Panel Recap: Localism and Democracy

At the inception of the American Constitution Society, just eight years ago, this panel might well have been viewed as an anomaly. Federalism was the watchword of conservatives struggling to constrain the power of the national government. How times have changed. As Ernie Young noted in his pre-conference blog post, "During the Bush years, progressives trained since the 1960's to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California's right to go its own way on environmental policy and Massachusetts' prerogatives to allow gay marriage at home and protest human rights violations abroad." The result has been a flourishing progressive federalism movement—or more accurately, as several panelists noted, a federalism without political valence. The four panelists last Saturday spoke to divergent features of today's federalism. What united their presentations was a sense of the dynamism and possibility of the new federalist movement.

Video courtesy of Yale Law School.

 

First to present were Ilya Somin and Ernie Young, who brought opposite perspectives to the question of how diminishing loyalties to particular states have altered the course of federalism. Somin argued that lower barriers to inter-state mobility promote federalism by facilitating "voting with your feet," even as the rise of federal funding reduces states' incentives to attract tax revenues. Young argued, to the contrary, that a resurgence of state loyalties is needed to foster rich cultures of federalist innovation within the states.

Locating Union Rights

Crosspost from Balkinization

The labor movement has long pined for the constitution, but the story of constitutional protection for workers’ collective rights is one of disappointment. The peak moments of constitutional intervention into union activity have been moments of hostility: most famously, early 20th Century courts invalidated scores of statutes that aimed to insulate workers’ collective action from employer retributions. When workers sought affirmative constitutional protection for their collective activities, the reception has been lukewarm at best.

With this history in mind, I join Richard Ford in the view that, when it comes to workers’ ability to engage in collective action to improve their lives, the Constitution is not the most likely source of progress for the 21st century. I also join Ford in thinking that progress for workers in the 21st Century, just as in the 20th, will depend on political and legislative action, and that what we need the constitution to do, in the main, is not to interfere. 

The Promise and Peril of Federalism in the 21st Century

Crosspost from Balkinization

American federalism faces both great promise and serious dangers over the next few years. One of the most important advantages of federalism is the ability to “vote with your feet” – to leave a state with oppressive or ineffective policies and move to a better one. Modern technology has greatly reduced the moving costs that previously made interstate migration difficult.  Information about different jurisdictions is easier to get than ever before. Increasing mobility and declining information costs give state and local governments stronger incentives to adopt policies that will be attractive to migrants. Revenue-hungry state governments know that valuable taxpayers will depart if they raise taxes too high or provide poor public services.

Some claim that federalism has lost its value because most Americans no longer feel any strong attachment to state governments. Yet this change may actually make federalism more effective. People who do not feel an attachment to their states are more willing to vote with their feet. This strengthens the incentive of state and local governments to adopt policies appealing enough to keep migrants from leaving. In an increasingly complex and  diverse society, federalism is also potentially more valuable than ever in its traditional role of providing divergent policies for people with differing preferences.

Preserving Democracy’s Laboratories

Crosspost from Balkinization

As Judith Resnik’s contribution to the “Constitution in 2020” volume makes clear, American federalism has neither a progressive nor a conservative political valence. In Wisconsin’s beautiful statehouse in Madison, one can almost sense the ghost of Robert LaFollette and other early Progressives, who initiated reforms in the states before taking them national. Nor should we forget Henry Adams’s observation that, prior to the Civil War, “there was no necessary connection” between “the slave power and states’ rights. . . . Slavery in fact required centralization in order to maintain and protect itself.” During the Bush years, progressives trained since the 1960’s to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California’s right to go its own way on environmental policy and Massachusetts’ prerogatives to allow gay marriage at home and protest human rights violations abroad.  After 2008, progressives will be tempted to shift back to reliance on national power.  But what has once turned can turn again, and 2016 might well bring back the “bad old days” in Washington, D.C.