Arguments related to federalism

Federalism


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This page presents an overview of the main areas arguments related to the history, theory, and practice of federalism. In the context of the United States, federalism refers to a system of government that divides power between the federal government and state governments, or between two or more state governments. For more information on federalism, click here.

Ballotpedia has identified five types of arguments related to the nature of federalism, as well as eight types of arguments opposing it, and nine types of arguments supporting it:

What is federalism?

Click the arrow (▼) in the list below to see claims under each argument.

1. Argument: The intentions of the Framers related to federalism have been misunderstood

2. Argument: Federalism is not the same as decentralization

3. Argument: Federalism is the middle-ground between disunity and centralization

4. Argument: Federalism is difficult to maintain

5. Argument: Federalism establishes opportunities for citizen engagement

Claim: Uncertainty over division of powers establishes opportunities for citizen engagement

If federalism is wrong or unnecessary, then why?

Click the arrow (▼) in the list below to see claims under each argument.

1. Argument: The Framers were wrong to establish a federal system of government

Claim: Federalism in the United States is outdated

2. Argument: Federalism is undemocratic

3. Argument: Federalism creates harmful competition between states

4. Argument: Federalism detracts from our identity as a national community

5. Argument: Federalism is an impediment to implementing the national will

6. Argument: Federalism fosters corruption

Claim: Large corporations can more easily control state and local governments

7. Argument: Federalism only works for developing nations

Claim: The stage of economic development in the United States is not suitable for federalism

8. Argument: A strong centralized government and a unified national will is necessary to check the powers of big businesses

If federalism is right or necessary, then why?

Click the arrow (▼) in the list below to see claims under each argument.

1. Argument: Federalism allows states to act as laboratories of democracy

2. Argument: Federalism enhances democracy

3. Argument: Federalism allows for and promotes healthy competition between states

4. Argument: Federalism prevents waste

Claim: Federalism allows states to innovate solutions based on local circumstances, which prevents waste that federal regulations often create

5. Argument: Federalism protects individual rights

6. Argument: Federalism supports stronger communities

7. Argument: Federalism reduces corruption

Claim: Federalism matches economic and political jurisdictions

8. Argument: Federalism allows people to be more active in and closer to the governing process

9. Argument: Federalism creates the greatest opportunity for the maximization of human potential

Claim: A federalist legal order is necessary for the greatest possible realization of human capacities

Click here to view arguments about federalism related to disaster relief.

What is federalism and what isn't it?

This section includes arguments about the nature of federalism, the Founders' views on federalism, whether contemporary federalism aligns with the Founders' intentions, and whether action is needed to preserve federalism.

Argument: The intentions of the Framers related to federalism have been misunderstood

This argument posits that an inaccurate understanding of the Constitution has led to misinterpretations of federalism and the authority granted to the federal government.

Claim: A broad reading of the commerce clause centralizes too much power in Congress

This claim suggests that the modern view of the commerce clause gives Congress too much power over anything related to commerce, including almost all manufacturing and production taking place in a single state. Instead, according to this view, the clause was only intended to give the federal government the ability to regulate trade between the 50 states.

Law professor Richard A. Epstein wrote in a 1987 article for the University of Chicago Law School, “The commerce power is not a comprehensive grant of federal power. It does not convert the Constitution from a system of government with enumerated federal powers into one in which the only subject matter limitations placed on Congress are those which it chooses to impose upon itself. Nor does the ‘necessary and proper’ clause work to change this basic design; although it seeks to insure that the federal power may be exercised upon its appropriate targets, it is not designed to run roughshod over the entire scheme of enumerated powers that precedes it in the Constitution.”^[1]

Epstein wrote, “Article I, section 8, contains an extensive list of separate, discrete, and enumerated powers granted to Congress, whereas article I, section 9, contains a comparable list of powers specifically denied to it. The lists of inclusion and exclusion suggest that the provisions contained in any one section should be read to recognize the existence and necessity of other specific powers and limitations contained elsewhere in article I, as well as the certainty that some matters are wholly beyond the power of Congress.”^[1]

Epstein continued, “A system which says that the commerce clause essentially allows the government to regulate anything that even indirectly burdens or affects commerce does away with the key understanding that the federal government has received only enumerated powers. The doctrine of ‘internal relations’ is not only a philosophical creed that says every event is related to every other separate event; it is also something of an economic truth in a world in which the price of any given commodity depends upon the costs of its inputs and upon the alternatives available to potential buyers. To say that Congress may regulate X because of its price effects upon any goods in interstate commerce, or because of its effects upon the quantity of goods so shipped, is to say that Congress can regulate whatever it pleases, a theory that cases such as Wickard v. Filburn have so eagerly inferred.”^[1]

Claim: The necessary and proper clause does not grant Congress unlimited power

This claim suggests that the necessary and proper clause was designed to prevent a limitation upon Congress’ means to achieve its enumerated ends and does not grant the federal government unlimited power.

Epstein wrote, “Nor is any of this understanding upset by the ‘necessary and proper’ clause of the Constitution, which may expand the power of Congress, but does not provide for an unlimited grant of federal power. The necessary and proper clause provides that Congress shall have the power ‘[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ As drafted the clause does nothing to upset the balance of power between the federal and the state governments, nor to contravene the principle of enumerated powers on which the structure of article I, section 8 rests. What the necessary and proper clause does is to ensure that the Congress shall have all means at its disposal to reach the heads of power that admittedly fall within its grasp.”^[1]

Claim: Federalism was a political compromise, not an idealistic aspiration

This claim suggests that federalism was established as a political compromise between independent state governments to grant authority to the central government; it was not designed as an idealistic aspiration.

In a 1988 article for the Columbia Law Review, professor Deborah Jones Merritt wrote, “The federal system resulted from a compromise between those who saw the need for a strong central government and those who were wedded to the independent sovereignty of the states. It was unthinkable to most eighteenth century citizens that the Constitution should abolish state governments. At the same time, the difficulties experienced under the Articles of Confederation demonstrated the need for a strong central power. Given these constraints, the Framers of the Constitution pursued the only practical course: a federal system that would maintain independent state governments while giving the new central government supreme authority in certain designated areas. Federalism in the United States thus was born as a political compromise rather than as a theoretical ideal.”^[2]

Claim: Citizens are granted sovereignty under the Constitution

This claim suggests that the Constitution was intended to grant sovereignty to citizens, as opposed to state or federal government.

Law professor Michael W. McConnell wrote in a 1987 article for the University of Chicago Law School, “The most persuasive inference from the text of the Constitution is that sovereignty rests in the people of the United States, and not in the governments of either the states or the nation. It follows that the extent of federal authority is neither more nor less than that delegated through the Constitution. That the states were in some sense sovereign prior to the Constitution seems largely irrelevant.”^[3]

Claim: America’s government deviates from the Framers’ vision

This claim states that the modern system of American federalism does not align with the vision the founders had for American government.

James M. Buchanan wrote, “We know now that United States history has destroyed Madison's vision. As a result of the destructive Civil War in the 1860s, secession was permanently eliminated as an effective extra-constitutional check on the progressive increase in central government authority. And, in the 20th century, constitutional guarantees against federal encroachment on the authority of states were undermined by executive, legislative, and judicial departures from established principles.”^[4]

Argument: Federalism is not the same as decentralization

This argument posits that federalism and decentralization are not synonymous, having different goals and outcomes.

Claim: Decentralization is neither superior to nor a substitute for federalism

This argument states that decentralization does not promote the same public benefits as federalism.

Writing for the 2001 Southern California Interdisciplinary Law Journal, Yale Law School Graduate Fellow Jason Mazzone wrote, “The social capital argument highlights an important advantage of federalism over mere decentralization. Social capital is enhanced when there are multiple sites of political power that promote the political activities of a large number of citizen groups and provide greater opportunities for direct forms of participation in public life. Decentralization increases the sites of political decisionmaking and may also increase opportunities for citizens to exert influence at multiple sites. In a decentralized system, however, power ultimately rests in the central authority, providing incentives for citizen groups to seek influence by strengthening their resources at the national level. In a federal system, consolidating resources at the national level may have very little impact on politics at the state level, because power, not merely decisionmaking authority, is dispersed. Citizens cannot depend on the national government to intervene on their behalf in the states. Instead, influence over state policies requires citizens to direct resources towards state government because that is the ultimate decisionmaker.”^[5]

Claim: Decentralization, not federalism, is better at securing citizen participation, state competition, and responsive governance

This claim suggests that federalism does not secure benefits commonly associated with it, such as increased citizen participation, more efficient state competition, and greater government responsiveness. According to this claim, such goals are the product of administrative decentralization.

Law professors Edward L. Rubin and Malcolm Feeley wrote, “We begin in Part I by defining federalism and distinguishing it from the separate concept of administrative decentralization. On the basis of this distinction, we demonstrate that federalism, once properly defined, does not secure citizen participation, does not make government more responsive or efficient by creating competition, and does not encourage experimentation. Assuming these are desirable goals - and some certainly are - they call for a decentralized regime, not a federal one. Having rejected these essentially instrumentalist arguments for federalism, we then turn to the major normative arguments - arguments that do not merge federalism with decentralization. The two leading arguments are that federalism diffuses governmental power, and that it secures community."^[6]

Rubin and Feeley wrote, “Once we recognize the distinction between federalism and decentralization, we can see that many standard arguments advanced for federalism are clearly nothing more than policy arguments for decentralization. These are the claims that some nationally-defined policy is best achieved by permitting regional variation. The point is not simply that federalism is unnecessary for implementing such policies, that it represents an unnecessary use of constitutional artillery. Rather, federalism is absolutely antithetical to these policies because it allows the wrong kinds of variation. Implementing a national policy through a decentralized system means that the permitted variations will be those that contribute to achieving the designated policy. In contrast, federalism allows the states to vary as they choose, pursuing their own policies instead of the national one. This can be justified only by arguments favoring a variety of policies, not by arguments favoring the implementation of a single policy by a variety of methods. Of the standard arguments for federalism, four are really arguments that specific national policies are best implemented by decentralized decision-making; these are public participation, effectuating citizen choice through competition among jurisdictions, achieving economic efficiency through competition among jurisdictions, and encouraging experimentation." All four reflect policies that are applicable to the American political context; while questions can certainly be raised about their desirability, they are at least plausible strategies for governing our country. They are national strategies, however, linked to federalism only by confusing that concept with decentralization, and by the airy, flag-waving-in-the-breeze rhetoric that characterizes the entire subject."^[6]

Rubin and Feeley wrote, “The answer suggested here is that ‘we’ means our national polity, because that is the real locus of public debate. Federalism, as opposed to decentralization, acts as a constraint on our ability, as a nation, to achieve the policies we want, including policies of participation, local variation, and experimentation. It may encourage some states to go further with these policies, but, more significantly, it permits other states to fall below the accepted minimum. One can only justify federalism by asserting that there is no ‘we’ - that the nation is not a political community. In that case, the variation among states, and their commitment to different normative positions, is not problematic, because there is no national standard below which they can fall, and, on average, states are as likely to reach the ‘right’ level as the national government. But our nation is indeed a political community; for better or worse, it does constitute our political sense of self and the arena in which our basic normative positions about government must be argued and resolved.”^[6]

Claim: Decentralization is different from federalism and can occur without federalism

This claim posits that federalism and decentralization are different and that decentralization can exist without federalism. It suggests that federalism differs from decentralization because decentralization exists when decision-making authority is delegated to subordinate governing units from a supreme central governing power. According to this claim, federalism grants rights and powers to states, which impedes effective governance.

