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Pursley on Schapiro on Federalism

By Lawrence Solum

Garrick B. Pursley (The University of Toledo College of Law) has posted Federalism Compatibilists (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

Reviewing Robert A. Schapiro, Polyphonic Federalism (Chicago, U. Chicago Press 2009).

Robert Schapiro?s ambitious Polyphonic Federalism is the first book-length defense of a general normative case for modifying judicial federalism doctrine to accommodate the modern reality of the often cooperative, sometimes conflict-laden, but nearly always interactive relationship between the national and state governments. Persistent judicial ?dualism? - our courts' preoccupation with the idea that the Constitution requires the maintenance of separate and distinct ?spheres? of national and state power - is radically disconnected from today's federalism in practice. The view that constitutional doctrine, not practice, should change in the light of this disconnect is what I call ?compatibilism,? and it stands opposed to a countervailing ?conventionalism? that urges the maintenance of established federalism doctrine. I situate Schapiro?s work in the newly-forming compatibilist literature, identify shared compatibilist theses, and critically assess the compatibilists? normative case for doctrinal change. Compatibilism is unlikely to succeed as either a claim that our discourse about federalism must change or a claim that the meaning of the Constitution regarding federalism has changed. But it may gain traction against conventionalism if formulated as a claim about the instrumental determinants of constitutional doctrine. Read this way, the federalism compatibilits? normative thesis presents a new and invigorating challenge to conventionalism about federalism, an adequate response to which requires conventionalist federalism views to become substantially more nuanced.

Full post as published by Legal Theory Blog on September 07, 2010 (boomark / email).