Panel Recap: Localism and Democracy

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Daniel Winik

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

Video courtesy of Yale Law School.

 

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

 Richard Schragger and Ethan Leib, next to speak, turned to the details of implementing progressive federalism. Schragger made an impassioned pitch for "federalism all the way down" in the tradition of Justice Brandeis, looking to cities rather than states as the real cradles of policy innovation. He argued for a related kind of localism as well, suggesting that "progressives should reassert the relationship between political and economic decentralization." Leib, citing his own experience with a team that seeks to revise the California Constitution, discussed how progressives might focus on state constitutional conventions as immediate opportunities to facilitate progressive change.

Heather Gerken, in her commentary on the panel, sought to connect its themes with those of the Individual Rights panel that preceded it. She argued that the traditional division between rights and structure as constitutional paradigms has limited progressives in their efforts to promote minority rights. Drawing examples from the struggle for racial justice and from her own work on dissenting by deciding, she argued that progressives should embrace federalism as a new structural language for the values of participation and representation.

Along with the panelists and questioners, moderator Judith Resnik suggested several avenues for further thought. First, what is the relevance of trans-local organizations of government actors (what Resnik, along with Josh Civin and Joe Frueh, have called "TOGAs") in progressive federalism? Second, how limiting are the challenges of immobility in American society? Third, what should progressives do about the currently dysfunctional governance of major states?

I'll close by suggesting a few others. One important question is the extent to which federalism will remain without political valence. Are we likely to see a kind of bifurcated federalism, with liberals and conservatives favoring different versions? Another question: Will governance at the local level reproduce the power dynamics of governance at the national level, or—as Gerken suggests—does it afford unique representational opportunities? Finally, given the present Democratic control of Congress and the presidency, will liberals need to endure a future period in the political wilderness in order to heed Justice Brandeis's call—channeled by Schragger—to "end this business of centralization" and "go home, back to the states" to "do their work"?