Federalism and Subsidiarity

Federalism and Subsidiarity: NOMOS LV

James E. Fleming
Jacob T. Levy
Copyright Date: 2014
Published by: NYU Press
Pages: 464
https://www.jstor.org/stable/j.ctt9qg4w4
  • Cite this Item
  • Book Info
    Federalism and Subsidiarity
    Book Description:

    InFederalism and Subsidiarity,a distinguished interdisciplinary group of scholars in political science, law, and philosophy address the application and interaction of the concept of federalism within law and government. What are the best justifications for and conceptions of federalism? What are the most useful criteria for deciding what powers should be allocated to national governments and what powers reserved to state or provincial governments? What are the implications of the principle of subsidiarity for such questions? What should be the constitutional standing of cities in federations? Do we need to remap federalism to reckon with the emergence of translocal and transnational organizations with porous boundaries that are not reflected in traditional jurisdictional conceptions? Examining these questions and more, this latest installation in the NOMOS series sheds new light on the allocation of power within federations.

    eISBN: 978-1-4798-2130-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-x)
    James E. Fleming and Jacob T. Levy
  4. CONTRIBUTORS
    (pp. xi-xii)
  5. PART I. FEDERALISM, POSITIVE BENEFITS, AND NEGATIVE LIBERTIES

    • 1 DEFENDING DUAL FEDERALISM: A SELF-DEFEATING ACT
      (pp. 3-21)
      SOTIRIOS A. BARBER

      Dual federalism is a doctrine of American constitutional law. Defending dual federalism is a self-defeating act because of what dual federalism is and what it means to defend it. Dual federalism is states’ rights federalism. It holds that when national authorities exercise their constitutional powers they must respect the reserved powers of the states. Dual federalism is to be distinguished from national federalism, which comes in two forms, Marshallian federalism and process federalism. I concentrate on Marshallian federalism here, though I will conclude with a comment on process federalism.

      Marshallian federalism holds that when the nation’s government is pursuing authorized...

    • 2 DEFENDING DUAL FEDERALISM: A BAD IDEA, BUT NOT SELF-DEFEATING
      (pp. 22-33)
      MICHAEL BLAKE

      There are many ways to call a position mistaken. The most common is to say that the position shouldn’t be held: the reasons given for that position are inadequate, perhaps, or the consequences of that position are bad. It’s more powerful to say that a positioncan’tbe held: those who defend it are engaging in a performative contradiction, perhaps, or must assert contradictory propositions simultaneously. Sotirios Barber thinks dual federalism can’t be held.¹ I think, in contrast, it shouldn’t be held. On my view, dual federalism is unattractive, but its defects are at the level of substantive morality; those...

    • 3 THE PUZZLING PERSISTENCE OF DUAL FEDERALISM
      (pp. 34-82)
      ERNEST A. YOUNG

      It may seem strange that, more than sixty years after Edward Corwin famously lamented “The Passing of Dual Federalism,”¹ this essay is part of a panel organized under the title “Against Dual Federalism.” Accusations that the Court was trying to revive federalism were commonplace in the early years of the Rehnquist Court’s “federalist revival.” I argued more than a decade ago that these charges were misplaced, and that the actual doctrines that the Court was articulating in cases likeUnited States v. Lopez² andPrintz v. United States³ could not really fit into the rubric of dual federalism.⁴ It is...

    • 4 FOOT VOTING, FEDERALISM, AND POLITICAL FREEDOM
      (pp. 83-120)
      ILYA SOMIN

      The idea of “voting with your feet” has been an important element in debates over federalism for several decades.¹ Economists, legal scholars, and others have analyzed its efficiency and equity. But foot voting is still underrated as a tool for enhancing political freedom: the ability of the people to choose the political regime under which they wish to live.²

      Section 2 of this essay explains some key ways in which foot voting in a federal system is often superior to ballot box voting as a method of political choice. A crucial difference between the two is that foot voting enables...

  6. PART II. CONSTITUTIONS, FEDERALISM, AND SUBSIDIARITY

    • 5 FEDERALISM AND SUBSIDIARITY: PERSPECTIVES FROM U.S. CONSTITUTIONAL LAW
      (pp. 123-189)
      STEVEN G. CALABRESI and LUCY D. BICKFORD

      We live in an Age of Federalism.¹ Of the G-20 countries with the most important economies in the world, at least twelve have federal constitutional structures and several others are experimenting with federalism and the devolution of power. The first group includes the United States, the European Union, India, Germany, Brazil, Argentina, Canada, Indonesia, Australia, Russia, Mexico, and South Africa. The latter group includes the United Kingdom, Spain, Belgium, Italy, and Japan. Of the ten countries with the highest GDPs in the world, only two—China and France—lack any semblance of a federal structure. Of the world’s ten most...