Yale Law School Graduate Fellow Jason Mazzone wrote, “Federalism differs from decentralization because the latter exists when authority is delegated. A nationalist system of government might be decentralized when it decides to delegate decisionmaking authority to local officials. In contrast, under federalism, actual power is located as a structural matter at a more local level and the national government cannot decide to remove that power. A nationalist system is not necessarily more centralized than a federal system of government, because in a federal system the states might not themselves delegate power locally and the nationalist government might delegate extensively.”^[5]

Mazzone continued, “[B]ecause there is no necessary correlation between federalism and decentralization, these arguments should focus on the appropriate degree to which authority should be delegated and not on whether power should be localized as a structural matter.”^[5]

Rubin and Feeley wrote, “Decentralization is a managerial concept; it refers to the delegation of centralized authority to subordinate units of either a geographic or a functional character. Setting aside the political context for the moment, and focusing on the concept of decentralization as a matter of organization or systems theory, the main reason to decentralize is to achieve effective management. Very often, an administrator who is relatively close to the subject matter will be more knowledgeable, more responsive, and more involved than a higher ranking person ensconced in some distant central office. An industrial corporation might decentralize authority to factory managers, or a state university system might decentralize authority to the head of each constituent campus… But none of this has anything to do with federalism. All these decentralized systems are hierarchically organized and the leaders at the top or center have plenary power over the other members of the organization. Decentralization represents a deliberate policy that the leaders select, or at least approve, based on their view of the best way to achieve their goals. A decentralized system can be, and often is, the product of a purely managerial decision by a centralized authority. The essence of federalism, as a coherent political concept, is quite different. To be sure, federal systems share certain structural features with decentralized ones. The most basic is that, within a single system of governance, decisions are made by subsidiary units and the central authority defers to those decisions. But in a federal system, the subordinate units possess prescribed areas of jurisdiction that cannot be invaded by the central authority, and leaders of the subordinate units draw their power from sources independent of that central authority. Federalism is not a managerial decision by the central decision-maker, as decentralization can be, but a structuring principle for the system as a whole.”^[6]

Argument: Federalism is the middle-ground between disunity and centralization

This argument states that federalism is critically understood as a balance between total disunity and full centralization.

Claim: Federalism cannot exist when government is too centralized or overly decentralized

This claim posits that champions of federalism cannot dogmatically affirm or reject federal authority. Instead, they must seek out an optimal balance that allows for strong states and a strong central government.

Former Supreme Court Justice Antonin Scalia wrote, “In meeting to discuss federalism, we have to bear in mind that it is a form of government midway between two extremes. At one extreme, the autonomy, the disunity, the conflict of independent states; at the other, the uniformity, the inflexibility, the monotony of one centralized government. Federalism is meant to be a compromise between the two. As such, it is a stick that can be used to beat either dog. When Alexander Hamilton exalted its virtues, he meant it as a criticism of colonial disunity; we mean it today - in this group, at least - as a criticism of central control.”^[7]

Claim: Decentralization can go too far

This claim contends that federalism is an effective model, but too much decentralization can result in a variety of problems including waste, the inability of states to compete with the national government, and codependency between state governments.

Yale Law School Graduate Fellow Jason Mazzone wrote, “[T]he social capital argument cautions against shifting governmental power away from the states to the local level of cities, towns, and neighborhoods because these entities are likely too weak to compete with the national government over the appropriate division of power. Such a shift may potentially deplete social capital.”^[5]

Alexander T. Tabarrok wrote, “Note also that the subsidiarity principle also implies that decentralization can go too far. If we split the central district into two, then there could be wasteful duplication of services; two firehouses when one would do. Similarly when dealing with public goods the subsidiarity principle implies that the public goods with the largest extensive range should be supplied by the political jurisdiction with the largest extensive range. National defense is the obvious example. If national defense were left to the states each state would have an incentive to free ride on the provision of defense by the others. If New York pays for a nuclear missile, then why should New Jersey pay for anything at all?”^[8]

Claim: Centralization can go too far

This claim suggests that problems occur when the central government expands beyond its established authority. Two main issues that can develop from this expansion of authority include smaller units of government becoming dependent on the national government and the national government failing to fulfill its obligations.

Pietro S. Nivola wrote, “Why the paternalists in Washington cannot resist dabbling in the quotidian tasks that need to be performed by state and local officials would require a lengthy treatise on bureaucratic behavior, congressional politics, and judicial activism. Suffice it to say that the propensity, whatever its source, poses at least two fundamental problems.”^[9]
Nivola continued, “The first is that some state and local governments may become sloppier about fulfilling their basic obligations. The Hurricane Katrina debacle revealed how ill-prepared the city of New Orleans and the state of Louisiana were for a potent tropical storm that could inundate the region. There were multiple explanations for this error, but one may well have been habitual dependence of state and local officials on direction, and deliverance, by Uncle Sam."^[9]
Nivola continued, “Apart from creating confusion and complacency in local communities, a second sort of disorder begot by a national government too immersed in their day-to-day minutia is that it may become less mindful of its own paramount priorities.”^[9]

Argument: Federalism is difficult to maintain

This argument posits that federalism is decaying and institutions like federal courts need to help defend it.

Claim: Only federal courts can preserve federalism

This claim posits that only federal courts can defend federalism. According to this argument, states lack the power to defend their rights and powers under federalism themselves.

Michael S. Greve wrote, “As explained, competitive federalism presupposes enumerated powers. Enumerated powers, in tum, depend on judicial enforcement. The ‘process federalism’ notion that the states will protect themselves is hopelessly at odds with reality and, in Professor Van Alstyne's apt phrase, difficult to understand ‘as other than a goodhearted joke.’ Nor will Congress limit itself; barring constitutional constraints, it will suck the states (along with all else) into its impetuous vortex. When it comes to structural constitutional constraints, the federal courts are it. Either the courts constrain Congress, or else federalism is dead and will remain dead.”^[10]

Claim: Federal courts no longer favor federalism

This claim contends that federal courts used to protect state and local jurisdictions but have supported greater centralization since the New Deal.

Greves wrote, “In 1937 the judiciary abandoned the rules - enumerated powers - that forced the states to compete with each other and with the federal government. Sure enough, the market collapsed and gave way to what is, to all intents, a federal monopoly. Having deprived the citizens of the benefits of genuine choice and competition, the Supreme Court has now turned around to protect state and local governments. Acting as an intergovernmental antitrust agency of sorts, the Court intervenes every so often to restrain the federal monopolist and to ensure the survival of state and local governments, which serve as kinds of regulatory mom-and-pop stores. In politics as in markets, however, mom-and-pop stores are often uncompetitive operations with inferior service and higher prices, and for all their alleged flexibility and ‘closeness to the people,’ the states may be the least responsible, most interest-group-infested, most meddlesome of all government institutions. As Madison feared, the pernicious tendencies of faction are more difficult to control at the state level than at the federal level. This is precisely why competition must check and discipline state governments. The Supreme Court's federalism, however, shuns competition and instead extols the virtues of shopping locally. The Court subordinates consumer preferences to the protection of a producer cartel - and calls that ‘federalism.’”^[10]

Claim: There’s no significant historical court precedent for upholding federalism

This claim states that federal courts have consistently opposed federalism and ruled in favor of greater centralization since the Constitution’s framing.

Law professors Edward L. Rubin and Malcolm Feeley wrote, “In our view, federalism in America achieves none of the beneficial goals that the Court claims for it. Moreover, the federal courts, despite occasional oddities like Gregory, New York v. United States, or National League of Cities v. Usery, have not favored federalism at any time during their existence. To the contrary, they have been consistent opponents of federalist positions, as recent history demonstrates.”^[6]

Claim: Central control is growing stronger, local power is growing weaker, and the shift will likely continue

This claim contends that American government power is becoming more centralized and state and local jurisdictions will likely continue to grow weaker.

Claim: Globalization contributes to centralization

This claim posits that globalization encourages centralization because it prompts the federal government to remove local impediments to international trade and competition.

Pietro S. Nivola wrote, “National prosperity now rests more than ever on the ability of firms to compete in global markets, and on standardizing rules that might otherwise complicate the free flow of trade, foreign investment, and financial capital. In the United States, as in other major trading partners such as the European Union, it is no surprise that higher orders of government increasingly have moved to dismantle local impediments to negotiating international trade treaties, improving the competitive position of businesses, and streamlining financial markets. Globalization at least partly explains recent federal efforts to harmonize banking regulations and to challenge anticompetitive practices in some states—their decisions to harbor trade sanctions, for instance, and to countenance boundless tort litigation.”^[11]

Claim: States contribute to centralization

This claim posits that states contribute to centralization because state officials prefer to delegate decision-making on contentious issues to the national government so that they cannot be held politically responsible or forced to compete with other states for resources.

Pietro S. Nivola wrote, “This is not to say that national preemption is always instigated inside the Beltway. Sometimes state officials agitate to have their powers trumped. In the fiercely litigious arena of environmental policy, for instance, state and local officials have sought cover under the blanket of federal tutelage. Invoking a coast-to-coast rule, even if a blunt instrument, is often safer than trying to defend nuanced exercises of local discretion.”^[11]

Michael S. Greve wrote, “None of this means that the states will become cheerful advocates of a limited federal government. States do not want competition; they want a cartel. As a general matter, they would be stupid to want anything else. It may be possible, however, to split the states as a constituency and to induce more states to favor competition on a larger number of occasions. Let a few states exploit such cracks, and others may begin to look for different, larger openings. Such a development might in turn give the Supreme Court some confidence that federalism's intended beneficiaries at least do not oppose federalist competition and may even support it on appropriate occasions.”^[10]

Greves wrote, “In 1937 the judiciary abandoned the rules - enumerated powers - that forced the states to compete with each other and with the federal government. Sure enough, the market collapsed and gave way to what is, to all intents, a federal monopoly. Having deprived the citizens of the benefits of genuine choice and competition, the Supreme Court has now turned around to protect state and local governments. Acting as an intergovernmental antitrust agency of sorts, the Court intervenes every so often to restrain the federal monopolist and to ensure the survival of state and local governments, which serve as kinds of regulatory mom-and-pop stores. In politics as in markets, however, mom-and-pop stores are often uncompetitive operations with inferior service and higher prices, and for all their alleged flexibility and ‘closeness to the people,’ the states may be the least responsible, most interest-group-infested, most meddlesome of all government institutions. As Madison feared, the pernicious tendencies of faction are more difficult to control at the state level than at the federal level. This is precisely why competition must check and discipline state governments. The Supreme Court's federalism, however, shuns competition and instead extols the virtues of shopping locally. The Court subordinates consumer preferences to the protection of a producer cartel - and calls that ‘federalism.’”^[10]

Claim: Corporations prefer centralization

This claim posits that corporations prefer centralized power, especially when the national government is politically divided, because a gridlocked national government cannot check big businesses.

Pietro S. Nivola wrote, “The short answer to why projects like Senator Thompson’s fizzled is that corporations presently fear aggressive regulators and tax collectors in the state legislatures and bureaucracies even more than the divided, hence suitably gridlocked, governing institutions at the federal level. These business interests now look to preemptive acts of Congress not just to set baselines (floors) below which state policies must not fall but to secure compulsory ceilings on the possible excesses of zealous states. Perceived as disabling this type of legislated constraint on local zealotry, the Thompson bill was zapped by an eleventh-hour corporate lobbying blitz."^[11]

Pietro S. Nivola wrote, “Economic and technological changes will continue to furnish many reasonable arguments for replacing local with national, even international, standards. Whether the resulting regimentation is always commendable or not, powerful corporate lobbies will apply great pressure to secure it. Further, for this and other reasons, both parties in Congress remain receptive to centralist claims. There is not much basis for believing that all this will change. Multiple forces—including the role of the media and of contemporary campaign finance, to name but two—will continue to intensify the political temptations to nationalize, or preempt, public policy in the American federal system. At best, those temptations could only be tweaked, not suspended, by schemes such as a Federalism Accountability Act.”^[11]

Claim: The federal government’s spending power and mechanisms contribute to centralization

This claim states that some grant-in-aid programs undermine federalism and expedite centralization. Most programs, such as Medicaid, are too expensive for states to fund. Consequently, the federal government can attach strings to the funding needed for such programs and control most policy areas.

Pietro S. Nivola wrote, “At issue, again, is a variety of means by which the federal government dictates to the states what they must or must not do. The methods include policies that, technically, are grants-in-aid. In theory, states can decline to receive federal money, but in practice that option is mostly illusory, and federal stipulation of increasingly intricate grant conditions overrides or distorts local priorities. New federal strings are often attached after aid programs have been institutionalized; by then, powerful constituencies are so deeply invested in the programs, and so fiercely protective of them, that what started as a voluntary partnership with the states degenerates to federal arrogation. And typically, federal rules remain firmly in place even if congressional appropriations fall far short of authorizations. The local provision of special education for students with disabilities, for instance, is essentially governed by federal law, even though Congress has never appropriated anything near its authorized share of this $43 billion-a-year mandate.”^[11]

Claim: Both Democrats and Republicans in Congress have interests in furthering centralization

This claim posits that both parties in Congress will tend to support greater government centralization due to forces such as the demands of modern campaign financing.

Pietro S. Nivola wrote, “Economic and technological changes will continue to furnish many reasonable arguments for replacing local with national, even international, standards. Whether the resulting regimentation is always commendable or not, powerful corporate lobbies will apply great pressure to secure it. Further, for this and other reasons, both parties in Congress remain receptive to centralist claims. There is not much basis for believing that all this will change. Multiple forces—including the role of the media and of contemporary campaign finance, to name but two—will continue to intensify the political temptations to nationalize, or preempt, public policy in the American federal system. At best, those temptations could only be tweaked, not suspended, by schemes such as a Federalism Accountability Act.”^[11]

Claim: The media is a force for greater centralization

This claim posits the news media tends to exacerbate the nationalization of policy issues, contributing to the push for greater centralization of power.

