Partisan Federalism

By Bulman-Pozen, Jessica | Harvard Law Review, February 2014 | Go to article overview

Partisan Federalism

Bulman-Pozen, Jessica, Harvard Law Review


Federalism critically depends not only on the relationship between the state and federal governments, but also on the relationship of the people to the states and the nation. For federalism to work, much doctrine and scholarship insists, the people must politically identify with the states as well as the nation. Yet contemporary federalism scholars are skeptical that most Americans have state-based identities. Countering arguments that the fifty states are discrete civil societies, these scholars have suggested our political identity is national only.

This Part does not attempt to defend a notion of state identity as such but instead argues that we may be missing a powerful form of identification with states because our understanding of what constitutes political identity is too rigid. Americans need not regard states as distinctive civil societies or consistently prize their membership in the state polity for states to be meaningful sites of identification. When we expand our inquiry to encompass more fluid and contingent forms of state identity, partisanship emerges as a key variable, a reason for individuals to channel loyalty and affiliation toward states rather than toward the nation alone. After section II.A describes debates about state identity, section II.B argues that partisanship is a powerful sociopolitical identification, and section II.C illustrates how states serve as sites of partisan identification. ultimately, a focus on partisanship suggests that state-based identification may be shifting and partial--and, perhaps paradoxically, a means of expressing national identity--but nonetheless a significant buttress of American federalism.

A. Problems of Identity and Loyalty in American Federalism

An animating premise of much federalism doctrine and scholarship is that states must command political loyalty and identity. (133) For many federations, state-based affiliations are understood as prior to and necessitating federalism in the first instance. The point of federalism, on this view, is to accommodate diversity, to allow individuals who are different from each other in some important respect to live together and yet apart. (134) In other instances, commentators consider state-based loyalty a means to distinct ends that federalism aspires to guarantee. Federalism is said to preserve liberty, for example, by placing two governments in competition, but these two governments have power to compete only insofar as individuals identify with both; individuals' attachments to their states, in particular, hold centripetal forces in check. (135) Such accounts are often agnostic about the sources of state-based identity, recognizing that state borders may create, rather than simply reflect, political identities. (136) But they, too, posit states as necessary sites of identification.

What, then, generates state-based loyalties and identities in the united States? The answer suggested for many polities--ethnically, linguistically, or religiously identified communities--cannot be given. (137) In its place, some of the staunchest defenders of American federalism cast the states themselves as diverse cultural communities. on Daniel Elazar's influential account, for instance, each state is a "distinct societ[y]" (138) associated with a particular character and set of fundamental values. (139) Thus, for Elazar and his many successors, state borders may not map neatly onto race, language, religion, or the like, but states themselves reflect different American ethnocultural identities. (140) Instead of the Flemish and Walloons, we have Floridians and Washingtonians.

But accounts that treat state identities as distinctive, deep-seated, and fixed face a host of complications. Although the united States is not a homogenous polity, American heterogeneity does not closely track state borders. Today, individuals from Montana to Mississippi to Maine can eat at the same restaurant chains, shop at the same stores, read the same publications, and listen to the same music. …

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