Robert A. Schapiro: Professor of Law, Emory University School of Law. Email: firstname.lastname@example.org. I am grateful for the helpful comments of Robert B. Ahdieh, Anita Bernstein, William W. Buzbee, Richard D. Freer, Barry Friedman, Kimberly Jenkins, Michael Kang, Kay Levine, Marc L. Miller, Michael J. Perry, Martin H. Redish, Jennifer Romig, Sara K. Stadler, and Timothy P. Terrell. Robert McKeehan and Matthew Spivey provided skilled research assistance. Terry Gordon and Will Haines of the Emory University School of Law Library also offered valuable aid. The research for this article was supported by a summer research grant from the Emory University School of Law. My thanks to Dean Thomas C. Arthur for this and other support. Page 246
Dual federalism is dead, but not gone. Its spirit continues to haunt contemporary discussions of federalism.
Dual federalism refers to the concept that the state and national governments enjoy exclusive and non-overlapping spheres of authority.1Dual federalism no longer describes the actual allocation of governmental power in the United States.2 The federal government and the states have extensive areas of concurrent authority. In many realms, from narcotics trafficking3 to securities trading4 to education,5 federal and state laws regulate the very same conduct. The United States Supreme Court long ago blessed this arrangement,6 and, occasional rumblings to the contrary notwithstanding, the Court has shown no inclination to attempt to recreate a dual federalist system.7
Despite these developments, the conceptual framework of dual federalism remains pervasive in theory and doctrine. Dual federalism defined the core issue of federalism as the separation of state and national power. The rigid boundary that dual federalism sought to erect has disappeared, but the basic conception of federalism continues to be a system of independent national and state governments that must be protected from each other. Federalism remains an exercise in line-drawing.8 Not everyone embraces federalism, but it is this separatist notion of federalism that federalism's supporters support and its opponents oppose. Dualist conceptions survive, even after dual federalism has withered away. Page 247
The attempt to define some protected spheres of state and federal authority has produced substantial doctrinal tension. With regard to the key source of federal authority, the Interstate Commerce Clause,9 the United States Supreme Court has fastened on to the distinction between "commercial" and "noncommercial" activity as a defensible boundary for an enclave of exclusive state control. The concept of "commercial" activity, however, provides little determinate guidance.10 Moreover, the focus on using "commercial" as the border between state and federal power has served as a doctrinal Maginot line, distracting attention from other, more serious issues of federalism.
In areas in which the "commercial" frontier has no application, the Court has shown little concern with preserving a role for state authority. The doctrine of federal preemption, in particular, raises serious questions about the proper scope of state and federal power, but those questions cannot be answered by reliance on the distinction between "commercial" and "noncommercial" activity. Nevertheless, intent on drawing lines between state and federal realms, the Court in many instances has refused to countenance an overlap of state and federal authority. This dualist approach has led the Court to apply a broad doctrine of preemption with the effect of forestalling a variety of state regulatory efforts.11 The Court has deployed the Dormant Commerce Clause with a similarly wide effect in limiting state regulation.12 Unlike some recent critics of the Court,13 my point is not to argue that the Court's doctrine has fundamental inconsistencies that protect states in some areas and harm them in others. Rather, I contend that these Page 248 divergent results correspond to a consistent, and misguided, adherence to dualist principles.
The attempt to define quintessentially state and federal domains has caused considerable confusion in federalist theory as well. Defenders of federalism cite several benefits that federalism supposedly promotes, including efficient and responsive governance, participatory self- government, and protection against tyranny. Critics note that federalism actually can impede the realization of these goals and can endanger other values as well. As I will explain, the dualist project of dividing state and federal power results in this irreconcilable conflict over the implications of federalism.
Scholars have attempted to develop coherent replacements for dualist visions of federalism, but have not succeeded. Some prominent efforts include process federalism, which emphasizes procedural instead of substantive protections of federalism, and empowerment federalism, which seeks to magnify state and federal power without limiting either. As I will explain, process theories merely cloak dualism in procedural garb,14 while empowerment theories provide little guidance to Congress or the courts in addressing state-federal tensions that inevitably arise.15 A third alternative, the concept of cooperative federalism, developed by political scientists, offers a more accurate description of the actual interaction of federal and state governments. The concept of cooperative federalism, however, has generated little normative legal doctrine. The theory emphasizes voluntary interaction; cooperative federalism does not prescribe the resolution of state-federal conflicts.16
This Article develops an alternative concept of federalism that focuses on the interaction of state and national governments. In the contemporary United States, the core achievements of federalism, I argue, result from the joint operation of state and national authority. The key to understanding the promise of federalism lies in considering state and national power not in isolation, but in interconnection. Dualism thus provides the wrong conceptual framework. By focusing on defining boundaries, rather than exploiting overlap, courts and commentators miss the full potential of contemporary federalism.
The concept of polyphony, I contend, presents a better model for understanding federalism.17 The states and the federal government Page 249 represent independent voices of authority. However, it is the dynamic interaction among states and the national government that forms the true sound of federalism. Unlike a purely cooperative model of federalism, a polyphonic conception recognizes an important role for competition among states and between states and the federal government. The relationship of the states and the federal government may indeed be confrontational rather than cooperative. Polyphony accepts a substantial role for dissonance as well as harmony.
An especially significant implication of the rejection of dualism is the transformation of the role of courts in the federalist scheme. With federalism understood as empowering various levels of government, not protecting entrenched domains of authority, courts can serve as agents of federalism.18 State and federal courts, as alternative centers of power, can cooperate and compete so as best to promote the goals of federalism. In one of the most important illustrations of polyphonic federalism, courts can safeguard fundamental rights by applying the law of a different jurisdiction. In a variety of areas, state courts protect federal rights, and federal courts implement state rights. This kind of intersystemic adjudication reflects the ability of courts to realize the potential of federalism. This...