Pietro S. Nivola wrote, “Economic and technological changes will continue to furnish many reasonable arguments for replacing local with national, even international, standards. Whether the resulting regimentation is always commendable or not, powerful corporate lobbies will apply great pressure to secure it. Further, for this and other reasons, both parties in Congress remain receptive to centralist claims. There is not much basis for believing that all this will change. Multiple forces—including the role of the media and of contemporary campaign finance, to name but two—will continue to intensify the political temptations to nationalize, or preempt, public policy in the American federal system. At best, those temptations could only be tweaked, not suspended, by schemes such as a Federalism Accountability Act.”^[11]

Argument: Federalism establishes opportunities for citizen engagement

This argument states that uncertainty exists concerning what would be a proper division of powers and that that is good because it creates more opportunities for citizens to engage in politics and compete for political influence.

Claim: Uncertainty over division of powers establishes opportunities for citizen engagement

This claim suggests that uncertainty over division of powers is good because it creates opportunities for citizens and citizen groups to engage in politics.

Yale Law School Graduate Fellow Jason Mazzone wrote, “The social capital argument for federalism also suggests that there is some value in uncertainty. An uncertain division of political power and ongoing struggles over the proper functions of different governing entities may in fact be a healthy aspect of our political system. Uncertainty creates opportunities for citizen engagement. Any search for a final, settled account of how to divide the functions of government among competing authorities may be unnecessary and perhaps, ultimately misguided.”^[5]

Mazzone continued, “From a social capital perspective, competition between the national government and the states over the appropriate division of power is a healthy feature of federalism. The ongoing struggle over the division of power presents constant opportunities for citizen groups to pursue their agendas. The struggle promotes social capital as a result.”^[5]

Mazzone wrote, “The social capital argument for federalism … points to the importance of competition between the national government and the states over the appropriate division of governmental power. Ongoing power struggles between the national and state governments provide constant opportunities for citizen groups to exert influence. When the division of power is clearly defined, citizen groups pursuing their agendas are able to direct their resources at the appropriate target. An ambiguous division of power, however, creates uncertainty regarding which government, national or state, will eventually make the decisions on a particular matter. This ambiguity in turn casts doubt on the merits of pursuing one avenue of influence rather than another––an uncertainty that citizen groups otherwise excluded from political influence can exploit.”^[5]

If federalism is wrong or unnecessary, then why?

Argument: The Framers were wrong to establish a federal system of government

This argument posits that federalism is no longer relevant to the United States’ system of government and that a new system should be implemented.

Claim: Federalism in the United States is outdated

This claim suggests that the United States operates under a federal system because of an outdated and sub-optimal compromise between the states that was never revised in modern times.

Law professors Edward L. Rubin and Malcolm Feeley wrote in the UCLA Law Review, “In fact, federalism is America's neurosis. We have a federal system because we began with a federal system; the new nation consisted of a group of self-governing units that had to relinquish some of their existing powers to a central government. We began with a federal system because of some now uninteresting details of eighteenth century British colonial administration. We carry this system with us, like any neurosis, because it is part of our collective psychology, and we proclaim its virtues out of the universal desire for self-justification. But our political culture is essentially healthy, and we do not let our neuroses control us. Instead, we have been trying to extricate ourselves from federalism for at least the last 130 years. When federalism is raised as an argument against some national policy, we generally reject it by whatever means are necessary, including, in one case, killing its proponents.”^[6]

Rubin and Feeley continued, “What we do argue is that decentralization is the only purpose states serve, and that they do not embody any important normative principle at this juncture in our history. The Supreme Court should never invoke federalism as a reason for invalidating a federal statute or as a principle for interpreting it. Thus, we subscribe to the conclusion stated in Garcia v. San Antonio Metropolitan Transit Authority. Our rationale for this conclusion, however, is not that the states are capable of protecting themselves, as Justice Blackmun's opinion argues, but that there is no normative principle involved that is worthy of protection.”^[6]

Argument: Federalism is undemocratic

This argument contends that federalism is not compatible with democratic ideals. This idea is related to issues of judicial decision-making authority and concerns regarding industry and capitalism.

Claim: Courts participate in judicial activism when they aim to support federalist principles by blocking democratic laws

This claim suggests that when courts step in to block democratic laws on the grounds of federalist principles, it is an act of judicial activism or "legislating from the bench," because it nullifies decisions made by representatives of the people.

Law professor Michael W. McConnell wrote in a 1987 University of Chicago Law Review article, “In 'The Founders' Design,' however, Berger refuses to recognize that most of the Supreme Court's retreat from federalism has been a product of deference to democratic choice and to the tendency to avoid the more dangerous type of error, even at the cost of the less dangerous one. Indeed, he fails to acknowledge the seemingly obvious conflict between judicial restraint and the aggressive judicial enforcement of federalism principles. ‘It is to be hoped,’ Berger comments in the book's concluding chapter, ‘that the historical facts may lead the court to curtail its increasing intrusion into the States' internal affairs’ (pp. 187-88) (emphasis added). He qualifies his hope by adding that ‘those who enjoy the exercise of uncurbed power are unlikely to surrender it merely because it has been usurped’ (p. 186). These comments might be closer to the mark if they dealt with Roe v. Wade, or with federal court takeover of state prisons and hospitals, or with judicial supervision of state codes of criminal procedure. In these contexts the courts might be said to have ‘usurped’ decisionmaking authority constitutionally vested in the state governments. But how can Berger say this of decisions upholding Acts of Congress, duly passed by representatives of the people? Is there no difference between judicial aggrandizement and judicial deference to legislative authority?"^[3]

Claim: Federalism undermines the ability of the people to check the power of large corporations

This claim suggests that federalism prevents the national government from limiting big businesses, allowing them to exploit poorer states and policy inconsistencies for their gain. According to this claim, smaller governments are more susceptible to corruption, which reduces the peoples’ ability to limit the exploitative power of businesses.

Harold Laski, a professor of political theory during the early and middle 20th century, wrote in "The Obsolescence of Federalism," “The poor state is parasitic on the body politic. It offers privileges to giant capitalism to obtain its taxable capacity, offers escape from the impositions of rich states, in order to wrest from the wealthy some poor meed of compensation for its backwardness. It dare not risk offending the great industrial empires—cotton, coal, iron and steel, tobacco—lest it lose the benefits of their patronage. Their vested interests thus begin to define the limits within which the units of the federation may venture to move. And since the division of powers limits, in its turn, the authority of the federal government to intervene—the latter being a government of limited powers—it follows that the great industrial empires can, in fact, prevent the legislation necessary to implement the purposes of a democratic society.”^[12]

Laski continued, “Giant industry requires a positive state; federalism, in its American form, is geared to vital negations which contradict the implications of positivism. Giant industry requires uniformities in the field of its major influence; American federalism is the inherent foe, both in time and space, of those necessary uniformities. Giant industry, not least, requires the opposition of a unified public will to counteract its tendency to undemocratic procedure through the abuse of power; a federal system of the American kind dissipates the unity of public opinion in those fields where it is most urgently required. And, above all, it is urgent to note that giant industry, in an age of economic contraction, is able to exploit the diversities of a federal scheme, through the delays they permit in the attainment of uniformity, to reactionary ends. Thereby, they discredit the democratic process at a time when it is least able to afford that discredit. For, thereby, the confidence of the citizen body in its power to work out democratic solutions of its problems is gravely undermined.”^[12]

Laski continued, “Men who are deprived of faith by inability to attain results they greatly desire do not long remain content with the institutions under which they live. The price of democracy is the power to satisfy living demands. American federalism, in its traditional form, cannot keep pace with the tempo of the life giant capitalism has evolved. To judge it in terms of its historic success is to misconceive the criteria by which it becomes valid for the present and the future. No political system has the privilege of immortality; and there is no moment so fitting for the consideration of its remaking as that which permits of reconstruction with the prospect of a new era of creative achievement.”^[12]

Argument: Federalism creates harmful competition between states

This argument posits that the existence of federalism allows for and promotes competition between states, which is a negative outcome according to this argument. According to this argument, competition under federalism incentivizes corruption and the prioritization of weak restraints on businesses at the expense of shareholders, consumers, and other stakeholders. This argument also contends that states compete in a “race for the bottom” to create rules that appeal to corporations and will never compete to limit exploitative businesses.

Claim: Competition between states creates a “race to the bottom” in corporate law where states try to attract businesses to increase tax revenue and please interest groups at the expense of everyone else

This claim posits that competition drives states to implement rules that benefit corporate managers and big businesses at the expense of shareholders, consumers, and other stakeholders. The arrangement creates a “race to the bottom” where the states compete to pass laws that disadvantage individuals and support exploitative corporate interests, according to this argument.

Law professor Lucian Arye Bebchuk wrote, “In designing corporate law rules, states competing to attract incorporations will have an incentive to focus on the interests of managers and shareholders and to ignore the interests of third parties not involved in incorporation decisions. Therefore, whenever significant externalities are present, states will tend to provide corporate law rules that differ from the socially desirable ones in a direction that systematically disfavors such third parties. Furthermore, the analysis shows that significant externalities are present in important areas of corporate law, including the regulation of takeover bids, proxy contests, and corporate disclosure and the protection accorded to creditors and other non-shareholder constituencies. I argue that federal law should be expanded to govern - or at least set minimum standards for - all aspects of these areas of corporate law.”^[13]

Bebchuk continued, “One major source of the shortcomings of state competition is the possible divergence between the interests of managers and controlling shareholders and the interests of public shareholders. Notwithstanding market forces and the need for shareholder approval to reincorporate, there are many issues with respect to which managers may well seek, and states in turn may well provide, rules that do not maximize shareholder value but rather serve the private interests of managers and controlling shareholders. In particular, the analysis has shown that state competition is likely to produce undesirable results with respect to issues that are significantly redistributive, issues that directly affect the strength of market discipline, and issues that involve potential transfers from public shareholders to a controlling shareholder. The second major source of the shortcomings of state competition is the presence of externalities. Because states seeking to attract incorporations have an incentive to focus on the interests of shareholders and managers, they will tend to ignore the interests of other parties. As a result, state competition may well produce undesirable rules whenever significant externalities are present. Because of this externality problem, state competition cannot be relied upon to produce socially desirable rules with respect to the regulation of takeovers, proxy contests, and disclosure; it also cannot be relied upon to provide socially desirable rules with respect to the protection accorded to creditors and other non-shareholder constituencies.”^[13]

Law professor William L. Cary wrote, “At the state level there appears to have been a failure to recognize the difference between the goals of industrial capitalism and the abuses of finance capitalism - the stage in which we appear to be today. Yet there appears to be no way out of the syndrome that has developed and that permits incorporation in any jurisdiction that may provide management freedom from restrictions. North Carolina initially, and New York subsequently, attempted to adopt some provisions in an effort to regulate foreign corporations doing business in the state (so-called pseudo-foreign corporations), but their efforts have been futile and the restrictions have been largely amended out of the law. State action cannot be effective in providing a responsible corporate statute.”^[14]

Cary continued, “In summary, as long as we operate within a capitalist society and as long as confidence in management is prerequisite to its continuance, there should be a federal interest in the proper conduct of the corporation itself as much as in the market for its securities. A civilizing jurisprudence should import lifting standards; certainly there is no justification for permitting them to deteriorate. The absurdity of this race for the bottom, with Delaware in the lead - tolerated and indeed fostered by corporate counsel - should arrest the conscience of the American bar when its current reputation is in low estate.”^[14]

Law professor Lucian Arye Bebchuk wrote, “First, state competition is likely to produce such rules with respect to issues that involve a potential transfer of significant value from shareholders to managers. Such issues include self-dealing transactions, taking of corporate opportunities, and insider trading. Second, state competition is likely to fail with respect to issues that directly affect the strength of market discipline, such as the regulation of takeover bids and proxy contests. Third, state competition is likely to yield undesirable rules with respect to issues that involve potential transfers between public shareholders and controlling shareholders, such as the regulation of going-private and parent-subsidiary freeze-outs. I argue that all of these issues, some of which are and traditionally have been governed by state corporate law, should be subject to federal rules or, at least, to federal minimum standards.”^[13]

Claim: State competition can work against the adoption of other desirable policies, including welfare

This claim suggests that state competition disincentivizes welfare and other redistributive policies, because wealthier and higher-earning individuals who would primarily fund the programs would tend to migrate to areas where the cost of redistributive policies was lower.

