Academic journal article Chicago Journal of International Law

Federalism Values and Foreign Relations

Academic journal article Chicago Journal of International Law

Federalism Values and Foreign Relations

Article excerpt

In attacking the orthodox view of an exclusive, incontestable federal monopoly over foreign relations, Edward T. Swaine argues, revisionist scholars have so far failed to address the "ultimate challenge [of] locating new functions and values for the states in a globalized, yet federal, world."1 Both the criticism and the underlying intuition strike me as substantially correct. The revisionist attempt to rehabilitate federalism and the states presupposes that federalism serves some important value or values. In light of the momentous changes wrought by a global, interconnected world, those values cannot simply be assumed; they have to be identified and defended.

That said, Swaine's proposed search for "new functions and values" seems needlessly ambitious. The central dynamics of globalization-increased international mobility of capital and labor, international treaty arrangements that reach deep into formerly domestic affairs, the operation of domestic corporations on a global scale and, conversely, of foreign corporations in home state markets-do, of course, compel a re-thinking of domestic arrangements. Still, it seems likely that the "new" federalism values and functions will be extensions and modifications of the old ones. The real question is whether a globalized world renders familiar features of federalism more functional and valuable, or less so.

One set of traditional federalism values that might be thought to gain increased currency in a globalized world revolves around political participation. States have traditionally been viewed as being "closer to the people" than the national government. Now that the forces and institutions that shape our lives are even more distant, alien, and unresponsive, it has become all the more important to cultivate and protect local attachments, mores, policies, and voices.2 An enhanced role for the states in international affairs on issues that might affect their citizens could improve the recognition and representation of local values, interests, and concerns.

An alternative set of traditional federalism values center around the benefits of jurisdictional diversity and competition. Jurisdictional diversity makes it possible to accommodate a wider range of citizen-consumer preferences more of the time. Competition among governments, coupled with the option of an "exit" for dissatisfied citizens and businesses, disciplines interest group politics. On this view, federalism merits preservation (or restoration) against national and international arrangements alike, for substantially the same reasons. Federalism merits a firm defense especially now that international arrangements provide revenue-hungry governments and rentseeking interest groups with enhanced opportunities to trump the salutary, disciplining force of jurisdictional competition.

Space constraints mercifully preclude anything resembling the full development of these two lines of argument and their implications for constitutional law and doctrine. The remainder of this article sketches the basic intuitions and presumptions that might inform a future analysis.

I strongly suspect that the "local participation" story is ultimately implausible. As an initial matter, the successful cultivation of local attachments does not appear to correspond, in any systematic way, to constitutional federalism arrangements. (It seems to work better in centralized France than in some federalist countries.) Even if that assessment is mistaken, the notion that local politics and participation might compensate for global alienation and dislocations is open to serious question. On some issues, more leeway for state governments would arguably help to counter civic alienation. By way of prominent example, the citizens of Massachusetts might feel better about themselves and their role in the world if they were permitted to register their disapproval of the government of Burma and corporations that deal with the SLORC (State Law and Order Restoration Council, or whatever that country and its junta may now be called). …

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