Federalism

• Author: Vicki C. Jackson
• Pages: 989-994

Page 989

Federalism is a political system in which different levels of government agree to share power in governing the same territory. Constitutional federalism in the United States refers both to the constitutional provisions for the national and the state governments to exist and to perform particular functions in the federal system of governance, and to the sets of relationships?among states, and between states and the federal government?for which the Constitution provides a framework. JUDICIAL REVIEW of federalism refers to the limits on federal and state action that courts will enforce on behalf of the federal structure of the Constitution.

Constitutional Federalism. Constitutional federalism in the United States emerged out of practical experiences under the ARTICLES OF CONFEDERATION and political exigencies. Experience showed that greater centralization was essential, but the political leadership of the states would not have been prepared to give up their states' self-governing powers to a separate and entirely national government. This pragmatic reality is reflected in the assumption, in many parts of the Constitution, that the states will continue as separate governments, each having a legislature, an executive authority, and courts. The provisions for selecting members of Congress presuppose that state legislatures exist; the provisions for calling forth the militia presuppose an executive authority in each state; and the SUPREMACY CLAUSE presupposes a state judiciary. Even the FOURTEENTH AMENDMENT, which substantially changed the balance of powers between the national and the state governments, contemplates the continued existence of the states as self-governing entities. Section 2 of the Fourteenth Amendment, which penalizes states for VOTING RIGHTS discrimination in elections of members of the state legislature or for state executive or judicial officers, contemplates not only the states' existence but also the continued operation of the three branches of state government.

U.S. federalism has been the subject of theoretical debate from its beginnings. FEDERALIST No. 39 described the provisions of the Constitution as partly national and partly confederated. Federalist No. 59 offered a political theory of the value of federalism: it would serve as a "double security" for the preservation of liberty, with each level of government presumably having motives to check abuses by the other. In United States Term Limits v. Thornton (1995), the influential concurrence of Justice ANTHONY M. KENNEDY linked U.S. federalism to coexisting CITIZENSHIPS (state and federal) and political accountability, emphasizing that both state and national government representatives are selected by the people and that each level of government is accountable to the people.

Among the values claimed for federalism as a constraint on national power are (1) its liberty-preserving, tyranny-preventing possibilities, (2) the potential for decentralized government to maximize the satisfaction of individual preferences by allowing citizens to choose among diverse regimes by moving from one to another, (3) the opportunities for more active political participation at lower levels of government whose units are smaller, (4) the possibilities

Page 990

for developing cross-cutting allegiances among different groups in society, given that state boundaries for the most part do not correspond to such deeply divisive characteristics as race, religion, or language, and (5) the greater prospects offered by decentralization for useful innovation in government design and policy. But whether constitutional constraints on national power actually serve these goals remains contested. National power in the last half-century has been an important force for liberty and equality as against tyrannical policies of state-sponsored racial SEGREGATION, though in recent years some state or local jurisdictions have moved ahead of federal policies in advancing CIVIL RIGHTS for gays and lesbians. Vigorous federal action, especially in economic or environmental spheres, can sometimes avoid "races to the bottom" that would constrain rather than enhance state choices, though whether states would race to the bottom, or to the top, in some important areas of regulation remains in contest. If the only significant politics is at the national level, participation in state or local politics may be less meaningful. Cross-cutting allegiances may be temporary products of contingent demographic distributions rather than a value of federalism itself. And, some would say, experimentation can be achieved through nationally directed but decentralized programs.

Debate over the "value" of federalism in the United States continues. Edward Rubin and Malcolm Feeley, for example, argue that federalism, as a constraint on national power, is a "national neurosis," grounded in history but serving no current constitutional value, and thus should never be the basis for invalidating or interpreting a federal statute. At another pole, scholars such as Steven Calabresi argue that judicial enforcement of federalism-based limits on national power is as important as judicial enforcement of individual rights?based limits. Still others, such as Larry Kramer, explore the federal structure's empirical effects on national politics and governance.

A related controversy has developed over the basis, and scope, of judicial enforcement of federalism-based limits on state regulation under the DORMANT COMMERCE CLAUSE doctrine. Values of diversity and efficiency have been invoked in favor of more relaxed review of state programs; public choice analysis, on the other hand, has been invoked to support judicial enforcement of "bargains" among the states that will be economically advantageous in the long run to all if cheating can be avoided. There is disagreement both about the source of the limits (e.g., whether from the grant of power to Congress over INTERSTATE COMMERCE or from the PRIVILEGES AND IMMUNITIES of citizenship clause in Article IV) and over the value of some of the more recent manifestations of federalism-based invalidations of state regulatory action (especially those in the area of ENVIRONMENTAL REGULATION). Justices ANTONIN SCALIA and CLARENCE THOMAS have sought, from ORIGINALIST or TEXTUALIST perspectives, to unravel the COMMERCE CLAUSE as a source of judicially imposed restraints on the states, while upholding judicially enforced bans on state discrimination against out-of-staters or interstate commerce under the privileges and immunities clause, or the import?export clause.

Judicial Review of National Action. The debate over the values of federalism is only loosely linked to debate over the role of judicial review. While those who see no value in the maintenance of federal structures may be opposed to judicial enforcement of...