Law professor Michael W. McConnell wrote about destructive competition for government benefits and stated, “That significant external effects of this sort provide justification for national decisions is well understood - hence federal funding of defense, interstate highways, national parks, and medical research, and federal regulation of interstate commerce, pollution, and national labor markets. It is less well understood that nationalizing decisions where the impact is predominantly local has an equal and opposite effect. The framers' awareness that ill consequences flow as much from excessive as from insufficient centralization is fundamental to their insistence on enumerating and thus limiting the powers of the federal government.”^[3]

McConnell continued, “To be sure, the results of competition among states and localities will not always be salutary. State-by-state determination of the laws of incorporation likely results in the most efficient forms of corporate organization but state-by-state determination of the law of products liability seems to have created a liability monster. This is because each state can benefit in-state plaintiffs by more generous liability rules, the costs being exported to largely out-of-state defendants; while no state can do much to protect its in-state manufacturers from suits by plaintiffs in the other states. Thus, competition among the states in this arena leads to one-sidedly pro-plaintiff rules of law. The most important example of this phenomenon is the effect of state-by-state competition on welfare and other redistributive policies. In most cases, immigration of investment and of middle-to-upper income persons is perceived as desirable, while immigration of persons dependent on public assistance is viewed as a drain on a community's finances. Yet generous welfare benefits paid by higher taxes will lead the rich to leave and the poor to come. This creates an incentive, other things being equal, against redistributive policies. Indeed, it can be shown that the level of redistribution in a decentralized system is likely to be lower even if there is virtually unanimous agreement among the citizens that higher levels would be desirable. Where redistribution is the objective, therefore, advocates should and do press for federal programs, or at least for minimum federal standards. Thus, the competition among states has an uncertain effect: often salutary but sometimes destructive. There are races to the bottom as well as races to the top. Often one's view of the allocation of authority for specific issues will depend on a prediction as to substantive outcomes rather than a general theory of federalism.”^[3]

Claim: National rules are necessary to prevent undesirable effects of state competition

This claim suggests that state competition in the area of corporate law is likely to produce insufficient and undesirable rules. This should be addressed, according to this claim, with federal rules or federal minimum standards.

Law professor Lucian Arye Bebchuk wrote, “First, state competition is likely to produce such rules with respect to issues that involve a potential transfer of significant value from shareholders to managers. Such issues include self-dealing transactions, taking of corporate opportunities, and insider trading. Second, state competition is likely to fail with respect to issues that directly affect the strength of market discipline, such as the regulation of takeover bids and proxy contests. Third, state competition is likely to yield undesirable rules with respect to issues that involve potential transfers between public shareholders and controlling shareholders, such as the regulation of going-private and parent-subsidiary freeze-outs. I argue that all of these issues, some of which are and traditionally have been governed by state corporate law, should be subject to federal rules or, at least, to federal minimum standards.”^[13]

Bebchuk wrote, “One major source of the shortcomings of state competition is the possible divergence between the interests of managers and controlling shareholders and the interests of public shareholders. Notwithstanding market forces and the need for shareholder approval to reincorporate, there are many issues with respect to which managers may well seek, and states in turn may well provide, rules that do not maximize shareholder value but rather serve the private interests of managers and controlling shareholders. In particular, the analysis has shown that state competition is likely to produce undesirable results with respect to issues that are significantly redistributive, issues that directly affect the strength of market discipline, and issues that involve potential transfers from public shareholders to a controlling shareholder. The second major source of the shortcomings of state competition is the presence of externalities. Because states seeking to attract incorporations have an incentive to focus on the interests of shareholders and managers, they will tend to ignore the interests of other parties. As a result, state competition may well produce undesirable rules whenever significant externalities are present. Because of this externality problem, state competition cannot be relied upon to produce socially desirable rules with respect to the regulation of takeovers, proxy contests, and disclosure; it also cannot be relied upon to provide socially desirable rules with respect to the protection accorded to creditors and other non-shareholder constituencies.”^[13]

Law professor Michael W. McConnell wrote about destructive competition for government benefits and stated, “That significant external effects of this sort provide justification for national decisions is well understood - hence federal funding of defense, interstate highways, national parks, and medical research, and federal regulation of interstate commerce, pollution, and national labor markets. It is less well understood that nationalizing decisions where the impact is predominantly local has an equal and opposite effect. The framers' awareness that ill consequences flow as much from excessive as from insufficient centralization is fundamental to their insistence on enumerating and thus limiting the powers of the federal government.”^[3]

McConnell continued, “To be sure, the results of competition among states and localities will not always be salutary. State-by-state determination of the laws of incorporation likely results in the most efficient forms of corporate organization but state-by-state determination of the law of products liability seems to have created a liability monster. This is because each state can benefit in-state plaintiffs by more generous liability rules, the costs being exported to largely out-of-state defendants; while no state can do much to protect its in-state manufacturers from suits by plaintiffs in the other states. Thus, competition among the states in this arena leads to one-sidedly pro-plaintiff rules of law. The most important example of this phenomenon is the effect of state-by-state competition on welfare and other redistributive policies. In most cases, immigration of investment and of middle-to-upper income persons is perceived as desirable, while immigration of persons dependent on public assistance is viewed as a drain on a community's finances. Yet generous welfare benefits paid by higher taxes will lead the rich to leave and the poor to come. This creates an incentive, other things being equal, against redistributive policies. Indeed, it can be shown that the level of redistribution in a decentralized system is likely to be lower even if there is virtually unanimous agreement among the citizens that higher levels would be desirable. Where redistribution is the objective, therefore, advocates should and do press for federal programs, or at least for minimum federal standards. Thus, the competition among states has an uncertain effect: often salutary but sometimes destructive. There are races to the bottom as well as races to the top. Often one's view of the allocation of authority for specific issues will depend on a prediction as to substantive outcomes rather than a general theory of federalism.”^[3]

Argument: Federalism detracts from our identity as a national community

This argument contends that the idea of community should focus primarily on the national community of the United States, which is diminished by federalism.

Claim: The United States has one political community, which is a national community

This claim suggests that states are ineffective at fostering a sense of community and that a true sense of political community can only be established at the national level.

Law professors Edward L. Rubin and Malcolm Feeley wrote, “In essence, therefore, federalism protects nothing but itself; it is a sort of endangered species act for political ideas. That may have a certain charm, a quality that evokes small-town America and its homespun values, although not, one hopes, the languid life of the antebellum plantation, with the wind whispering through the magnolias and the slaves singing happily in the fields. Even at its best, sappy imagery of this sort provides no valid basis for constraining national policy. If ‘we’ - the political community of the United States - decide upon a particular course of action, federalism should not constrain its implementation.”^[6]

Rubin and Feeley continued, “The answer suggested here is that ‘we’ means our national polity, because that is the real locus of public debate. Federalism, as opposed to decentralization, acts as a constraint on our ability, as a nation, to achieve the policies we want, including policies of participation, local variation, and experimentation. It may encourage some states to go further with these policies, but, more significantly, it permits other states to fall below the accepted minimum. One can only justify federalism by asserting that there is no ‘we’ - that the nation is not a political community. In that case, the variation among states, and their commitment to different normative positions, is not problematic, because there is no national standard below which they can fall, and, on average, states are as likely to reach the ‘right’ level as the national government. But our nation is indeed a political community; for better or worse, it does constitute our political sense of self and the arena in which our basic normative positions about government must be argued and resolved.”^[6]

Rubin and Feeley continued, “We argue that federalism does not secure community because our real community is a national one.”^[6]

Rubin and Feeley continued, “Federalism, unlike the more general principle of managerial decentralization, only protects the rights of states, and all, or virtually all, American states are far too large to function as affective communities. … Because of the obvious disjunction between affective communities and states, the communitarian argument for federalism tends to emphasize a different claim: that state governments are more likely to protect and foster local communities than a remote federal government. But no theoretical argument or empirical evidence supports this proposition. Indeed, for reasons previously discussed, the only reliable way to establish a program of this sort throughout the nation is to have the national government implement it. Left to their own devices, some states might foster community, while others might attempt to extirpate it. Affective community, like any other uniform policy, is more likely to be achieved through comprehensive nation-wide action.”^[6]

Rubin and Feeley continued, “This nation-wide dispersion of ethnic and cultural identities, paralleling the dispersion of economic or ideological identities, does not mean that the concept of political community is inapplicable to the United States. What it means, rather, is that the United States has one political community, and that political community is the United States. The arena in which our political consciousness takes shape and our crucial decisions are made is a national one. It is the nation as a whole that constructs our sense of self and that provides a sense of participation in a larger group. Thus, American federalism is nothing more than decentralization because the normative claim of political community is not available to it. That claim, in any meaningful sense, belongs only to the nation as a single entity. Because our political community is so vast, the individual's sense of personal participation is generally quite attenuated. But this does not transform the states, counties, or cities, into true political communities. It simply means that most Americans will not be able to find personal fulfillment by participating in the collective decision-making process that shapes their consciousness and controls their lives.”^[6]

Claim: Federalism dispels the unity of public opinion

This claim suggests that federalism negatively affects the unity of public opinion at the national level, which undermines the strength of the national community to create democratic solutions to problems.

Harold Laski wrote, “Giant industry requires a positive state; federalism, in its American form, is geared to vital negations which contradict the implications of positivism. Giant industry requires uniformities in the field of its major influence; American federalism is the inherent foe, both in time and space, of those necessary uniformities. Giant industry, not least, requires the opposition of a unified public will to counteract its tendency to undemocratic procedure through the abuse of power; a federal system of the American kind dissipates the unity of public opinion in those fields where it is most urgently required. And, above all, it is urgent to note that giant industry, in an age of economic contraction, is able to exploit the diversities of a federal scheme, through the delays they permit in the attainment of uniformity, to reactionary ends. Thereby, they discredit the democratic process at a time when it is least able to afford that discredit. For, thereby, the confidence of the citizen body in its power to work out democratic solutions of its problems is gravely undermined.”^[12]

Argument: Federalism is an impediment to implementing the national will

This argument posits that federalism grants states the power to block the federal government from implementing national policies that benefit the national community.

Claim: Federalism constrains the implementation of national policy

This claim suggests that federalism prevents national policies from being implemented for the benefit of the national community. According to this claim, a system of administrative decentralization where ultimate power rests in the national government and is delegated to the states is superior to ideas of states rights under federalism.

Law professors Edward L. Rubin and Malcolm Feeley wrote, “In essence, therefore, federalism protects nothing but itself; it is a sort of endangered species act for political ideas. That may have a certain charm, a quality that evokes small-town America and its homespun values, although not, one hopes, the languid life of the antebellum plantation, with the wind whispering through the magnolias and the slaves singing happily in the fields. Even at its best, sappy imagery of this sort provides no valid basis for constraining national policy. If ‘we’ - the political community of the United States - decide upon a particular course of action, federalism should not constrain its implementation.”^[6]

Rubin and Feeley continued, “The answer suggested here is that ‘we’ means our national polity, because that is the real locus of public debate. Federalism, as opposed to decentralization, acts as a constraint on our ability, as a nation, to achieve the policies we want, including policies of participation, local variation, and experimentation. It may encourage some states to go further with these policies, but, more significantly, it permits other states to fall below the accepted minimum. One can only justify federalism by asserting that there is no ‘we’ - that the nation is not a political community. In that case, the variation among states, and their commitment to different normative positions, is not problematic, because there is no national standard below which they can fall, and, on average, states are as likely to reach the ‘right’ level as the national government. But our nation is indeed a political community; for better or worse, it does constitute our political sense of self and the arena in which our basic normative positions about government must be argued and resolved.”^[6]

Rubin and Feeley argued that most arguments for federalism are actually arguments for decentralization. They suggested that decentralization is superior to federalism because federalism hinders the pursuit of national goals. They wrote, “Once we recognize the distinction between federalism and decentralization, we can see that many standard arguments advanced for federalism are clearly nothing more than policy arguments for decentralization. These are the claims that some nationally-defined policy is best achieved by permitting regional variation. The point is not simply that federalism is unnecessary for implementing such policies, that it represents an unnecessary use of constitutional artillery. Rather, federalism is absolutely antithetical to these policies because it allows the wrong kinds of variation. Implementing a national policy through a decentralized system means that the permitted variations will be those that contribute to achieving the designated policy. In contrast, federalism allows the states to vary as they choose, pursuing their own policies instead of the national one. This can be justified only by arguments favoring a variety of policies, not by arguments favoring the implementation of a single policy by a variety of methods. Of the standard arguments for federalism, four are really arguments that specific national policies are best implemented by decentralized decision-making; these are public participation, effectuating citizen choice through competition among jurisdictions, achieving economic efficiency through competition among jurisdictions, and encouraging experimentation. All four reflect policies that are applicable to the American political context; while questions can certainly be raised about their desirability, they are at least plausible strategies for governing our country. They are national strategies, however, linked to federalism only by confusing that concept with decentralization, and by the airy, flag-waving-in-the-breeze rhetoric that characterizes the entire subject.”^[6]

Claim: States are not capable of handling issues with a national scope

This argument contends that state governments are incapable of addressing national problems, so the federal government needs more power.

