Academic journal article William and Mary Law Review

Cool Federalism and the Life-Cycle of Moral Progress

Academic journal article William and Mary Law Review

Cool Federalism and the Life-Cycle of Moral Progress

Article excerpt

INTRODUCTION: HOT AND COOL FEDERALISM

We can divide justifications for federalism-based structures of governance into hot federalism and cool federalism, with the distinction keyed to the reasons for resorting to a federal structure. By hot federalism, I mean the use of federal structures of governance to solve a type of problem that can arise when relatively settled and coherent social groups seek to create common structures of governance with other groups. Each group, we can imagine, is relatively homogeneous, with sufficient commonalities of experience, belief, commitment, language, and so on, to permit its members to enjoy a fair amount of trust and comfort with each other as members of a political community. But between or among the groups in question, there is substantially less commonality and substantially less trust and comfort with the prospect of becoming members of a single political community. The groups in question, nevertheless, wish to create or perpetuate some form of a trans-group union. This creates a problem in governance of the form: How can such groups work together in the face of the reluctance to concede full and ultimate authority to a trans-group governing entity?

Hot federalism is very important in the contemporary world, and the prospects for its success in various modern contexts are remarkable and exciting. There are reasons, however, to be a bit wary of the capacity of federal structures to overcome problems of the hot federalism variety. In the United States, we certainly began with hot federalism concerns, driven substantially by the issue of slavery. But our federal structure in this regard was a great failure, giving on to the tragedy of the Civil War. Recently, we have seen Canada nearly come apart, and the success of the federal structure there still seems a close question. Europe is moving rapidly to the embrace of a trans-national, federal structure of governance--far more rapidly than many would have imagined remotely possible; but it is still too early to assess the ultimate success of this extraordinary transition. The miracle of South Africa's constitutionalized revolution has made important use of a federal structure to permit wary groups to join under a national rule of law; but here too, it is a bit early to draw conclusive lessons. And Switzerland has always seemed too small and quirky to offer lessons for the rest of the world.

In any event, I mention hot federalism only to set it aside. It is cool federalism that interests me here. Cool federalism is substantially less ambitious. It aims not at making it possible for groups to coexist in governance structures that would otherwise be intolerably threatening, but at the more modest goal of making it possible for a political community to govern itself better--to get better, cheaper, or more widely accepted results than would otherwise be possible. The distinction is crude, but the rough idea is that cool federalism supports federal structures of governance in situations where it would be perfectly possible for a unitary structure to operate, but with the hope that a federal structure will improve governance in some salient way.

In this rough dichotomy, it seems reasonable to think in general of functional arguments for federal arrangements in the contemporary United States as claims in the domain of cool federalism. Indeed, I am inclined to the view that the only interesting arguments available to those who want to promote one or another view of contemporary federal arrangements in the United States are functional arguments of the cool federalism variety.

Here, the more precise question I want to reflect upon is the connection between the shape of the overlapping authority of state and federal governments to enforce civil rights and the virtues of cool federalism.

I. THE LIFE CYCLE OF MORAL PROGRESS IN AMERICAN POLITICS

Let us begin with this speculation: It frequently will be the case that moral progress in the project of securing political justice in the United States will follow a common course with regard to the interplay between state and federal sensibilities and consensus. …

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