What Can Europe Tell Us About the Future of American Federalism?

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Ernest A. Young It is humbling for an American scholar of federalism to admit that the most interesting developments in federalism are happening in Europe, not the United States. But this has been true for some time. Kicking off the European Union’s convention to draft a constitutional treaty in 2001, former French president Valéry Giscard d’Estaing compared the proceedings to “the famous convention of Philadelphia of 1787.” The comparison was apt, in that the fundamental relationship between Brussels and the EU’s Member States has been under renegotiation for much of the past decade and a half. Since the unsuccessful constitutional convention,  the EU has seen the world’s most significant contemporary crisis of fiscal federalism, foundational disagreements between the European Court of Justice and the constitutional courts of the Member States over judicial…
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Judicial Review and the Future of Federalism

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Jonathan F. Mitchell Modern judicial review poses a unique threat to federalism, because it enables the Supreme Court to preempt state law and impose nationwide policies by a simple majority vote and without the assent of any other institution. And the current Supreme Court has shown little interest in adopting formalistic interpretive methodologies that would constrain its powers to override state law in the name of constitutional interpretation. Modern judicial interpretation of the Constitution is rooted primarily in court-created doctrines and precedents rather than constitutional language, and many of these doctrines and precedents could never have obtained the formal supermajoritarian assent needed to entrench a constitutional rule. These judicial interpretive practices are in tension with the Constitution’s efforts to protect federalism and state prerogatives by making it difficult for federal institutions…
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The Eclipse of Dual Federalism by One-Way Cooperative Federalism

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
John Kincaid Numerous and powerful political forces have vested interests in the contemporary idea of cooperative federalism, which prioritizes an obligation of states to cooperate with federal policy initiatives in a system that is essentially prefectorial administration. These forces make impossible any construction or reconstruction of dual federalism wherein states exercise substantial sovereignty. Even if the U.S. Supreme Court rendered more state-friendly rulings, those rulings would negligibly affect the balance of state-federal power. Full Article
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Litigation as a Political Safeguard of Federalism

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Daniel Francis When federalism scholars write about judicial review, they routinely focus on adjudication and neglect or ignore the process of litigation. Nowhere is this approach clearer than in the literature on the “safeguards” of federalism, which contrasts the “judicial safeguards” of federalism (constituted by what judges do and say at the end of judicial review proceedings) with its “political safeguards” (constituted by an array of interactions and institutional connections outside the courtroom). But the reduction of judicial review to adjudication has obscured the significance of the interactions among federal and state officials and institutions, citizens, and interested members of civil society in and around the litigation of judicial review cases, and particularly the ways in which those interactions may help to maintain and protect American federalism. In other words,…
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Institutions and Political Party Systems: The Euro Case

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Jesus Fernandez-Villaverde & Tano Santos This paper argues that institutions and political party systems are simultaneously determined. A large change to the institutional framework, such as the creation of the euro by a group of European countries, will realign after a transition period—the party system as well. The new political landscape may not be compatible with the institutions that triggered it. To illustrate this point, we study the case of the euro and how the party system has evolved in Southern and Northern European countries in response to it. Full Article
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Federalism as a Constitutional Concept

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Richard H. Fallon, Jr. Debates about constitutional federalism—by which I roughly mean the division of powers and responsibilities between the national and state governments1—abound.2 Participants typically cast such debates as constitutional in character. Nearly invariably, however, policy concerns exert a dominating influence, either on the surface or just beneath it. More often than not, proponents offer federalism-based arguments on behalf of conclusions that they value for policy-based reasons. Reciprocally, champions of particular theories of constitutional federalism typically argue that their visions would yield better outcome —as measured along some dimension—than would any other understanding of the Constitution’s structure. In an effort to chart some dimensions of the relationship between federalism-based arguments and more overtly normative or policy based arguments, I pursue three lines of inquiry in this Essay. Full Article
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Dual Sovereignty Under the Constitution: How Best to Protect States Against Federal Taxation and Regulation

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Richard A. Epstein There is little doubt that the Framers of the United States Constitution had little awareness of the immense complexities that would creep into the constitutional system that they created in 1787 in Philadelphia. Their challenges were enormous given the necessity to determine the appropriate relationship of the states, both with each other and with the federal government. It is that last question that is the focus of this article, which asks the simple question of what level of protection states have from taxation and regulation by the federal government. Full Article
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Federalism and the Police: An Applied Theory of “Fiscal Attention”

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Peter J. Boettke, Liya Palagashvili & Ennio E. Piano Policing in America has made a drastic transformation over the midtwentieth century. Local police agencies today are more federally funded, they “dress” like the military, they police more federal initiatives, and the constitutional and fiscal boundaries between local police and the federal government have been blurred. At the same time, conflicts between communities and the police have intensified and the trust between the two has diminished. Our paper investigates the transformation of local policing in a federal system. We analyze how the decisions of policymakers and agencies at the federal level can alter the choice set and associated payoffs faced by local police departments, and how that changes the nature of local policing services. We then discuss how this framework can…
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Dealing with Disaster: Analyzing the Emergency Constitutions of the U.S. States

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Christian Bjørnskov & Stefan Voigt The study of constitutional emergency provisions remains in its infancy. We present the first overview and analysis of how specific emergency provisions vary across the fifty U.S. state constitutions. The emergency provisions vary considerably across states with the Texas Constitution exhibiting the most limited provisions and Georgia the most expansive ones. A cluster analysis shows support for dividing the U.S. constitutions into six “families” and reveals the Texas Constitution as substantially different from the rest. We explore whether these constitutional choices may have been affected by disaster risk, prevailing ideology, state wealth, and other factors for which historical data exist. We provide tentative evidence showing that emergency provisions have a significant effect on both the number of fatalities as well as on the damage suffered in…
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Voting vs. Moving: Exit and Voice Mechanisms in the EU Federalism

2017, Current Issue, Print, Volume 49 (2017) Issue 3 (Fall)
Rosamaria Bitetti European economic crisis has put a strain to the European Union governance model, which has been for a long time characterized by a multi-layered decision-making process, affected more by expert-technocratic knowledge than by democratic participation. This paper analyzes two forms of feedback European citizens have given to a crisis that affected asymmetrically different member states, undermining the ability for the central level to coordinate the local levels. The first response is political: European member states, as well as EU parliamentary election, have experienced in these recent years the rise of “populist” parties and a strong antagonistic reaction to an increased number of referendums in EU member states. The other feedback is migration: intra-EU migration, while being one of the four pillars of European integration, has always been a relatively…
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