Law professor Russell Pannier wrote, “The growth of federal power at the expense of state power has been caused by the apparent inability of the states to resolve problems of national scope. Many people believe that state governments cannot meet the challenges of the business cycle, war, pollution, technology, crime and much else.”^[15]

Claim: Federalism cannot meet the national demands that capitalism creates

This claim suggests that capitalism creates national demands that federalism is not equipped to handle. According to this claim, centralization is necessary to handle the demands.

Harold Laski wrote, “Men who are deprived of faith by inability to attain results they greatly desire do not long remain content with the institutions under which they live. The price of democracy is the power to satisfy living demands. American federalism, in its traditional form, cannot keep pace with the tempo of the life giant capitalism has evolved. To judge it in terms of its historic success is to misconceive the criteria by which it becomes valid for the present and the future. No political system has the privilege of immortality; and there is no moment so fitting for the consideration of its remaking as that which permits of reconstruction with the prospect of a new era of creative achievement.”^[12]

Laski continued, “Giant industry requires a positive state; federalism, in its American form, is geared to vital negations which contradict the implications of positivism. Giant industry requires uniformities in the field of its major influence; American federalism is the inherent foe, both in time and space, of those necessary uniformities. Giant industry, not least, requires the opposition of a unified public will to counteract its tendency to undemocratic procedure through the abuse of power; a federal system of the American kind dissipates the unity of public opinion in those fields where it is most urgently required. And, above all, it is urgent to note that giant industry, in an age of economic contraction, is able to exploit the diversities of a federal scheme, through the delays they permit in the attainment of uniformity, to reactionary ends. Thereby, they discredit the democratic process at a time when it is least able to afford that discredit. For, thereby, the confidence of the citizen body in its power to work out democratic solutions of its problems is gravely undermined.”^[12]

Laski continued, “The central point of my argument is the simple one that in every major field of social regulation, the authority of which the federal government can dispose is utterly inadequate to the issues it is expected to solve. I do not think this argument is invalidated by the rise of cooperation between the federal government and the states, or between groups of states.”^[12]

Laski continued, “The poor state is parasitic on the body politic. It offers privileges to giant capitalism to obtain its taxable capacity, offers escape from the impositions of rich states, in order to wrest from the wealthy some poor meed of compensation for its backwardness. It dare not risk offending the great industrial empires—cotton, coal, iron and steel, tobacco—lest it lose the benefits of their patronage. Their vested interests thus begin to define the limits within which the units of the federation may venture to move. And since the division of powers limits, in its turn, the authority of the federal government to intervene—the latter being a government of limited powers—it follows that the great industrial empires can, in fact, prevent the legislation necessary to implement the purposes of a democratic society.”^[12]

Argument: Federalism fosters corruption

This argument posits that federalism contributes to corruption among state and local governments, which are more susceptible to capture from corporate interests.

Claim: Large corporations can more easily control state and local governments

This claim suggests that corporations can more easily influence state and local governments than the national government.

Harold Laski wrote, “My argument is the very different one: that (a) there are certain objects of administrative control now left to the states for which they are no longer suitable units of regulation. Economic centralization makes necessary at least minimum standards of uniform performance in these objects, e.g., health, education, unemployment relief; and in others, e.g., labor conditions, railroad rates, electric power, complete federal control without interference by the states; and (b) that the proper objects of federal supervision cannot any longer be dependent upon state consent. Where this dependency exists, state consent will be, in its turn, largely controlled by giant capitalism.”^[12]

Laski continued, “The poor state is parasitic on the body politic. It offers privileges to giant capitalism to obtain its taxable capacity, offers escape from the impositions of rich states, in order to wrest from the wealthy some poor meed of compensation for its backwardness. It dare not risk offending the great industrial empires—cotton, coal, iron and steel, tobacco—lest it lose the benefits of their patronage. Their vested interests thus begin to define the limits within which the units of the federation may venture to move. And since the division of powers limits, in its turn, the authority of the federal government to intervene—the latter being a government of limited powers—it follows that the great industrial empires can, in fact, prevent the legislation necessary to implement the purposes of a democratic society.”^[12]

Argument: Federalism only works for developing nations

This argument posits that federalism is suitable for developing nations in the midst of expanding capitalism. It is not, according to this argument, suitable for the stage of social and economic development the United States has reached.

Claim: The stage of economic development in the United States is not suitable for federalism

This claim suggests that the United States has reached a level of economic and social development that is no longer suitable for federalism.

Harold Laski wrote, “My plea here is for the recognition that the federal form of state is unsuitable to the stage of economic and social development that America has reached. I infer from this postulate two conclusions: first, that the present division of powers, however liberal be the Supreme Court in its technique of interpretation, is inadequate to the needs America confronts and, second, that any revision of those powers is one which must place in Washington, and Washington only, the power to amend that revision as circumstances change. I infer, in a word, that the epoch of federalism is over, and that only a decentralized system can affectively confront the problems of a new time.”^[12]

Laski continued, “To continue with the old pattern, in the age of giant capitalism, is to strike into impotence that volume of governmental power which is necessary to deal with the issues giant capitalism has raised. Federalism, I suggest, is the appropriate governmental technique for an expanding capitalism, in which the price of local habit—which means, also, local delay—admits of compensation in the total outcome. But a contracting capitalism cannot afford the luxury of federalism. It is insufficiently positive in character; it does not provide for sufficient rapidity of action; it inhibits the emergence of necessary standards of uniformity; it relies upon compacts and compromises which take insufficient account of the urgent category of time; it leaves the backward areas a restraint, at once parasitic and poisonous, on those which seek to move forward; not least, its psychological results, especially in an age of crisis, are depressing to a democracy that needs the drama of positive achievement to retain its faith.”^[12]

Argument: A strong centralized government and a unified national will is necessary to check the powers of big businesses

This argument states that big businesses have the potential power to exploit individuals and smaller units of government. This power, according to this argument, needs a centralized government and a unified public will to keep it in check.

Claim: A unified national will protects against exploitation by big businesses

This claim suggests that a unified public will is necessary to protect individuals and local governments against potential exploitation by businesses.

Harold Laski wrote, “Giant industry requires a positive state; federalism, in its American form, is geared to vital negations which contradict the implications of positivism. Giant industry requires uniformities in the field of its major influence; American federalism is the inherent foe, both in time and space, of those necessary uniformities. Giant industry, not least, requires the opposition of a unified public will to counteract its tendency to undemocratic procedure through the abuse of power; a federal system of the American kind dissipates the unity of public opinion in those fields where it is most urgently required. And, above all, it is urgent to note that giant industry, in an age of economic contraction, is able to exploit the diversities of a federal scheme, through the delays they permit in the attainment of uniformity, to reactionary ends. Thereby, they discredit the democratic process at a time when it is least able to afford that discredit. For, thereby, the confidence of the citizen body in its power to work out democratic solutions of its problems is gravely undermined.”^[12]

Laski continued, “What, at least, is certain is this: that a government the powers of which are not commensurate with its problems will not be able to cope with them. Either, therefore, it must obtain those powers, or it must yield to a form of state more able to satisfy the demands that it encounters. That is the supreme issue before the United States today; and the more closely it is scrutinized the more obviously does its resolution seem to be bound up with the obsolescence of the federal system.”^[12]

Laski continued, “It must be emphasized that the unity which giant capitalism postulates in the economic sphere postulates a corresponding unity in the conference of political powers upon the federal government. There is no other way, up to a required minimum, in which the questions of taxation, labor relations and conditions, conservation, public utilities (in the widest sense), to take examples only, can be met.”^[12]

Laski continued, “To continue with the old pattern, in the age of giant capitalism, is to strike into impotence that volume of governmental power which is necessary to deal with the issues giant capitalism has raised. Federalism, I suggest, is the appropriate governmental technique for an expanding capitalism, in which the price of local habit—which means, also, local delay—admits of compensation in the total outcome. But a contracting capitalism cannot afford the luxury of federalism. It is insufficiently positive in character; it does not provide for sufficient rapidity of action; it inhibits the emergence of necessary standards of uniformity; it relies upon compacts and compromises which take insufficient account of the urgent category of time; it leaves the backward areas a restraint, at once parasitic and poisonous, on those which seek to move forward; not least, its psychological results, especially in an age of crisis, are depressing to a democracy that needs the drama of positive achievement to retain its faith.”^[12]

Claim: Small units of government are at risk of being exploited by capitalism

This claim suggests that lower levels of government do not have the power to check big businesses.

Laski continued, “The view here urged, of course, looks toward a fundamental reconstruction of traditional American institutions. It is not impressed by the view, associated with the great name of Mr. Justice Brandeis, that the ‘curse of bigness’ will descend upon any serious departure from the historic contours of federalism. The small unit of government is impotent against the big unit of giant capitalism.”^[12]

Laski continued, “Giant capitalism has, in effect, concentrated the control of economic power in a small proportion of the American people. It has built a growing contrast between the distribution of that economic power and the capacity of the political democracy effectively to control the results of its exercise. It has transcended the political boundaries of the units in the American federation so as to make them largely ineffective as areas of independent government. … For forty-eight separate units to seek to compete with the integrated power of giant capitalism is to invite defeat in every element of social life where approximate uniformity of condition is the test of the good life.”^[12]

Claim: A centralized government protects state governments from being controlled by capitalism

This claim suggests that corporate interests and the desire to attract corporate tax revenues often control state governments.

Laski continued, “The poor state is parasitic on the body politic. It offers privileges to giant capitalism to obtain its taxable capacity, offers escape from the impositions of rich states, in order to wrest from the wealthy some poor meed of compensation for its backwardness. It dare not risk offending the great industrial empires—cotton, coal, iron and steel, tobacco—lest it lose the benefits of their patronage. Their vested interests thus begin to define the limits within which the units of the federation may venture to move. And since the division of powers limits, in its turn, the authority of the federal government to intervene—the latter being a government of limited powers—it follows that the great industrial empires can, in fact, prevent the legislation necessary to implement the purposes of a democratic society.”^[12]

Laski continued, “My argument is the very different one: that (a) there are certain objects of administrative control now left to the states for which they are no longer suitable units of regulation. Economic centralization makes necessary at least minimum standards of uniform performance in these objects, e.g., health, education, unemployment relief; and in others, e.g., labor conditions, railroad rates, electric power, complete federal control without interference by the states; and (b) that the proper objects of federal supervision cannot any longer be dependent upon state consent. Where this dependency exists, state consent will be, in its turn, largely controlled by giant capitalism.”^[12]

Laski said, “Men who are deprived of faith by inability to attain results they greatly desire do not long remain content with the institutions under which they live. The price of democracy is the power to satisfy living demands. American federalism, in its traditional form, cannot keep pace with the tempo of the life giant capitalism has evolved. To judge it in terms of its historic success is to misconceive the criteria by which it becomes valid for the present and the future. No political system has the privilege of immortality; and there is no moment so fitting for the consideration of its remaking as that which permits of reconstruction with the prospect of a new era of creative achievement.”^[12]

If federalism is right or necessary, then why?

Argument: Federalism allows states to act as laboratories of democracy

This argument posits that the freedom of states to experiment with policy without central intervention allows for the creation of innovative policies.

Claim: A decentralized system allows for new programs and policies to be tested on a smaller scale

This claim suggests that a decentralized system of government allows for new social and economic programs or policies to be tested on a smaller scale before implementing them in other states or at the national level. According to this claim, the decentralized method implies less risk and creates an environment where states can learn from each other.

