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. …