Federalism and the Tug of War Within: Introduction
Lewis & Clark Law School
January 25, 2012
FEDERALISM AND THE TUG OF WAR WITHIN, Oxford University Press, 2012
"Federalism and the Tug of War Within" explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself.
The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters — including checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. Instability in the Supreme Court’s federalism jurisprudence reflects its ongoing attempt to reconcile the tension through successive theories of federalism, each privileging different values in the federalism constellation. It traces federalism’s internal struggle through history and into the present, critiquing the Rehnquist Court and Tea Party’s embrace of greater jurisdictional separation, the limits of New and Cooperative Federalism approaches, and the growing disjuncture between federalism theory and practice.
The book then outlines a Balanced Federalism alternative, mediating federalism’s tensions on three separate planes: (1) fostering balance among the competing federalism values, (2) leveraging the functional capacities of all three branches of government in interpreting federalism, and (3) maximizing the wisdom of both state and federal actors in so doing. It articulates distinct judicial and political roles in navigating jurisdictional overlap, including strong and weak judicial constraints in Tenth Amendment contexts and deference to intergovernmental bargaining. Forging new territory in the federalism safeguards debate, it provides theoretical justification for the political safeguards already in operation while preserving a role for judicial review. The resulting dynamic model fosters a healthier dialectic between the core principles and functional capacities that — though in tension — have made the American system of government so effective and enduring.
A late draft of the introduction is available for download on this page. The introduction outlines the questions the book addresses, charts the course of the discussion, and introduces its theoretical approach. It lays out the book’s central argument that federalism is best understood not just in terms of the conflict between states’ rights and federal power, or the debate over judicial constraints and political process, or even the dueling claims over original intent — but instead through the inevitable conflicts that play out among federalism’s core principles. It reviews the interpretive federalism quandaries that have preoccupied jurists over the years, including what level of government should trump in different policy-making arenas, which branch of government should make those calls, and the purpose of dual sovereignty in the first place. It introduces the Tenth Amendment and environmental and land use law as ideal laboratories for the analysis, and explains how the book’s argument proceeds through its Four Parts. Finally, it situates the Balanced Federalism proposal within the overall federalism safeguards debate and the emerging dynamic federalism literature.
Also available for downloading from SSRN are three papers from which the book partly draws:
Ryan, Erin , Negotiating Federalism (May 11, 2010). 52 Boston College Law Review 1 (2011); William & Mary Law School Research Paper No. 09-47. Available at SSRN: http://ssrn.com/abstract=1583132;
Ryan, Erin , Federalism at the 'Cathedral': Property Rules, Liability Rules, and Inalienability Rules in Tenth Amendment Infrastructure (February 26, 2009). 81 University of Colorado Law Review 1 (2010); William & Mary Law School Research Paper No. 09-03. Available at SSRN: http://ssrn.com/abstract=1350008 or doi:10.2139/ssrn.1350008;
Ryan, Erin , Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area. 66 Maryland Law Review 503 (2007). Available at SSRN: http://ssrn.com/abstract=930746.
Number of Pages in PDF File: 21
Keywords: Balanced Federalism, New Federalism, cooperative federalism, dynamic federalism, environmental federalism, Tenth Amendment, federalism values, political safeguards, judicial federalism constraints, collaborative governance, intergovernmental bargaining, dual sovereignty, Tea Party, Katrina, climateAccepted Paper Series
Date posted: January 30, 2012
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