Contemporary legal discourse concerning federalism has shifted from the formal to the normative, that is, from a focus on the fifty states as unique entities in the American constitutional firmament to a concern with the values of federalism. This normative turn has had some salutary effects. It has sharpened the debate over federalism, reminded us of the impact of the federal design on the substance of American governance, and underscored the interrelationship of government structure and individual rights. But the normative approach has also, paradoxically, moved the focus of federalism away from the states. Many of the arguments offered on behalf of federalism are not distinctively associated with the states, but, rather, could be advanced by the empowerment of other subnational units. Indeed, many of federalism's values are the same as those urged by the advocates of local governments when they make their case for the autonomy of local governments from the states. As a result, much of the "intellectual case for federalism" often converges with the case for decentralization, or localism.
The current normative emphasis thinking about federalism may have been inevitable in light of the erosion of the conceptual underpinnings that supported the traditional view of the states as special, such as the notion of the states as "sovereign" and the belief that the United States was founded by a compact of the states. Moreover, the normative approach to federalism is surely a more attractive way of addressing federal-state conflicts than an antiquarian concern with the allocation of domestic responsibilities between federal and state governments in the eighteenth century or vaporous reflections concerning the essential features of "States qua States."
But a discourse that focuses primarily on the "ism" in federalism rather than on the formal features of the federal structure generates new difficulties. First, many of the values of federalism-as-decentralization are opposed by compelling countervalues – widely accepted political norms that call for action at the national level rather than decentralization. Although federalism suggests that courts ought to enforce federalism-based restrictions on national actions, the existence of equally important countervalues that could be advanced by national action means that individual cases may entail intensely political judgments concerning these conflicting norms. A normative focus will thus provide an uncertain guide for the resolution of federalism disputes.
Constitutional Law | Law
"What About the 'Ism'?" Normative and Formal Concerns in Contemporary Federalism,
Vand. L. Rev.
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