Federalism – A Tragic Compromise?

Sandy Levinson has written an interesting federalism piece over at Balkinization.  The post is in response to a book being published entitled Federalism: Political Identity and Tragic Compromise.  This is somewhat related to a post I wrote a couple of weeks back so I thought I’d briefly comment on it.

Levinson agrees with the book’s central thesis that the reason we have federal countries is that “negotiating units can credibly threaten to go it alone if they are not given sufficient autonomy as part of the constitutional deal.”  He further writes that the authors (Malcolm M. Feeley and Edward Rubin) have demonstrated:

that we have moved far away from anything that can seriously be described as a “federal’ system and that we are far better off for it, since there’s really nothing to be said for federalism in the absence of the cleavages about political identity that lead us, with whatever relucatance, to allow particular subunits to have their own official churches, different local languages of government, and the like.

Most of Levinson’s post argues that there are in fact little hard autonomy rights left to the states in the original Constitution.  Most of what remains to the states today under the Supreme Court’s federalism jurisprudence is not only judge-made, but a product of their political beliefs rather than any real principles of federalism.  This is certainly true considering the redefining of interstate commerce that the New Deal Supreme Court produced.  So, it seems as though Levinson not only thinks that American federalism is weak, but if given a say on a 21st century Constitution, he would probably leave very little to the states.

In any case, it’s a pretty fascinating topic and the book sounds like a great read.