Federalism All the Way Down

In this Foreword, Professor Gerken argues that constitutional theories of federalism remain rooted in a sovereignty account, and they remain disconnected from the many parts of “Our Federalism” where sovereignty is not to be had. In these areas, she notes, institutional arrangements promote voice, not exit; integration, not autonomy; interdependence, not independence. Minorities do not rule separate and apart from the national system, and the power they wield is not their own. Minorities are instead part of a complex amalgam of state and local actors who administer national policy. And the power minorities wield is that of the servant, not the sovereign; the insider, not the outsider. They enjoy a muscular form of voice — the power not just to complain about national policy, but to help set it. Here power dynamics are fluid; minority rule is contingent, limited, and subject to reversal by the national majority; and rebellious decisions can originate even from banally administrative units. Professor Gerken uses the term “federalism-all-the-way-down” to describe the institutional arrangements that our constitutional account too often misses — where minorities rule without sovereignty.

If we were to orient constitutional theory around federalism-all-the-way-down, Professor Gerken proposes, we would find that there are new things to say about “Our Federalism.” Here she names three. Each touches on a key component of any theory of decentralization: (1) where power should reside, (2) how the center and periphery interact, and (3) why decentralization that takes this form is valuable. Each plays off a feature of federalism that scholars typically neglect because of their attachment to sovereignty.