73 Pages Posted: 5 Dec 2010 Last revised: 14 Jan 2011
Date Written: December 3, 2010
The core divide in federalism centers on sovereignty. The Supreme Court consistently invokes sovereignty, and scholars just as consistently deplores its invocation. But even as scholars regularly announce the death of sovereignty, they remain haunted by its ghosts. The scholars who urge the Court to move beyond sovereignty still accept the vision of state power put forward by federalism’s champions, one that involves states presiding over their own empires rather than administering someone else's. Both sides of the debate thus subscribe to an exit account of federalism - the notion that the best thing a democracy can do for its minorities is to give them a chance to make policy separate and apart from the center. While exit is a perfectly sensible way to conceptualize parts of "Our Federalism," it doesn't capture all of it. And because constitutional theory remains all but entirely rooted in an exit account, it remains disconnected from the many parts of "Our Federalism" where exit is not to be had. Within these institutional arrangements, minorities are part of a complex amalgam of local, state, and federal actors who administer national policy. The power minorities wield is that of the servant, not the sovereign; the insider, not the outsider. Here minorities exercise a muscular form of voice - the power to make federal policy, not just complain about it. If we orient federalism around voice and not just exit, we would find that there are new things to say about federalism. Here I name three. First, reorienting federalism around voice rather than exit would push federalism all the way down, turning our attention to the administrative units long neglected by federalists and their localist counterparts. Second, it would push us to conceptualize the vertical checks on power in the same way we think of the horizontal checks and thus help us build a "checks and balances" model of how the center and periphery interact. Third, orienting federalism around voice rather than exit would help us develop a more convincing nationalist account for valuing "Our Federalism," one that would show how decentralization promotes rather than undermines the core values associated with the First and Fourteenth Amendment.
Keywords: Federalism, localism, separation of powers, checks and balances, race, equality, dissent, First Amendment, Fourteenth Amendment, diffusion of power, principal agent problem, servant, sovereignty, special-purpose institutions, administrative law, diversity, voice, exit
Suggested Citation: Suggested Citation
Gerken, Heather, Foreword: Federalism All the Way Down (December 3, 2010). Harvard Law Review, Vol. 124, No. 1, p. 6, 2010; Yale Law & Economics Research Paper No. 421; Yale Law School, Public Law Working Paper No. 219. Available at SSRN: https://ssrn.com/abstract=1719718 or http://dx.doi.org/10.2139/ssrn.1719718