Law professor Deborah Jones Merrit wrote, “Finally, as Justice Brandeis observed more than fifty years ago, each of the states ‘serve[s] as a laboratory’ that may ‘try novel social and economic experiments without risk to the rest of the country.’ State governments repeatedly have proved the truth of this statement by pioneering new social and economic programs. Unemployment compensation, minimum-wage laws, public financing of political campaigns, no-fault insurance, hospital cost containment, and prohibitions against discrimination in housing and employment all originated in state legislatures. When these programs proved their worth on the state level, they expanded into nationwide programs. Many scholars point to the continued existence of strong state governments as a principal source of governmental innovations.”^[16]

Law professor Russell Pannier wrote, “A side benefit of allocating independent political power to states is that each state can learn from the results of other states' choices. Each state is a forum for legal and social experimentation.”^[15]

Alexander T. Tabarrok wrote, “In a decentralized system ideas can be tried at the local level, there learning occurs, ideas are improved and then begin to diffuse throughout the rest of the country. This idea is more than theoretical. Airline deregulation began at the state level and was adopted nationally when it was noticed that in-state trips in large states that had deregulated were much cheaper than trips of the same distance that crossed state lines. Welfare reform and school choice are two other examples of recent policies that began at the state level. The lessons learned need not always be positive lessons. Other states and countries owe California a great debt, for example, for its demonstration of how not to deregulate electricity.”^[8]

Claim: Federalism makes it possible for policies to account for local needs and conditions

This claim suggests that federalism allows state and local governments to take local needs and conditions into account when implementing policies. According to this claim, localized policies are often superior to national policies the federal government enacts.

Law professor Michael W. McConnell wrote, “The first, and most axiomatic, advantage of decentralized government is that local laws can be adapted to local conditions and local tastes, while a national government must take a uniform - and hence less desirable - approach. So long as preferences for government policies are unevenly distributed among the various localities, more people can be satisfied by decentralized decision-making than by a single national authority.”^[3]

Claim: Federalism incentivizes local governments to be innovative

This claim suggests that federalism incentivizes local governments to be more innovative and to adopt popular policies to attract taxpayers.

McConnell continued, “A final reason why federalism has been thought to advance the public good is that state and local governmental units will have greater opportunity and incentive to pioneer useful changes. A consolidated national government has all the drawbacks of a monopoly: it stifles choice and lacks the goad of competition. Lower levels of government are more likely to depart from established consensus simply because they are smaller and more numerous. Elementary statistical theory holds that a greater number of independent observations will produce more instances of deviation from the mean. If innovation is desirable, it follows that decentralization is desirable. This statistical proposition is strengthened, moreover, by the political reality that a smaller unit of government is more likely to have a population with preferences that depart from the majority's. It is, therefore, more likely to try an approach that could not command a national majority. Perhaps more important is that smaller units of government have an incentive, beyond the mere political process, to adopt popular policies. If a community can attract additional taxpayers, each citizen's share of the overhead costs of government is proportionately reduced.”^[3]

Argument: Federalism enhances democracy

This argument posits that federalism enhances democracy because it allows decision-making to occur at the local level.

Claim: Decision-making at a lower level of government allows elected officials to directly respond to the needs of citizens

This claim suggests that granting decision-making authority to elected officials at the local level makes elected representatives more responsive to the needs of citizens, which enhances democracy.

Yale Law School Graduate Fellow Jason Mazzone wrote, “[D]emocracy is enhanced when decisionmaking occurs at a more local level because elected representatives become more responsive to the needs of individuals and citizens are able to participate more meaningfully in self-governance.”^[5]

Claim: Federalism protects liberty by allowing people to live under government that is tailored to their backgrounds

This claim suggests that federalism allows individuals to live within smaller units of government that implement diverse policies that are more tailored to their political interests.

The late economist James M. Buchanan wrote, “If, however, we now introduce prospects for heterogeneity in the inclusive constituency, the argument for federalization is surely strengthened. Small units, defined geographically or territorially, are likely to be more homogeneous in makeup than larger units, and the individual is more likely to share preferences for political action with his or her peers than would be the case where political interaction must include persons who are considered to be ‘foreign,’ whether the lines here be drawn racially, ethnically, religiously, economically, or otherwise. If the end objective is the minimization of politically orchestrated coercion, the individual will, personally, feel under less potential threat in a community of similarly situated peers than in a large community that embodies groups with differing characteristics.”^[17]

Alexander T. Tabarrok, a professor of economics, wrote, “The diversity of preference view says that even in the long run, policies will differ across jurisdictions because people have different preferences. What is best for Rhode Island is not necessarily what is best for California, and what is best for San Jose is not necessarily what is best for San Francisco. By decentralizing power one can better match preferences with policies.”^[8]

Law professor Deborah Jones Merritt wrote, “The third advantage of independent state governments stems from the political and cultural diversity they provide. Acting through their state and local governments, citizens in each region create the type of social and political climate they prefer. Alaska spends $8,627 per pupil for elementary and secondary education, while Utah spends only $2,053.41 Some states have enacted stringent pollution control laws and high industrial taxes, while Louisiana advertises itself as the ‘Right-to-Profit State.’ The city of Santa Monica in California has established social welfare programs that critics dub ‘a form of socialism’. For a nation composed of diverse interest groups, this opportunity to express different social and cultural values is essential.”^[2]

Pietro S. Nivola, a professor of economics, wrote, “The larger point here is that when top-heavy federal regulations indiscriminately narrow local options, they risk stifling local innovations and foreclosing solutions that fit local circumstances. The result can be enormously wasteful.”^[11]

Former Supreme Court Justice Antonin Scalia wrote, “The decision concerning which level of government should have the last word is, therefore, a pragmatic one, to be determined by the practicalities of the matter. To be sure, decision at a lower level of government tends to maximize overall satisfaction, by permitting diversity instead of submerging large regional majorities beneath a narrow national vote. But that is a practical rather than a transcendental concern, to be laid beside other practical concerns such as the need for national rather than local enforcement of certain prescriptions. It justifies a predisposition towards state and local control - but not, I think, the degree of generalized hostility towards national law which has become a common feature of conservative thought.”^[7]

Claim: Smaller units of government allow communities to implement policies that may not appeal to the national majority

This claim suggests that state and local governments allow communities to test and implement policies that appeal to constituents, rather than implementing policies to appeal to the masses.

Law professor Michael W. McConnell wrote, “A final reason why federalism has been thought to advance the public good is that state and local governmental units will have greater opportunity and incentive to pioneer useful changes. A consolidated national government has all the drawbacks of a monopoly: it stifles choice and lacks the goad of competition. Lower levels of government are more likely to depart from established consensus simply because they are smaller and more numerous. Elementary statistical theory holds that a greater number of independent observations will produce more instances of deviation from the mean. If innovation is desirable, it follows that decentralization is desirable. This statistical proposition is strengthened, moreover, by the political reality that a smaller unit of government is more likely to have a population with preferences that depart from the majority's. It is, therefore, more likely to try an approach that could not command a national majority. Perhaps more important is that smaller units of government have an incentive, beyond the mere political process, to adopt popular policies. If a community can attract additional taxpayers, each citizen's share of the overhead costs of government is proportionately reduced.”^[3]

Claim: Local politics are less contentious than national politics due to greater homogeneity

This claim suggests that popular political campaigns are often less contentious when issues are addressed at the local level as opposed to national responses to the issue.

Michael S. Greve wrote, “A more decentralized politics is a calmer, more responsible politics. The Leave-Us-Aloners' campaigns often turned shrill and ideological because national policy elites and institutions had decided to nationalize the issue (think gun control), to stamp out local experiments (think school choice), or to prohibit any state experimentation (think abortion). Greater judicial tolerance for federalist solutions has relieved those frustrations. It demonstrates to the Leave-Us-Aloners that the Court need not be their implacable enemy. In turn, responsible (if hard-fought) Leave-Us-Alone campaigns in the states demonstrate to the Supreme Court that populist constituencies can after all be trusted.”^[10]

Argument: Federalism allows for and promotes healthy competition between states

The existence of federalism allows for and promotes competition between states, which is a positive outcome according to this argument. The federal right of individuals and businesses to leave a state or locality in search of more accommodative policies forces lower levels of government to innovate competitive policies that attract citizens and capital from other areas. The national government, according to this argument, is a monopoly that does not have to compete or quickly improve.

Claim: Federalism allows people and businesses to vote with their feet

This argument posits that the right to exit under federalism allows individuals and corporations to move to a different jurisdiction if they are dissatisfied with the regulations in their current jurisdiction.

Law professor Michael S. Greves wrote, “It is often much wiser to offer citizens a choice among jurisdictions and to force the jurisdictions to compete by protecting the private right that matters - the right to exit. Sometimes, exit rights are an acceptable, second-best alternative to property rights; in other instances, they may be genuinely superior. Citizen choice and exit rights will not always and everywhere produce the same results as would libertarian property rights, and as just seen, federalism and private markets coexist in a certain tension. Both, however, follow the same general objective of constraining an otherwise boundless political process.”^[10]

James M. Buchanan wrote, “The principle of federalism emerges directly from the market analogy. The politicized sphere of activity, in itself, may be arranged or organized so as to allow for the workings of competition, which is the flip side of the availability of exit, to become operative. The domain of authority for the central government, which we assume here is coincident in temtory and membership with the economic exchange nexus, may be severely limited, while remaining political authority is residually assigned to the several ‘state’ units, each of which is smaller in territory and membership than the economy. Under such a federalized political structure, persons, singly and/or in groups, would be guaranteed the liberties of trade, investment, and migration across the inclusive area of the economy. Analogously to the market, persons retain an exit option; at relatively low cost, at least some persons can shift among the separate political jurisdictions. Again analogously to the market, the separate producing units (in this case, the separate state governments) would be forced to compete, one with another, in their offers of publicly provided services. The federalized structure, through the forces of interstate competition, effectively limits the power of the separate political units to extract surplus value from the citizenry.”^[17]

Law professor Richard A. Epstein wrote, “The great virtue of federalism is that it introduces an important measure of competition between governments. Federalism works best where it is possible to vote with your feet. The state that exploits its productive individuals runs the risk that they will take their business elsewhere. The exit threat therefore enforces the competitive regime.”^[18]

Epstein continued, “At present, major firms that do business in many states may pick a single state of incorporation. Incorporation is generally regarded as a good for the state of incorporation for the tax revenues it generates and the general business it provides. The battle between different states often centers on the inducements each could offer to promoters of new businesses to incorporate within their jurisdiction. Firms that do not like incorporation in one state can leave and reincorporate somewhere else. In some circles, this competition between states has been deplored as a ‘race to the bottom,’ on the ground that the managers will seek out that jurisdiction that is most favorable to their interests and, by implication, most adverse to the interests of prospective shareholders. On balance, however, incorporation is an area in which the exit right operates as a powerful instrument for the public welfare.”^[18]

Alexander T. Tabarrok wrote, “Oppression at the federal level is difficult to escape. Oppression by the states can be countered by mobility. The more powers that are devolved to lower levels, the easier it becomes pick and choose policies by moving. Gays may move to cities like San Francisco where they are better tolerated, and indeed if enough of them move they can become a political force. In this respect, the idea is similar to the diversity of preferences notion except there the emphasis was on the idea that federalism allows pre-existing diversities to be recognized. Whereas here the idea is that you can move to a city or town that better reflects your preferences. One sometimes hears, for example, that federalism was more important in the 18th century when the people of Virginia really were quite different than the people of New England. Today, so the argument goes, now that people are much more likely to move from one state to another the differences are less clear and so federalism is less important. While this argument makes some sense from the diversity of preference view, it makes no sense at all from the perspective of mobility because it is mobility that generates differences in preferences and competitive federalism works better the more mobile citizens are.”^[8]

Claim: The right to exit encourages states to compete in their policy offerings to attract citizens and businesses

This claim suggests that federalism encourages states to innovate and compete to minimize government burdens and maximize the value it provides to citizens.

