Foreword: The Future of Federalism, from the Bottom Up
76 Mont. L. Rev. 1 (2015)
20 Pages Posted: 7 Nov 2015
Date Written: January 30, 2015
This foreword considers the Symposium participants’ contributions in three groups before making concluding points. Part I begins theoretically, with Professor Ilya Somin’s reframing of federalism’s primary value as political freedom actualized by “foot voting” and Professor Roderick Hills’s proposed method of allocating rights and powers between jurisdictions. It then turns to three case studies of federalism in action at the state and tribal level: Professor Michelle Bryan’s examination of hotly contested federal land use decisions; Assistant United States Attorney Danna Jackson’s report on the implementation of federally restored tribal criminal jurisdiction over domestic violence cases; and Professor Matthew Fletcher’s study of tribal disruption as a strategy for negotiating with — and possibly a sovereignty- vindicating model for — state and local governments. It concludes with two state responses to the federal government and their consequences, Professor Robert Mikos’s proposal for state indemnification of federal criminal defense costs, and Professor Abigail Moncrieff’s and Jonathan Dinerstein’s prediction that states’ victory over conditional spending might lose them more autonomy than they won.
Part II draws on these contributions to develop a tentative model of states as more complicated than often portrayed in federalism discussions. Each state is a “they,” not an “it,” at least as much and probably more than the federal government, and future analysis of federalism might more accurately account for this. This foreword concludes that whatever is retained or surrendered, the future of federalism will be more complicated and more durable than either side of current debates anticipates.
Keywords: Federalism, Constitutional Rights, Constitutional Powers, Land Use, Tribal Jurisdiction, Tribal Sovereignty, Medical Marijuana, Conditional Spending, Medicaid Expansion
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