Federalism for the Worst Case

68 Pages Posted: 22 Apr 2019

See all articles by David Landau

David Landau

Florida State University - College of Law

Hannah Jacobs Wiseman

Florida State University - College of Law

Samuel R. Wiseman

Florida State University College of Law

Date Written: April 1, 2019

Abstract

Discussion of the threat of authoritarianism in the United States has, in modern times, largely been confined to rhetorical flourishes or abstract arguments. Recently, however, commentators ranging from prominent political scientists to pundits of all stripes have argued that the current administration’s policies and messaging raise the specter of democratic decline.

Since the founding, courts, policymakers, and scholars have envisioned federalism as a bulwark against tyranny. Existing accounts, however, are unsatisfactory. The Founders’ accounts of federalism as preventing tyranny are largely irrelevant in light of societal and constitutional change. Modern theories, too, are incomplete or conclude that federalism provides no real protection against tyranny. Given heightened concern with authoritarianism both at home and abroad, it is time to revisit the issue. Drawing on recent comparative experience in countries such as Russia and Turkey, we offer a new, institutionally-focused account of the relationship between federalism and tyranny. In the United States, the states control the vast majority of governance over sensitive functions such as electoral administration, policing, and courts, which have been frequent targets and tools of authoritarian movements in other countries. We argue that this autonomous control, in concert with doctrines such as the anti-commandeering principle, serves as a key obstacle to a would-be authoritarian president or party.

Our account has implications both domestically and internationally. It foregrounds often-overlooked designs that protect separate structures in the states, like federal inability to remove state officials even during emergency, and it sheds new light on old doctrinal problems like the anti-commandeering doctrine. Further, it highlights a tradeoff between the various costs of U.S. federalism and the significant — and unique — anti-tyranny protection that it provides during an unlikely but possible democratic emergency.

Keywords: federalism, authoritarianism, tyranny, anti-commandeering

Suggested Citation

Landau, David and Wiseman, Hannah Jacobs and Wiseman, Samuel R., Federalism for the Worst Case (April 1, 2019). 105 Iowa Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3366594

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

Hannah Jacobs Wiseman

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

Samuel R. Wiseman

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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