James M. Buchanan wrote, “The principle of federalism emerges directly from the market analogy. The politicized sphere of activity, in itself, may be arranged or organized so as to allow for the workings of competition, which is the flip side of the availability of exit, to become operative. The domain of authority for the central government, which we assume here is coincident in temtory and membership with the economic exchange nexus, may be severely limited, while remaining political authority is residually assigned to the several ‘state’ units, each of which is smaller in territory and membership than the economy. Under such a federalized political structure, persons, singly and/or in groups, would be guaranteed the liberties of trade, investment, and migration across the inclusive area of the economy. Analogously to the market, persons retain an exit option; at relatively low cost, at least some persons can shift among the separate political jurisdictions. Again analogously to the market, the separate producing units (in this case, the separate state governments) would be forced to compete, one with another, in their offers of publicly provided services. The federalized structure, through the forces of interstate competition, effectively limits the power of the separate political units to extract surplus value from the citizenry.”^[17]

Law professor Michael W. McConnell wrote, “Three important advantages of decentralized decision-making emerge from an examination of the founders' arguments and the modern literature. First, decentralized decision-making is better able to reflect the diversity of interests and preferences of individuals in different parts of the nation. Second, allocation of decision-making authority to a level of government no larger than necessary will prevent mutually disadvantageous attempts by communities to take advantage of their neighbors. And third, decentralization allows for innovation and competition in government.”^[3]

McConnell continued, “A final reason why federalism has been thought to advance the public good is that state and local governmental units will have greater opportunity and incentive to pioneer useful changes. A consolidated national government has all the drawbacks of a monopoly: it stifles choice and lacks the goad of competition. Lower levels of government are more likely to depart from established consensus simply because they are smaller and more numerous. Elementary statistical theory holds that a greater number of independent observations will produce more instances of deviation from the mean. If innovation is desirable, it follows that decentralization is desirable. This statistical proposition is strengthened, moreover, by the political reality that a smaller unit of government is more likely to have a population with preferences that depart from the majority's. It is, therefore, more likely to try an approach that could not command a national majority. Perhaps more important is that smaller units of government have an incentive, beyond the mere political process, to adopt popular policies. If a community can attract additional taxpayers, each citizen's share of the overhead costs of government is proportionately reduced.”^[3]

Claim: Federalism incentivizes a “race to the top”

This claim posits that the “race for the bottom” view of competition does not sufficiently analyze state competition and fails to account for market forces. Competition, according to this claim, incentivizes states to implement rules that maximize the values of shareholders, thus creating a “race for the top.”

Law professor Lucian Arye Bebchuk wrote, “The problem with the race for the bottom analysis is its failure to consider the existence of market constraints on managers' behavior. Cary viewed corporate law as the sole source of protection for shareholders. As critics of the race for the bottom view were quick to point out, however, market forces must be taken into account in any analysis of state charter competition.”^[13]

Law professor Richard A. Epstein wrote, “At present, major firms that do business in many states may pick a single state of incorporation. Incorporation is generally regarded as a good for the state of incorporation for the tax revenues it generates and the general business it provides. The battle between different states often centers on the inducements each could offer to promoters of new businesses to incorporate within their jurisdiction. Firms that do not like incorporation in one state can leave and reincorporate somewhere else. In some circles, this competition between states has been deplored as a ‘race to the bottom,’ on the ground that the managers will seek out that jurisdiction that is most favorable to their interests and, by implication, most adverse to the interests of prospective shareholders. On balance, however, incorporation is an area in which the exit right operates as a powerful instrument for the public welfare.”^[18]

Epstein continued, “The ‘race to the bottom’ claim is flawed because it misses the central point that the protection individual investors receive under a system of federalism is derived from their ability to withhold their consent. If the state incorporation laws allow the officers and directors of a corporation effectively to expropriate the wealth of shareholders, then, in the first instance, the original promoters of the new venture will have to bear the costs of those inferior rules. The rules are a matter of public knowledge, and if they are skewed in the way in which proponents of the race to the bottom believe, then initial investors (including institutional investors with great sophistication) will demand at incorporation more favorable terms to compensate themselves for the additional legal risks they are asked to assume. As that additional compensation will cost the promoters of the new venture more than compliance to a superior set of rules, the promoters will modify by contract any rules that facilitate the exploitation of shareholders. I am skeptical that there should be any mandatory terms within corporate charters, but if such are required, then competition between states within a federal system should spur states to identify those restrictions that are required and to reject those that are superfluous. The empirical evidence seems to be in accord with this optimistic view, for those businesses that announce an intention to shift their state of incorporation to Delaware see significant advances in the value of their shares. In this situation, therefore, the exit right offers incentives for states to find the right mix between contractual freedom and state regulation.”^[18]

Epstein continued, “Professor Bebchuk in his recent contribution on this issue notes that a shift in the place of doing corporate business could lead to risks to minority shareholders or to various creditors, both by tort and by contract. As regards dissident shareholders, the risk is surely there when majority vote and not unanimous consent is all that is necessary for reincorporation to take place. An additional requirement that no identifiable class of shareholders be left worse off after the reincorporation - a just compensation requirement for minority shareholders - could go a long way to prevent the abuses that might otherwise be allowable under majority voting. As regarding creditors, it is likely to be only the rare situation in which the reincorporation will benefit shareholders as a group, but at the same time will subject outside creditors (who otherwise benefit from the increased asset cushion) to greater risks than they sustained previously. If most shareholders are risk averse, it is unlikely they will support, even by a simple majority vote, any reincorporation in another state that increases the volatility of their holdings, the scenario most likely to prejudice any creditors. Since any federal law is so unlikely to represent a sensible response to any question of corporate governance, it seems best to rely on competition across states, notwithstanding the occasional case in which it might work more harm than good.”^[18]

Argument: Federalism prevents waste

This argument posits that federalism prevents the waste of funds and resources by allowing states to determine the best solutions for their local circumstances.

Claim: Federalism allows states to innovate solutions based on local circumstances, which prevents waste that federal regulations often create

This claim suggests that federalism allows states and cities to make determine what is best for in them.

Pietro S. Nivola wrote, “The larger point here is that when top-heavy federal regulations indiscriminately narrow local options, they risk stifling local innovations and foreclosing solutions that fit local circumstances. The result can be enormously wasteful.”^[11]

Argument: Federalism protects individual rights

This argument says that the existence of federalism and a decentralized government protects individuals’ rights. States can more effectively protect individuals’ liberties and provide an institutional check on abuses of federal power.

Claim: Federalism protects individual liberties of trade, investment, and migration

This claim suggests that state competition and the right to exit, in conjunction with federalism, grant individuals the liberty of trade, investment, and migration between jurisdictions.

James M. Buchanan wrote, “The principle of federalism emerges directly from the market analogy. The politicized sphere of activity, in itself, may be arranged or organized so as to allow for the workings of competition, which is the flip side of the availability of exit, to become operative. The domain of authority for the central government, which we assume here is coincident in temtory and membership with the economic exchange nexus, may be severely limited, while remaining political authority is residually assigned to the several ‘state’ units, each of which is smaller in territory and membership than the economy. Under such a federalized political structure, persons, singly and/or in groups, would be guaranteed the liberties of trade, investment, and migration across the inclusive area of the economy. Analogously to the market, persons retain an exit option; at relatively low cost, at least some persons can shift among the separate political jurisdictions. Again analogously to the market, the separate producing units (in this case, the separate state governments) would be forced to compete, one with another, in their offers of publicly provided services. The federalized structure, through the forces of interstate competition, effectively limits the power of the separate political units to extract surplus value from the citizenry."^[17]

Claim: Federalism allows states to create laws based on local conditions

This claim suggests that a decentralized government allows states to implement laws based on local conditions and the needs of citizens. This allows states to take an approach that is more appealing to individuals’ rights and needs, as opposed to a uniform federal approach.

Law professor Michael W. McConnell wrote, “The first, and most axiomatic, advantage of decentralized government is that local laws can be adapted to local conditions and local tastes, while a national government must take a uniform - and hence less desirable - approach. So long as preferences for government policies are unevenly distributed among the various localities, more people can be satisfied by decentralized decision-making than by a single national authority.”^[3]

Claim: Federalism limits the power of the federal government to regulate individuals’ lives

This claim suggests that a decentralized government allows states to balance federal regulations and prevent federal overreach into individuals’ rights.

Law professor Deborah Jones Merritt wrote, “First, like Madison and Hamilton, twentieth century commentators stress the ability of independent state governnments to check the oppressive power of a strong central government. The federal government, with its broad constitutional authority, its army of administrative agencies, and its vast financial resources, possesses almost unlimited power to regulate the lives of its citizens. The individual voter has little hope of influencing the course of this federal leviathan. Given these realities, state governments provide an institutional check on potential abuses of federal power.”^[2]

Law professor Russell Pannier wrote, “1) The objective of reducing the risk of arbitrary and morally unjustifiable political coercion is desirable. 2) Maintaining a federalist legal system is a necessary, or at least useful, means of reducing the risk of arbitrary and morally unjustifiable political coercion. 3) Hence, a federalist legal system ought to be maintained.”^[15]

James M. Buchanan wrote, “I suggest that a coherent classical liberal must be generally supportive of federal political structures, because any division of authority must, necessarily, tend to limit the potential range of political coercion. Those persons and groups who oppose the devolution of authority from the central government to the states in the United States and those who oppose any limits on the separate single nation-states in modern Europe are, by these commitments, placing other values above those of the liberty and sovereignty of individuals.”^[4]

Argument: Federalism supports stronger communities

This argument posits that federalism promotes stronger community networks and engagement by allowing citizens to actively participate in state and local government. State and local governments also have the power to create laws that directly benefit local conditions, which further promotes a sense of community.

Claim: Federalism is good because it encourages social reciprocity

This claim suggests that federalism encourages generalized reciprocity, which means that members of a community will grant favors to one another with no expectation of receiving a favor in return. According to the claim, federalism promotes the existence of citizen groups and civic networks, which foster generalized reciprocity.

Yale Law School Graduate Fellow Jason Mazzone wrote, “The types of small-scale citizen groups that federalism promotes also embody strong norms of generalized reciprocity. Individuals who are actively involved in these small-scale associations are more trusting of others and more likely to engage in reciprocal behavior.”^[5]

Mazzone continued, “Through participation in civic networks, individuals learn to listen carefully to the viewpoints of others, to reserve judgment until appropriate, and to provide feedback. Individuals not only learn the importance of negotiation and compromise, and of patience and control, but also the usefulness of obtaining a consensus. They learn to respect others despite differences of opinion, and they discover ways to maintain civility despite disagreement. Such habits often promote reciprocal behavior in other settings with other individuals.”^[5]

Mazzone continued, “[P]articipation in the small-scale associations of federalism is likely to promote reciprocity by allowing citizens to identify with each other and increase their sense of solidarity. Research demonstrates that interacting with other people creates the sense that individuals are part of a collectivity with shared interests.”^[5]

Mazzone continued, “[A]ctive participation in the small-scale associations of federalism promotes generalized reciprocity results from the important effects of face-to-face communication. A large body of research demonstrates that individuals who communicate with one another are more likely to trust each other and, therefore, more likely to engage in cooperative behavior.”^[5]

Mazzone continued by stating that another “reason that the associations promoted by federalism enhance norms of generalized reciprocity is that active participation by large numbers of citizens in these associations sends the important message that citizens can be trusted to influence politics and to pursue their own agendas.”^[5]

Claim: Federalism allows states to create laws that benefit communities and specific local conditions

This claim suggests that federalism benefits communities by allowing states to create laws specific to local conditions and needs.

Law professor Michael W. McConnell wrote, “The first, and most axiomatic, advantage of decentralized government is that local laws can be adapted to local conditions and local tastes, while a national government must take a uniform-and hence less desirable-approach. So long as preferences for government policies are unevenly distributed among the various localities, more people can be satisfied by decentralized decision-making than by a single national authority.”^[3]

Law professor Deborah Jones Merrit wrote, “The third advantage of independent state governments stems from the political and cultural diversity they provide. Acting through their state and local governments, citizens in each region create the type of social and political climate they prefer. Alaska spends $8,627 per pupil for elementary and secondary education, while Utah spends only $2,053.41 Some states have enacted stringent pollution control laws and high industrial taxes, while Louisiana advertises itself as the ‘Right-to-Profit State.’ The city of Santa Monica in California has established social welfare programs that critics dub ‘a form of socialism. For a nation composed of diverse interest groups, this opportunity to express different social and cultural values is essential.”^[2]

Claim: Federalism promotes citizen participation in the political process

This claim suggests that federalism encourages active participation in the political process of state and local governments. This involvement promotes voter confidence, citizen engagement in politics, and accountability.

Merritt continued, “The second major advantage of federalism lies in the ability of state and local governments to draw citizens into the political process. The greater accessibility and smaller scale of local government allows individuals to participate actively in governmental decisionmaking. This participation, in turn, provides myriad benefits: it trains citizens in the techniques of democracy, fosters accountability among elected representatives, and enhances voter confidence in the democratic.”^[2]

Argument: Federalism reduces corruption

This argument states that federalism offers protections and institutional checks that prevent governmental corruption.

Claim: Federalism matches economic and political jurisdictions

This claim suggests that federalism and the practice of devolving power to the lowest competent level of government helps match economic and political jurisdictions and reduce pork-barrel legislation.

