Cool federalism and the life-cycle of moral progress.

• Author: Sager, Lawrence G.
• Position: Dual Enforcement of Constitutional Norms

INTRODUCTION: HOT AND COOL FEDERALISM

We can divide justifications for federalism-based structures of governance into hot federalism and cool federalism, with the distinction keyed to the reasons for resorting to a federal structure. By hot federalism, I mean the use of federal structures of governance to solve a type of problem that can arise when relatively settled and coherent social groups seek to create common structures of governance with other groups. Each group, we can imagine, is relatively homogeneous, with sufficient commonalities of experience, belief, commitment, language, and so on, to permit its members to enjoy a fair amount of trust and comfort with each other as members of a political community. But between or among the groups in question, there is substantially less commonality and substantially less trust and comfort with the prospect of becoming members of a single political community. The groups in question, nevertheless, wish to create or perpetuate some form of a trans-group union. This creates a problem in governance of the form: How can such groups work together in the face of the reluctance to concede full and ultimate authority to a trans-group governing entity?

Hot federalism is very important in the contemporary world, and the prospects for its success in various modern contexts are remarkable and exciting. There are reasons, however, to be a bit wary of the capacity of federal structures to overcome problems of the hot federalism variety. In the United States, we certainly began with hot federalism concerns, driven substantially by the issue of slavery. But our federal structure in this regard was a great failure, giving on to the tragedy of the Civil War. Recently, we have seen Canada nearly come apart, and the success of the federal structure there still seems a close question. Europe is moving rapidly to the embrace of a trans-national, federal structure of governance--far more rapidly than many would have imagined remotely possible; but it is still too early to assess the ultimate success of this extraordinary transition. The miracle of South Africa's constitutionalized revolution has made important use of a federal structure to permit wary groups to join under a national rule of law; but here too, it is a bit early to draw conclusive lessons. And Switzerland has always seemed too small and quirky to offer lessons for the rest of the world.

In any event, I mention hot federalism only to set it aside. It is cool federalism that interests me here. Cool federalism is substantially less ambitious. It aims not at making it possible for groups to coexist in governance structures that would otherwise be intolerably threatening, but at the more modest goal of making it possible for a political community to govern itself better--to get better, cheaper, or more widely accepted results than would otherwise be possible. The distinction is crude, but the rough idea is that cool federalism supports federal structures of governance in situations where it would be perfectly possible for a unitary structure to operate, but with the hope that a federal structure will improve governance in some salient way.

In this rough dichotomy, it seems reasonable to think in general of functional arguments for federal arrangements in the contemporary United States as claims in the domain of cool federalism. Indeed, I am inclined to the view that the only interesting arguments available to those who want to promote one or another view of contemporary federal arrangements in the United States are functional arguments of the cool federalism variety.

Here, the more precise question I want to reflect upon is the connection between the shape of the overlapping authority of state and federal governments to enforce civil rights and the virtues of cool federalism.

1. THE LIFE CYCLE OF MORAL PROGRESS IN AMERICAN POLITICS

   Let us begin with this speculation: It frequently will be the case that moral progress in the project of securing political justice in the United States will follow a common course with regard to the interplay between state and federal sensibilities and consensus. Things will go roughly like this:

   * Invention. Initially, the ideas that we eventually come to see as representing moral progress will take hold in a small number of states; other states will be less moved by these ideas, or even stridently opposed to these ideas. The concrete form assumed by these maverick ideas in the states where they take hold may be that of state legislation, state constitutional revision, or judicial decision--quite possibly in the name of the state constitution or the United States Constitution. We have some obvious contemporary examples of this phase, the most prominent being the moves toward the normalization and acceptance of gay marital union in Vermont (1) and gay marriage in Massachusetts. (2) Oregon's path-breaking concern with the right of the terminally ill to die with dignity (3) and California's experiment with the medical use of marijuana (4) are other examples.

   * Propagation. Over time, as these minority states begin to act on their commitments, some of these commitments will begin to have wider appeal. Perhaps experiment and experience will aid their cause; perhaps the political success of what was previously a minority view in the cutting edge states will encourage the spread of political activity elsewhere; perhaps the confluence of related but external events (scientific discoveries, geopolitical trends, governmental steps or missteps, etc.) will extend their influence beyond the boundaries of the cutting edge states; or, perhaps it will simply be a matter of better moral insights coming to prevail. This is merely a short, suggestive list of possibilities. It is not intended to approach an exhaustive rendition. The bottom line is that gradually support for these maverick projects grows even in the face of what may be active opposition.

   * Consolidation. Eventually, after these once-maverick moral insights have come to occupy a place within mainstream national thought, the federal government may impose those insights on the remaining--now in some salient sense, outlying--states. This imposition may assume one of several recognized forms: federal legislation, federal judicial judgment in the name of the Constitution, or constitutional amendment.

   This proposed life-cycle of moral progress may seem a figment of my (admittedly liberal) imagination, fueled by events that occupy a very thin slice of the historical experience of the United States. I willingly admit that it is our recent experience with the rights of gays and lesbians to marry that has drawn my attention to this structure of moral development. I am, nevertheless, tempted to think that something like this cycle of events has been characteristic of our most important moral progress. Consider, for example, the...