    • 6 SUBSIDIARITY, THE JUDICIAL ROLE, AND THE WARREN COURT’S CONTRIBUTION TO THE REVIVAL OF STATE GOVERNMENT
      (pp. 190-213)
      VICKI C. JACKSON

      Professor Steven Calabresi and Lucy Bickford have suggested that the concept of subsidiarity, an explicit aspect of the quasi-federal system in the European Union, is already inherent in the U.S. constitutional system; that it serves several distinct goals; and that it should be employed by courts in their doctrine.¹ As someone who has written positively about the idea of subsidiarity in the context of U.S. federalism in the past, I am delighted at their interest, though I part company on particulars.

      In the first section of this Comment, I raise some questions about their essay and what they mean by...

    • 7 COMPETING CONCEPTIONS OF SUBSIDIARITY
      (pp. 214-230)
      ANDREAS FØLLESDAL

      A principle of subsidiarity has gained prominence in law and politics as well as in legal and political theory, on topics ranging from U.S. constitutional interpretation and European integration to the constitutionalization of international law. Its popularity stems from its aspirations to address the allocation or use of authority within a political order, typically those where authority is dispersed between a center and various member units.¹ Subsidiarity places the burden of argument on those who seek to centralize such authority. Increased attention to subsidiarity is due not least to its inclusion in the 1991 Maastricht Treaty on European Union. The...

    • 8 SUBSIDIARITY AND ROBUSTNESS: BUILDING THE ADAPTIVE EFFICIENCY OF FEDERAL SYSTEMS
      (pp. 231-256)
      JENNA BEDNAR

      Subsidiarity—a systemic predilection for locating authority at the most local level feasible—has long been admired for its ability to protect localized, diverse interests from the tyranny of a national majority. In this chapter, I suggest a novel benefit of subsidiarity: it boosts the adaptive efficiency of federal systems. To remain relevant, federal systems must adapt to meet changing circumstances. The process of adaptation involves both pushing federalism’s boundaries in search of improved national-state balance and selecting beneficial changes and rejecting harmful ones, a job most efficiently conducted by a set of diverse, complementary safeguards. By drawing a distinction...

  7. PART III. THE ENTRENCHMENT OF LOCAL AND PROVINCIAL AUTONOMY, INTEGRITY, AND PARTICIPATION

    • 9 CITIES AND FEDERALISM
      (pp. 259-290)
      DANIEL WEINSTOCK

      In most countries, cities are constitutional nonentities.¹ That is, they exist at the pleasure of political entities that do have constitutional standing, be they substate entities like provinces, länder, or U.S. states, or sovereign states. Their boundaries can be redrawn at will, and what powers they hold are entrusted to them by the political entities upon which their existence depends.

      Coincidentally or not, cities have largely been ignored by political philosophers. Normative theorizing about cities in recent decades has been left up to sociologists,² legal scholars,³ political scientists,⁴ geographers,⁵ and planners.⁶

      These are both surprising facts. After all, the this-worldly...

    • 10 CITIES, SUBSIDIARITY, AND FEDERALISM
      (pp. 291-331)
      LOREN KING

      My aim here is to use the city as an analytic category, a lens through which to examine the principle of subsidiarity and the justification of federalism. I will argue that two powerful justifications for subsidiarity seem as if they should be mutually supporting but in fact pull us in different directions with respect to the justification of particular institutional strategies for realizing autonomy for distinct groups. I conclude by drawing out some implications of my analysis for the justification of federalism. I begin by explaining the ideas of subsidiarity and federalism, and explaining my chief aims more fully, before...

    • 11 THE CONSTITUTIONAL ENTRENCHMENT OF FEDERALISM
      (pp. 332-360)
      JACOB T. LEVY

      One of the most striking developments in the past ten years of constitutional theory has been the partial or wholesale critique of judicial review among those traditionally identified as “legal liberals” or “liberal legalists.” In its moderate versions, this critique encompasses Cass Sunstein’s account of judicial minimalism and Mark Tushnet’s call to “take the Constitution away from the courts.”¹ Its least moderate version is the sweeping critique Jeremy Waldron has offered over almost twenty years of all constitutional judicial review in well-functioning democratic systems.²

      These debates in recent political, legal, and constitutional theory about the idea, and legitimacy, of constitutional...

  8. PART IV. REMAPPING FEDERALISM(S)

    • 12 FEDERALISM(S)’ FORMS AND NORMS: CONTESTING RIGHTS, DE-ESSENTIALIZING JURISDICTIONAL DIVIDES, AND TEMPORIZING ACCOMMODATIONS
      (pp. 363-436)
      JUDITH RESNIK

      My interest is in the sources of identity and norms in federations and the methods for mediating conflicts. In contrast to many accounts of federalism, which assume the stability of the political units that constitute a federation and which posit that subject matter authority flows either to the central government or to its subunits, I argue that the domains of authority are not fixed but renegotiated as conflicts emerge about the import of rights and the content of jurisdictional allocations. Federalisms regularly create mediating mechanisms, including what I term “discounts”—temporizing accommodations in which either the rights claimed or the...

  9. INDEX
    (pp. 437-447)