Federalism(s)'s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations

Nomos LV: Federalism and Subsidiarity (James Fleming, ed., NYU Press, 2014)

Yale Law School, Public Law Working Paper No. 304

76 Pages Posted: 29 Jun 2013 Last revised: 15 Jan 2015

Date Written: June 28, 2013

Abstract

My interest is in the sources of identity and norms in federations and the methods for mediating conflicts. In contrast to many accounts of federalism, which assume the stability of the political units that constitute a federation and which posit that subject matter authority flows either to the central government or to its subunits, I argue that the domains of authority are not fixed but renegotiated as conflicts emerge about the import of rights and the content of jurisdictional allocations. Federalisms regularly create mediating mechanisms, including what I term “discounts” — temporizing accommodations in which either the rights claimed or the subunit’s identity is given less than full weight. What costs or benefits those accommodations impose depends on future events, such as providing a wider berth for rights’ dilution or a subunit’s willingness to provide protections it initially rejected. Moreover, the relevant actors in federalism are more than the state and its subunits. Translocal organizations of government actors (TOGAs) have created a web of connections that require enlarging the focus beyond grids of horizontal and vertical authority to capture the diverse arenas generating and homogenizing policies. Once the “who” of federalism is no longer limited to the federal government and its subunits, the federalist virtues of voice, exit, autonomy, and diversity become more difficult to realize. Further, once jurisdictional powers are understood not to be essentially fixed, and discounts are acknowledged as undervaluing some rights or subunit identity in an effort to moderate conflicts, the importance of social and political movements comes to the fore in shaping the boundaries of permissible accommodations and the doctrines that result.

Keywords: federalism, margin of appreciation, habeas corpus

Suggested Citation

Resnik, Judith, Federalism(s)'s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations (June 28, 2013). Nomos LV: Federalism and Subsidiarity (James Fleming, ed., NYU Press, 2014); Yale Law School, Public Law Working Paper No. 304. Available at SSRN: https://ssrn.com/abstract=2284200

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

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