Federalism, Upside-Down and Executive

The Upside-Down Constitution isn’t for the faint of heart, or for people who actually work for a living. So some time ago, the Mercatus Center nudged me to write up a more digestible version of the federalism argument—the political economy piece, sans the ConLaw and FedCourts jazz—for wider distribution. The product, a sixty-off page essay on “Federalism and the Constitution: Competition versus Cartel,” is now available from Mercatus. It’s a quick, convenient introduction to the subject. The essay contains a few new riffs. Among them: our upside-down cartel federalism has become an executive federalism: increasingly, federal-state relations are shaped in one-off…

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Federalism as a Catalyst for Beneficial Social Change

The question of whether there is a federal constitutional right to same-sex marriage is essentially a debate about whether judges need to update the Constitution to keep step with changing times. Justice Anthony Kennedy appears to be the pivotal vote on the issue.  One observer yesterday summarized what he takes to be the lesson of  his previous opinions on rights: Kennedy “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”

There is no doubt that each generation has the right to conceive of newer and broader forms of liberty. But it does not follow that federal judges should determine what those are. As Mike Rappaport and I have noted, the Constitution accommodates social change through features other than judicial updating. The most important such method is federalism. The states themselves have few restrictions on their powers.  Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.

Federalism in the modern era has been a great catalyst for freedoms.

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When Is “the Law” Violated Under the Constitution, Anyway?

Supreme Court of United States

Recently a New York Times headline blared: “McConnell Urges States to Defy U.S. Plan to Cut Greenhouse Gas.” It was the first in a barrage of mainstream media stories to the same effect. Majority Leader Mitch McConnell (R-KY) was telling the states to violate the law! An apalled ranking environmental committee Senator Barbara Boxer (D-CA) said she could not recall another top politician actually “calling on states to disobey the law.”

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Roving Bandits: A Discussion with Paul Nolette on the Power Wielded by State Attorneys General

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Paul Nolette comes to Liberty Law Talk to discuss his book Federalism on Trial, which demonstrates how state attorneys general quietly became significant national policymakers. What was once a rather staid position in state government has become the source of entirely new regimes of conduct impressed on companies and industries. Incredible evidence of this legal revolution can be seen in the Master Settlement Agreement with the tobacco industry, which, courtesy of the attorneys general, sent $200 billion to the states and negotiated an entirely new cartel for the industry without a single vote in Congress. While some attorneys general have challenged…

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Indiana Wants Me, or Maybe Not

I just returned from a speaking engagement with the National Association of Attorneys General (Midwestern) in Indianapolis. The city used to be a dump; now it’s thriving. (In these pre-Final Four days, it’s the place to be.) The NAAG event was tremendous: it’s a shame they don’t transcribe or podcast the discussions. The panelists (yours truly included) yell at each other on the blogs but lo, they’re actually is a trans-party, Yale-to-GMU constituency for the rule of law—and they meet in a hotel room and learn from each other. The NAAG’s Dan Schweitzer, who called this thing together, is a…

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Generals of Regulation

Tutela legale, giustizia, avvocato, legge

Over the past few years, state attorneys general have brought dozens of lawsuits challenging the Obama Administration’s regulatory initiatives. In addition to leading constitutional challenges to the Affordable Care Act, AGs have sued to block new environmental regulations, implementation of the Dodd-Frank financial law, and a host of other federal policies. For those concerned about the size and scope of federal power, this is a welcome development. Who is better positioned than the states’ top litigators to use law as a bulwark to protect the rights of states against an expanding federal government?

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Con “Law” Theory, New Haven-Style

Word cloud for Dual federalism

Yale law professor Heather K. Gerken is among the country’s most prolific and creative federalism scholars. In cooperation with two co-authors (Ari Holtzblatt and James T. Dawson—hereinafter, “Gerken & Co”) she has embarked on a project to develop a theory of “The Political Safeguards of Horizontal Federalism.”

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Fusionism and Federalism

I spent the weekend at an excellent conference on the work of Frank S. Meyer, a leading post-war thinker of the right.  His major effort has generally been called fusionism –an attempt to marry classical liberalism and traditional conservatism. But he himself did not claim the term “fusionism”: that was a label others affixed.  He saw himself as revealing the complementary nature of liberty and tradition rather than creating a new alloy out of disparate materials.   For Meyer, liberty was the end of politics, and that fact could be apprehended by reason. But because of the constraints of human knowledge, traditions were important as  a guide for the appropriate realization of liberty. And traditions help men choose virtue when political freedom appropriately gives them that choice.

Besides its importance in reconciling liberty with tradition analytically, fusionism had and continues to have important political implications.

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Trust Us, We’re the IRS


I am a faithful subscriber to the Washington Post: morning after morning, it makes for merriment. Its editorial and op-ed pages, for instance, have been given over for weeks to the regurgitation of ACA defenses cranked up in New Haven or in the PR offices of the country’s health care lobbies (interspersed with an occasional George Will column). Then yesterday, the Post (printed version) conveniently supplied a long piece detailing “Five Myths About King v. Burwell”—written by a pro-ACA advocate in the litigation, who nonetheless earnestly professed to sort “fact from fiction” in the case. That was a good one.

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Burke, Historical Experience, and Change

At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism.  And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.

But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did.  Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.

But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience.

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