Alexander T. Tabarrok wrote, “If there are more voters in the central jurisdiction, then they can foist some of the taxes for the fire station on taxpayers in the outer jurisdiction. Since the benefits of the firehouse go solely to the central jurisdiction but the costs are spread across both jurisdictions, the central jurisdiction is being subsidized and thus has an incentive to spend more on firehouses than is justified by the actual benefits.”^[8]

Argument: Federalism allows people to be more active in and closer to the governing process

This argument posits that federalism creates more opportunities for individuals and smaller organizations to actively participate in politics through the division of power between the federal government and state governments.

Claim: Federalism creates more opportunities for non-white people to be civically active

This claim suggests that non-white citizens are afforded more opportunities to be civically active through small civic associations, which can more easily influence lower levels of government.

Yale Law School Graduate Fellow Jason Mazzone wrote, “For Black citizens, small-scale associations like church groups are particularly important sites for acquiring civic skills. In the workplace, educated White citizens disproportionately occupy the high-level positions that impart civic skills. In small civic associations, by contrast, Black citizens have the same opportunities as White citizens to develop and practice civic skills. In church groups, in particular, Black citizens and citizens of other minority groups are able to practice civic skills more frequently than White citizens.”^[5]

Claim: Federalism allows smaller organizations to have influence over powerful political groups

This claim suggests that smaller organizations have more power to pursue their political agendas under federalism, which prevents larger political groups from gaining too much power.

Mazonne wrote, “By requiring even the most powerful groups to forego influence over some sites of political power, federalism provides opportunities for smaller, weaker organizations to compete for influence and pursue their agendas. In a federalist system, it is easier for smaller organizations to mount opposition to even powerful groups because their resources will be more diffused.”^[5]

Mazzone continued, “As a result of organizations choosing where to seek political influence, there will be additional opportunities for them to influence policy. Under a federal system, it is unlikely that any single group will be able to capture all or even most of the political power at both the state and the national level. All groups will need to make decisions about where to focus their resources. Thus, federalism provides opportunities for political influence to groups that would likely be very weak under a nationalist system."^[5]

Mazzone continued, “The social capital argument for federalism … points to the importance of competition between the national government and the states over the appropriate division of governmental power. Ongoing power struggles between the national and state governments provide constant opportunities for citizen groups to exert influence. When the division of power is clearly defined, citizen groups pursuing their agendas are able to direct their resources at the appropriate target. An ambiguous division of power, however, creates uncertainty regarding which government, national or state, will eventually make the decisions on a particular matter. This ambiguity in turn casts doubt on the merits of pursuing one avenue of influence rather than another––an uncertainty that citizen groups otherwise excluded from political influence can exploit.”^[5]

Claim: Federalism offers more opportunities for individuals to actively participate in politics

This claim suggests that federalism creates more opportunities for individuals to participate and have a direct role in politics.

Mazzone wrote, “[F]ederalism enhances social capital by expanding opportunities for individuals to participate directly in politics through such activities as running for public office.”^[5]

Law professor Deborah Jones Merritt wrote, “The second major advantage of federalism lies in the ability of state and local governments to draw citizens into the political process. The greater accessibility and smaller scale of local government allows individuals to participate actively in governmental decisionmaking. This participation, in turn, provides myriad benefits: it trains citizens in the techniques of democracy, fosters accountability among elected representatives, and enhances voter confidence in the democratic.”^[2]

Claim: Federalism promotes social capital more readily than a nationalist form of government

This claim suggests that social capital is promoted through the division of power between the federal government and state governments, which creates more opportunities for citizen groups and individuals to participate in politics.

Mazzone wrote, “My central claim is that federalism promotes social capital because dividing power between the national government and the states provides greater opportunities for citizen groups to influence politics and for individual citizens to participate in public life. Federalism, therefore, provides a healthy political environment for social capital.”^[5]

Mazzone wrote that dividing authority between the national government and the states “increases the points of political power over which citizens can exert influence in order to achieve their goals. Rather than facing a single governing entity, under a federal system of government, citizen groups can influence political outcomes by directing their resources toward local, state, and national levels. A political environment in which there are multiple sites for influence promotes social capital because such an environment is conducive to a large number of interest groups in which citizens actively participate. Thus, federalism provides opportunities for smaller groups of active citizens to organize and pursue their goals in a variety of settings rather than relegating vast numbers of citizens to passive roles in a large national advocacy group which pursues its members’ interests in Washington.”^[5]

Argument: Federalism creates the greatest opportunity for the maximization of human potential

This argument posits that federalism is the most effective tool for maximizing and recognizing human potential, powers, and capacities.

Claim: A federalist legal order is necessary for the greatest possible realization of human capacities

This claim suggests that a federalist legal order best recognizes human powers and capacities.

Law professor Russell Pannier wrote, “1) Maintaining a legal order in which there exist the conditions for the greatest possible common realization of the essential human powers and capacities is desirable. 2) Maintaining a federalist legal order is a necessary, or at least useful, means of maintaining a legal order in which there exists the greatest possible common realization of the essential human powers and capacities. 3) Hence, a federalist legal order ought to be maintained.”^[15]

Pannier continued, “So, states should be given powers independent of the federal government because in that way smaller associations will be forced to perform functions that would otherwise be performed by the larger association. And this is desirable because in that way a greater number of persons will be encouraged to make choices concerning the conditions of their own lives, thereby freely realizing their own humanity to a greater extent.”^[15]

Pannier continued, “Can the objective of establishing and maintaining a legal order in which there exist the conditions for the greatest possible common realization of the essential human powers and capacities be more efficiently pursued through some means other than a federalist legal system? It seems unlikely. The principle of subsidiarity requires that smaller, rather than larger, associations perform functions whenever possible. Surely, a good way of accomplishing this is breaking down larger associations into smaller ones on the basis of geographical partition. One could try to satisfy the principle of subsidiarity in other ways. For example, one could form smaller associations from people chosen at random, without regard to their geographical locations. But such a method would obviously be inferior to the method of tying the identity of the smaller associations to geographical units.”^[15]

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Footnotes

↑ ^1.0 ^1.1 ^1.2 ^1.3 Chicago Unbound, "The Proper Scope of the Commerce Power," 1987
↑ ^2.0 ^2.1 ^2.2 ^2.3 ^2.4 ^2.5 JSTOR, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," January 1988
↑ ^3.00 ^3.01 ^3.02 ^3.03 ^3.04 ^3.05 ^3.06 ^3.07 ^3.08 ^3.09 ^3.10 ^3.11 ^3.12 University of Chicago Law School, "Federalism: Evaluating The Founders' Design," 1987
↑ ^4.0 ^4.1 Catholic Theological Union, "Federalism and individual sovereignty," 1995
↑ ^5.00 ^5.01 ^5.02 ^5.03 ^5.04 ^5.05 ^5.06 ^5.07 ^5.08 ^5.09 ^5.10 ^5.11 ^5.12 ^5.13 ^5.14 ^5.15 ^5.16 ^5.17 ^5.18 ^5.19 SSRN, "The Social Capital Argument for Federalism," accessed March 27, 2022
↑ ^6.00 ^6.01 ^6.02 ^6.03 ^6.04 ^6.05 ^6.06 ^6.07 ^6.08 ^6.09 ^6.10 ^6.11 ^6.12 ^6.13 ^6.14 BerkeleyLaw University of California, "Federalism: Some Notes on a National Neurosis," April 1994
↑ ^7.0 ^7.1 Chicago Unbound, "The Two Faces of Federalism," 1982
↑ ^8.0 ^8.1 ^8.2 ^8.3 ^8.4 Independent Institute, "Arguments for Federalism," September 20, 2001
↑ ^9.0 ^9.1 ^9.2 Brokings Institute, "Why Federalism Matters," October 2005
↑ ^10.0 ^10.1 ^10.2 ^10.3 ^10.4 ^10.5 Google Books, "Real Federalism," 1999
↑ ^11.0 ^11.1 ^11.2 ^11.3 ^11.4 ^11.5 ^11.6 ^11.7 ^11.8 Brookings Institute, "Does Federalism Have a Future?" December 1, 2001
↑ ^12.00 ^12.01 ^12.02 ^12.03 ^12.04 ^12.05 ^12.06 ^12.07 ^12.08 ^12.09 ^12.10 ^12.11 ^12.12 ^12.13 ^12.14 ^12.15 ^12.16 ^12.17 ^12.18 ^12.19 ^12.20 Research Gate, "The Obsolescence of Federalism," January 2005
↑ ^13.0 ^13.1 ^13.2 ^13.3 ^13.4 ^13.5 HeinOnline, "Federalism and the Corporation: The Desirable Limits on State Competition in Corporate Law," May 1992
↑ ^14.0 ^14.1 JSTOR, "Federalism and Corporate Law: Reflections upon Delaware," March 1974
↑ ^15.0 ^15.1 ^15.2 ^15.3 ^15.4 ^15.5 William Mitchell Law Review, "Justifying Federalism," 1990
↑ JSTOR, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," January 1988
↑ ^17.0 ^17.1 ^17.2 ^17.3 Publius: The Journal of Federalism, "Federalism As an Ideal Political Order and an Objective for Constitutional Reform," January 1995
↑ ^18.0 ^18.1 ^18.2 ^18.3 ^18.4 Law and Contemporary Problems, "Exit Rights Under Federalism," 1992

[properscope-1] 1.0 ^1.1 ^1.2 ^1.3 Chicago Unbound, "The Proper Scope of the Commerce Power," 1987

[guarantee-2] 2.0 ^2.1 ^2.2 ^2.3 ^2.4 ^2.5 JSTOR, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," January 1988

[evaluating-3] 3.00 ^3.01 ^3.02 ^3.03 ^3.04 ^3.05 ^3.06 ^3.07 ^3.08 ^3.09 ^3.10 ^3.11 ^3.12 University of Chicago Law School, "Federalism: Evaluating The Founders' Design," 1987

[individualsovereignty-4] 4.0 ^4.1 Catholic Theological Union, "Federalism and individual sovereignty," 1995

[socialcapital-5] 5.00 ^5.01 ^5.02 ^5.03 ^5.04 ^5.05 ^5.06 ^5.07 ^5.08 ^5.09 ^5.10 ^5.11 ^5.12 ^5.13 ^5.14 ^5.15 ^5.16 ^5.17 ^5.18 ^5.19 SSRN, "The Social Capital Argument for Federalism," accessed March 27, 2022

[neurosis-6] 6.00 ^6.01 ^6.02 ^6.03 ^6.04 ^6.05 ^6.06 ^6.07 ^6.08 ^6.09 ^6.10 ^6.11 ^6.12 ^6.13 ^6.14 BerkeleyLaw University of California, "Federalism: Some Notes on a National Neurosis," April 1994

[twoface-7] 7.0 ^7.1 Chicago Unbound, "The Two Faces of Federalism," 1982

[independent-8] 8.0 ^8.1 ^8.2 ^8.3 ^8.4 Independent Institute, "Arguments for Federalism," September 20, 2001

[federalmatters-9] 9.0 ^9.1 ^9.2 Brokings Institute, "Why Federalism Matters," October 2005

[realfederalism-10] 10.0 ^10.1 ^10.2 ^10.3 ^10.4 ^10.5 Google Books, "Real Federalism," 1999

[federalfuture-11] 11.0 ^11.1 ^11.2 ^11.3 ^11.4 ^11.5 ^11.6 ^11.7 ^11.8 Brookings Institute, "Does Federalism Have a Future?" December 1, 2001

[obsolescence-12] 12.00 ^12.01 ^12.02 ^12.03 ^12.04 ^12.05 ^12.06 ^12.07 ^12.08 ^12.09 ^12.10 ^12.11 ^12.12 ^12.13 ^12.14 ^12.15 ^12.16 ^12.17 ^12.18 ^12.19 ^12.20 Research Gate, "The Obsolescence of Federalism," January 2005

[federalcompetition-13] 13.0 ^13.1 ^13.2 ^13.3 ^13.4 ^13.5 HeinOnline, "Federalism and the Corporation: The Desirable Limits on State Competition in Corporate Law," May 1992

[corporatelaw-14] 14.0 ^14.1 JSTOR, "Federalism and Corporate Law: Reflections upon Delaware," March 1974

[justifying-15] 15.0 ^15.1 ^15.2 ^15.3 ^15.4 ^15.5 William Mitchell Law Review, "Justifying Federalism," 1990

[guarantee1-16] JSTOR, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," January 1988

[ideal-17] 17.0 ^17.1 ^17.2 ^17.3 Publius: The Journal of Federalism, "Federalism As an Ideal Political Order and an Objective for Constitutional Reform," January 1995

[lawproblems-18] 18.0 ^18.1 ^18.2 ^18.3 ^18.4 Law and Contemporary Problems, "Exit Rights Under Federalism," 1992

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