Federalism Compatibilists

Abstract

Robert Schapiro’s ambitious Polyphonic Federalism is the first book-length defense of a general normative case for modifying judicial federalism doctrine to accommodate the modern reality of the nearly always interactive relationship between the national and state governments based on the pragmatic benefits generated by interactive governance. Persistent judicial “dualism” - our courts' preoccupation with the idea that the Constitution requires the maintenance of distinct “spheres” of national and state power - is radically disconnected from today's federalism in practice. The view that constitutional doctrine, not practice, should change in the light of this disconnect is what I call “compatibilism,’ and it stands opposed to a countervailing “conventionalism” that urges the maintenance of established structures of federalism doctrine. I situate Schapiro’s work in the newly-forming compatibilist literature, identify shared compatibilist theses, and assess the compatibilists’ normative case for doctrinal change. Compatibilism is unlikely to succeed as either a modest claim that our discourse about federalism should change or a provocative claim that the meaning of the Constitution regarding federalism has changed. But it may gain traction against conventionalism if formulated as a claim about the instrumental determinants of constitutional doctrine. Read this way, the federalism compatibilists’ normative thesis presents a new and invigorating challenge to conventionalism, an adequate response to which requires conventionalist federalism views to become substantially more nuanced.

Keywords: constitutional law, federalism, separation of powers, state and local government law, cooperative federalism, constitutional theory, preemption, Schapiro