Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. Lacking an autonomous realm of action, states infuse federal law with diversity and competition, aligning themselves with certain federal actors to oppose others. States also participate in national political contests on behalf of Americans both inside and outside their borders. They facilitate competition between the Democratic and Republican parties and offer staging grounds for national networks seeking to advance their agendas through direct democracy. Instead of focusing on state autonomy and distinctive interests, we should accordingly recognize contemporary American federalism as an expression of our multifarious nationalism. This need not lead us to answer Corwin’s question in the negative: precisely because states are disaggregated sites of national governance, not separate sovereigns, they continue to serve as vital cells of “democratic sentiment, impulse, and action.”
Administrative Law | Law | Law and Politics
From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism,
Yale L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1848