Academic journal article Harvard Journal of Law & Public Policy

Depoliticizing Federalism

Academic journal article Harvard Journal of Law & Public Policy

Depoliticizing Federalism

Article excerpt

In his great biography of President Andrew Jackson, (1) Arthur Schlesinger, Jr. celebrated Jackson's defense of the rights of states and opposition to federal power. Yet as a midtwentieth-century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states' rights. (2) Was Schlesinger's position inconsistent? He did not think so, (3) and neither do I. In Jackson's time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. (4) State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine for redistribution and racial justice. (5) States' rights rhetoric served the interests of segregationists and reactionaries. (6)

Schlesinger's example poses an important challenge for those who want to generalize and depoliticize the argument about federal versus state power. The argument about federalism is, or at least should be, deeply contextual, and it is political to the core. In different times and places, federalism has differing relationships with substantive justice, (7) and, in all times and all places, people disagree about what counts as substantive justice. What we should be doing, therefore, is talking about our disagreements about substantive justice--about the appropriate role of markets and government, about redistribution and property rights, and about our obligations to the poor and individual freedom--instead of changing the subject to talk about federalism.

There are several ways in which legal scholars have attempted to depoliticize federalism. One way is to treat it as a question of constitutional law. On this view, instead of debating what policies our government should adopt, we should argue about what James Madison and his contemporaries thought or about what the words he and others wrote two centuries ago meant. (8)

This approach to federalism has played an important role in the history--not to say the name--of the Federalist Society, (9) but I am glad to see that the organizers and participants in this event seem to be moving away from it. The effort to think through the political economy of federalism--the subject matter of this panel--amounts to an implicit acknowledgment that the appropriate division of authority between the federal government and the States cannot, and should not, be read off a constitutional text written by deeply flawed authors during a deeply flawed process designed to deal with a country unrecognizably different from the one we live in today. The decision to talk about federalism in terms of political economy must be grounded in a concession that the Constitution does not resolve the issue.

This acknowledgement, belated as it is, should nonetheless be welcomed. Perhaps, in the fullness of time, it will lead to the acknowledgement of another obvious fact: All sides regularly use the rhetoric of federalism to advance contestable political positions. (10) I have made a standing offer to several of my colleagues to take them out to lunch if they can point to a single person living in the United States who favors the Patient Protection and Affordable Care Act (11) as a matter of policy but nonetheless regretfully concludes that it is unconstitutional. There are over 300 million women, men, and children from whom to choose, (12) but, as this Article goes to press, my colleagues have yet to identify one who meets these criteria. I am happy to extend the offer to the first reader of this Journal who comes up with such a person. (13)

The retreat to constitutional law is not the only way to depoliticize federalism, however. Unfortunately, the choice of subject matter for this panel effectively endorses another method. The assumption underlying that choice seems to be that the "science" of political economy provides an uncontroversial, apolitical, technocratic solution to questions about centralization of power. …

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