Federalism All-the-Way-Down

Crosspost from Balkinization

Progressive legal scholars have tended to gravitate toward national institutions in the quest for a revised and rejuvenated politics. The project of imagining the Constitution in 2020 is an example. With some exceptions, it is mostly concerned with goings-on at the highest level of government. Constructing a progressive vision of the Constitution that can be implemented by federal courts and promoting national progressive legislation appear to be the primary tasks.

This focus on national institutions may be strategically and politically limiting. Often progressivism comes from below rather than from above. Remember Justice Brennan’s exhortation to liberals to look to state constitutions for the vindication of rights. Remember also Louis Brandeis urging the young New Dealers to “end this business of centralization” and go back to their states to do their work. Brandeis in particular represents a decentralist strand of the early progressive movement that forcefully advocated the devolution of power to local democratic institutions, that championed an activist and experimental government, and that harnessed the energies of city and state leaders toward the protection of workers, the middle class, and the poor.