Foreword: Federalism All the Way Down

By Gerken, Heather K. | Harvard Law Review, November 2010 | Go to article overview

Foreword: Federalism All the Way Down


Gerken, Heather K., Harvard Law Review


TABLE OF CONTENTS

I.   THE GHOST OF SOVEREIGNTY                                       11

     A. Process Federalists                                         14

     B. Minding the Gap                                             18

II.  PUSHING FEDERALISM ALL THE WAY DOWN                            21

     A. Why Stop with States?                                       22

     B. Why Stop with Cities?                                       23

     C. What's in a Name?                                           25

     D. Sovereignty and the Neglect of Special                      26
        Purpose Institutions

     E. Widening Federalism's Lens                                  28

        1. The "Apples to Apples" Problem                           28

        2. An Example: Rethinking the Jury                          30

III. THE POWER OF THE SOVEREIGN VERSUS THE POWER                    33
     OF THE SERVANT: SEPARATION OF POWERS, CHECKS
     AND BALANCES, AND FEDERALISM

     A. Federalism and the Separation of Powers                     33

     B. The Power of the Servant                                    35

     C. The Source of the Servant's Power                           37

        1. Interdependence                                          38

        2. Integration                                              39

        3. Serving Two Masters                                      40

IV. TOWARD A NATIONALIST ACCOUNT OF FEDERALISM-ALL                  44
    -THE-WAY-DOWN, OR: WHY NATIONALISTS SHOULD STOP
    WORRYING AND LEARN TO LOVE FEDERALISM

     A. Federalism All-the-Way-Down as                               44
        a Democratic Third Way

        1. The Conventional Poles of Democratic Design               45

        2. Minority Rule Without Sovereignty: A Middle Ground        45

     B. Federalism and Race                                          48

        1. The Dominance of the Diversity Model Outside of States    49

        2. Localism as a Double-Edged Sword                          50

           (a) The Hidden Costs of Diversity                         51

           (b)Federalism-All-the-Way-Down and                        52
              the Fourteenth Amendment

             (i) Politics, Economics, and Self-Help                  52

             (ii) Minority Rule and Racial Identity                  55

        3. Caveats                                                   58

     C. Federalism and Dissent                                       60

        1. The Marketplace of Ideas                                  61

        2. Dissent, Self-Governance, and Self-Expression             63

        3. Why the Principal-Agent Problem Isn't Always a Problem    65

          (a) The Case for Valuing the Principal-Agent Problem       67

          (b) Is the Game Worth the Candle?                          68

     D. Why the Nationalists Need to Move                            71
        Beyond Sovereignty as Well

V. CONCLUSION                                                       73

We make much of "Our Federalism." (1) The Supreme Court routinely crafts doctrine to further its ends, and paeans to federalism regularly appear in law reviews. Federalism is a system that permits minorities to rule, and we are intimately familiar with its benefits: federalism promotes choice, competition, participation, experimentation, and the diffusion of power. The Court reels these arguments off as easily as do scholars. (2)

The core divide between scholars and the Supreme Court centers on sovereignty. (3) The Court consistently invokes sovereignty, and scholars just as consistently deplore its invocation. Academics argue that sovereignty is in short supply in "Our Federalism." They insist that the formal protections sovereignty affords are unnecessary for achieving federalism's ends.

Even as scholars regularly announce the death of sovereignty, (4) they remain haunted by its ghost. …

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