would they trade off federalism for other objectives? The answer to this question is important. One premise of the principal-agent theory that animates McGinnis and Somin's analysis is that informed Americans would not sacrifice structural federalism. Otherwise, there would be no need for judicial enforcement of federalism to protect the interests of voter/principals. Voter/principals, instead, would simply be part of a governmental system that regularly discounts federalism. Under this scenario, the Supreme Court might still protect federalism. But the rationale for such protection would not be moored to principal-agent theory. The justification for judicial protection of federalism, instead, would be tied to judicial efforts to advance the public interest or the Court's belief that the text and original meaning of the Constitution mandate judicial enforcement of federalism.7 McGinnis and Somin, to their credit, call attention to some of the reasons that informed voters might subordinate federalism to substantive policy objectives. …
THE NORMATIVE FUNCTIONS OF COERCION CLAIMS
INTRODUCTION A says to B: “Unless you x, I will y.” Or, equivalently, “I will –y if and only if you x.” Is this proposal coercive? If B performs x has he been coerced? Is this an instance of coercion? Moral and political philosophers, as well as legal theorists, have struggled with these questions at least since Aristotle but have been tackling them with renewed vigor since Robert Nozick’s seminal 1969 article.Robert Nozick, Coercion, in PHILOSOPHY, SCIENCE AND METHOD 440 (Sidney Morgenbesser et al., ed. 1969). And, happily, scholarly efforts over the past few decades have substantially advanced our understanding.The most comprehensive account, which explores coercion from both legal and philosophical perspectives, is Alan Wertheimer, COERCION (1987). Other particularly valuable contributions to a substantial literature include Joel Feinberg, HARM TO SELF 189–268 (1986); Harry G. Frankfurt, Coercion and Moral Responsibility, in ESSAYS ON FREEDOM OF ACTION 63 (Ted Honderich ed. 1973); Vinit Haksar, Coercive Proposals, 4 POL. THEORY 65 (1976); Daniel Lyons, Welcome Threats and Coercive Offers, 50 PHIL. 425 (1975); Peter Westen, “Freedom” and “Coercion”—Virtue Words and Vice Words, 1985 DUKE L.J. 541; and David Zimmerman, Coercive Wage Offers, 10 PHIL. & PUB. AFFAIRS 121 (1981). Most significantly, in my view, they have made increasingly clear (despite a few remaining dissenters) that answers to these coercion questions are thoroughly moralized in the sense that the questions cannot be resolved by reference solely to nonmoral facts. But if the answers themselves are moralized, so too, of course, are the questions. That is, coercion claims arise, and stake a claim to our attention, in order to serve some sort—or sorts—of normative needs.