Federalism and the Tug of War Within

This book explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration.  Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself. The book argues that American federalism is best understood...

This book explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration.  Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself. The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters—including checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. Instability in the Supreme Court’s federalism jurisprudence reflects its ongoing attempt to reconcile the tension through successive theories of federalism, each privileging different values in the federalism constellation. It traces federalism’s internal struggle through history and into the present, critiquing the Rehnquist Court and Tea Party’s embrace of greater jurisdictional separation, the limits of New and Cooperative Federalism approaches, and the growing disjuncture between federalism theory and practice. The book then outlines a Balanced Federalism alternative, mediating federalism’s tensions on three separate planes: (1) fostering balance among the competing federalism values, (2) leveraging the functional capacities of all three branches of government in interpreting federalism, and (3) maximizing the wisdom of both state and federal actors in so doing. It articulates distinct judicial and political roles in navigating jurisdictional overlap, including strong and weak judicial constraints in Tenth Amendment contexts and deference to intergovernmental bargaining. Forging new territory in the federalism safeguards debate, it provides theoretical justification for the political safeguards already in operation while preserving a role for judicial review. The resulting dynamic model fosters a healthier dialectic between the core principles and functional capacities that—though in tension—have made the American system of government so effective and enduring.