Federalism and Moral Disagreement

29 Pages Posted: 15 Oct 2016 Last revised: 3 Apr 2017

Guido Calabresi

Yale Law School

Eric S. Fish

Yale University, Law School, Students

Date Written: October 9, 2016

Abstract

States form federalist unions when they want to align for economic or security reasons in spite of fundamental moral disagreements. By decentralizing policy-making authority, federalism allows such states to enjoy the benefits of union without being made to live under laws their citizens find immoral. But such federalist compromises are frequently unstable, because one part of a union will sometimes seek to impose its strong moral views on the whole. When this happens, conflict and, especially when the central government is weak, secession may follow. This Article analyzes situations where federalist political unions risk failing and falling apart because of such moral conflicts. It focuses in particular on the American civil war and the contemporary politics of the European Union. It also considers how federalism operates in normal, but morally charged, politics, looking at the institutional and strategic dynamics at work in conflicts over segregation, abortion, religious freedom, marriage, capital punishment, and other value-laden questions.

Suggested Citation

Calabresi, Guido and Fish, Eric S., Federalism and Moral Disagreement (October 9, 2016). Minnesota Law Review, Forthcoming; Yale Law School, Public Law Research Paper No. 583. Available at SSRN: https://ssrn.com/abstract=2849994

Guido Calabresi

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Eric S. Fish (Contact Author)

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

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