Depoliticizing federalism

Harvard Journal of Law and Public Policy

Volumn 35, Issue 1, 2012, Pages 121-127

  Seidman, Louis Michael ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84859841121     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (37)

1. ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON (1945).
2. See Douglas Martin, Arthur Schlesinger, Historian of Power, Dies at 89, N. Y. TIMES, Mar. 1, 2007, at A1 (calling Schlesinger an "unabashedly liberal partisan... ").
3. Cf. Mark Fenster, Seeing the State: Transparency as a Metaphor, 62 ADMIN. L. REV. 617, 632 (2010).
4. See, e.g., Wagner Act of 1935, Pub. L. No. 74-198, 49 Stat. 449
5. (codified as amended at 29 U. S. C. §§ 151-169 (2006));
6. Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56
7. (codified at 29 U. S. C. § 206 (d) (2006));
8. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified at 42 U. S. C. ch. 21 (2006)).
9. See, e.g., MARTIN GARBUS, COURTING DISASTER: THE SUPREME COURT AND THE UNMAKING OF AMERICAN LAW 124 (2002);
10. PATRICK M. GARRY, AN ENTRENCHED LEGACY: HOW THE NEW DEAL CONSTITUTIONAL REVOLUTION CONTINUES TO SHAPE THE ROLE OF THE SUPREME COURT 94 (2008). Almost half a century after publication of The Age of Jackson, Schlesinger was ready to concede that some of his conclusions about Jackson were, themselves, grounded in the political context in which he had worked. Yet he continued to argue that Jackson's own stance on federal power appropriately depended on political context.
11. See Arthur Schlesinger Jr., The Ages of Jackson, N. Y. REV. OF BOOKS, Dec. 7, 1989, http://www.nybooks.com/articles/archives/1989/dec/07/the-ages-of- jackson/ ("In practice, the answer to the question of the proper role of the state depended for the Jacksonians on the answer to the question who controlled the state; and this is what the fight in the age of Jackson was all about.").
12. See, e.g., ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 161 (1975) (federalism and protection of fugitive slaves);
13. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 391 (2004) (discussing federalism and desegregation);
14. Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947, 998-1007 (2002) (discussing federalism and gender equality).
15. For examples of this approach, see United States v. Lopez, 514 U. S. 549, 585-93 (1995) (Thomas, J., concurring);
16. New York v. United States, 505 U. S. 144, 163-167 (1992). It must be noted, however, that even the Court's leading originalists have strayed from this approach and adopted something like a "living constitution" analysis when it suited their purposes. For example, in his opinion for the
17. Court in Printz v. United States, 521 U. S. 898 (1997)
18. see also Brown v. Plata, 131 S. Ct. 1910, 1950 (2011) (Scalia, J., dissenting) ("There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa.");
19. Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545, 559 (2006) (discussing an originalist's argument that the Fourteenth Amendment does not protect against sex discrimination).
20. For a discussion of originalism's influence on the Federalist Society, see generally ORIGINALISM: A QUARTER-CENTURY OF DEBATE (Steven G. Calabresi ed., 2007). The first Federalist Society event was a symposium on federalism held at the Yale Law School in April 1982.
21. See STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW 138 (2008).
22. Peter J. Smith, Federalism, Instrumentalism, and the Legacy of the Rehnquist Court, 74 GEO. WASH. L. REV. 906, 906-07 (2006).
23. Pub. L. No. 111-148, 124 Stat. 119 (2010).
24. U. S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 9(2011), available at http://www.census.gov/prod/2011pubs/11statab/pop.pdf.
25. See, e.g., Charles M. Tiebout, A Pure Theory of Local Expenditure, 64 J. POL. ECON. 416, 416-19 (1956);
26. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1493 (1987) (book review).
27. New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
28. see generally Richard H. McAdams, Beyond Prisoners' Dilemma: Coordination, Game Theory, and Law, 82 S. CAL. L. REV. 209 (2009).
29. This theory played a crucial role in the Supreme Court's decision upholding the federal unemployment compensation system in Steward Machine Co. v. Davis, 301 U. S. 548 (1937). Writing for the Court, Justice Cardozo claimed that opponents of the system attacked it as an effort "to drive the state legislatures under the whip of economic pressure into the enactment of unemployment compensation
30. For a scholarly elaboration of the point in the context of environmental law, see Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L. J. 1196, 1197 (1977). Some scholars have argued that competition among states actually produces a race to the top.
31. See DAVID VOGEL, TRADING UP: CONSUMER AND ENVIRONMENTAL REGULATION IN A GLOBAL ECONOMY (1995). Others have claimed that interstate competition might reduce the level of regulation but produce the optimal amount of it.
32. See generally Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the Bottom" Rationale for Federal Environmental Regulation, 67 N. Y. U. L. REV. 1210 (1992).
33. Of course, if one equates optimality with the outcome of competition, this claim is tautological. But much of our politics is dominated by disagreement over just that equation. For an exploration of market defects that might lead to suboptimal outcomes in competitions between states, see Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 YALE L. & POL'Y REV. 67, 68 (1996).
34. See, e.g., S. C. State Highway Dep't v. Barnwell Bros., 303 U. S. 177, 184 n. 2 (1938) ("State regulations affecting interstate commerce, whose purpose or effect is to gain for those within the state an advantage at the expense of those without, or to burden those out of the state without any corresponding advantage to those within, have been thought to impinge upon the [Commerce Clause] even though Congress has not acted.").
35. For the classic elaboration of this point, see Duncan Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 STAN. L. REV. 387, 398-401 (1981).
36. See New State Ice Co. v. Liebmann, 285 U. S. 262, 263 (1932).
37. E.g., Christopher A. Bracey, Louis Brandeis and the Race Question, 52 ALA. L. REV. 859, 907 (2001).