Legal Commentary

Malcolm M. Feeley and Edward Rubin have finally set out their theory of federalism in a book: Federalism: Political Identity and Tragic Compromise (University of Michigan Press 2008) presents their theory that federalism is exclusively a means by which people with different "political identities" preserve their autonomy from the central government. For anyone who cares about the theory of federalism, Feeley's and Rubin's book is one of the most important books on federalism published in the last four years. (Two others are Edward Purcell, Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry (Yale University Press 2007) and Mikhail Filippov, Peter C. Ordeshook, Olga Vitalievna Shvetsova, Designing Federalism: A Theory of Self-Sustaining Federal Institutions (Cambridge University Press 2004)). They present the best statement of what I take to be a powerful fallacy about the justifications for federal regimes. If you care about federalism, you should buy it and read it and -- I hope -- come away unconvinced by its argument.

The essence of Feeley's and Rubin's argument can, I think, be stated in two propositions: (1) As a matter of basic definition, federalism is a regime in which the powers of subnational units are protected from the national government through some kind of constitutional entrenchment and (2) Such entrenchment of subnational power makes sense only if citizens' sense of allegiance -- their "political identity" -- to regional subgroups is stronger than their loyalty to the nation as a whole. For states with such a weak sense of national identity, it might make sense to protect subnational institutions from national power, as a way to give assurance to members of ethnic, religious, cultural, or other subgroups that they will not exploited by more powerful rivals. But, in any state composed of citizens with a firmer sense of national identity -- the United States, Germany, Australia, Argentina, among other apparently federal regimes -- federalism is a mere atavism. Indeed, such regimes cannot be genuinely "federal" in Feeley's and Rubin's sense, because "federalism" is defined exclusively as a mechanism to protect political identity (e.g., Shi'ite, Francophone, Zulu, Marionite Christian, etc.) from majoritarian exploitation. In nations where region does not coincide with such powerful loyalties, there is no need to constitutionalize decentralization of power, even if "managerial decentralization" might be a good policy.

Assuming that the preceding paragraph is a necessarily crude but reasonably accurate re-statement of their argument, then Feeley's and Rubin's book is, in my view, powerfully incorrect. The power of their error is that it is widespread: One often hears that federalism is no longer necessary in the United States because we are no longer divided by powerful regional loyalities. But this argument is erroneous, because it rests on a lexicographical fiat -- namely, the idea that, because protecting powerful regional "political identity" is one justification for constitutionalizing the allocation of power to subnational units of government, therefore it is the only justification that counts as "federalism."

Feeley and Rubin are surely correct that, if the only point of decentralization is to accomplish goals on which national citizens largely agree, then there is no particular reason why decentralization should be constitutionalized. Why not just leave such purely instrumental decentralization up to the discretion of Congress? But decentralization is not merely managerial in this mundane and uncontroversial sense. Decentralization can also be used to protect goals that Congress might not be trustworthy to safeguard without constitutional oversight -- goals like (a) protecting opportunities for political expression and political competition that incumbent politicians in Congress might wish to suppress; (b) limiting the Leviathan-like tendencies of centralized governments to engage in predatory taxation; (c) constraining the universalistic tendencies of a Congress lacking strong political parties to spread pork around in inefficient ways; (d) reducing the costs of political careers so that cub politicians can have a chance at challenging national incumbents; and etc, etc., etc.

Feeley and Rubin dismiss all of these justifications for decentralization as irrelevant to "federalism" in their narrow sense of the term, because these justifications are not related to the protection of subnational political identity. According to Feeley and Rubin, such goals are still merely carrying out the policies of the national citizenry (e.g., fiscal restraint, political competition, small electoral districts, etc.) and, therefore, do not count as "federalism," because the national goals are paramount over the goals of any subunit.

Yes, of course, federalism in this sense is a policy of a unitary people: We the National People simply like decentralizing power to units called "states," for some of the reasons offered above. But so what? What exactly hangs on this lexicographical assertion? The important issue is whether there are good reasons rooted in the unreliability of Congress for entrenching the rules of decentralization in a constitution, even in nations with a strong sense of national unity. If there are, then Feeley and Rubin have not made the case that "federalism" is irrelevant in the United States or other nations with a strong sense of national unity. Many writers -- Brennan & Buchanan, Inman & Rubinfeld, Besley & Case, Benjamin Lockwood, Albert Breton, among others -- have laid out some reasons rooted in political economy to believe that centralized legislatures cannot be trusted to decentralize power optimally. Why not use the label "federalism" to apply to this body of reasons?

Feeley and Rubin appear to argue that a constitutional policy cannot be an instance of federalism unless it is a norm selected by a subnational unit. But this is strikes me as a non sequitur: One might as well say that "individualism" is not constitutionally ensconced because the norms protected by individual rights are not determined by individuals. Yes, We the National People have decided not to trust Congress with complete power over decentralization policy: We constitutionally require decentralization of power to states, juries, newspapers, churches, and a host of other subnational institutions. "Federalism" in this sense is a national policy of a national people that this national people could change at will through an Article V amendment or by changing the composition of SCOTUS or some other formal or informal constitutional means.

So what? Federalism in this sense stands on exactly the same basis as individual rights -- as a constitutional policy of distrust towards centralized institutions. It is an empirical question, of course, whether such distrust is justified; It is a normative question whether We the National People actually care about the sort of decentralization that federalism protects. But these are questions that Feeley and Rubin do not fully engage, because they are caught up with the lexicographers' argument that "federalism" is only concerned with political identity.