Yale Law School has organized a conference on The Constitution in 2020, a much-discussed recent book that puts together contributions by numerous prominent left of center scholars on the future of constitutional law. To their credit, the conference organizers have chosen to invite scholars with a wide range of viewpoints to the conference, including some who are conservative or libertarian. I will be appearing on the panel on Localism and Democracy, along with Ernest Young (Duke), Rick Schragger (Virginia), Ethan Leib (UC Hastings), and Judith Resnik (Yale, author of the chapter on federalism in The Constitution in 2020). The conference organizers have also created a website where each participant can summarize their presentations in a short blog post. Mine is available here. I include a brief excerpt below:
American federalism faces both great promise and serious dangers over the next few years. One of the most important advantages of federalism is the ability to “vote with your feet” – to leave a state with oppressive or ineffective policies and move to a better one . . . Increasing mobility and declining information costs give state and local governments stronger incentives to adopt policies that will be attractive to migrants. Revenue-hungry state governments know that valuable taxpayers will depart if they raise taxes too high or provide poor public services….
Unfortunately, American federalism is imperiled by the ongoing growth of federal power, especially the increasing dependence of state governments on federal funds. Our system has been successful in part because state governments have historically been forced to raise most of their revenue themselves. State governments that raise their own funds have strong incentives to adopt policies that promote economic growth and attract potential migrants. A state that falls behind its rivals is likely to lose its tax base. But states that can rely on federal funding to meet their fiscal needs face much less competitive pressure and are therefore less likely to adopt good policies…..
Federalism has also been weakened by the expansion of Congressional regulatory authority. The federal government has come to regulate almost every aspect of American society. This trend accelerated under the Bush Administration, which pushed through legislation expanding federal control of education and health care, and supported federal preemption of a variety of state laws, including ones permitting assisted suicide and the use of medical marijuana. The more policy areas come under federal control, the less the scope for interjurisdictional competition at the state and local level….
The 21st century could be an extraordinarily successful time for American federalism – but only if we restrain the growth of federal power.
Posts by the other participants are also available at the Constitution in 2020 blog site. The conference at YLS will be held October 2 to October 4. They are well worth reading if you are interested in the future of federalism. Yale has posted the conference schedule on its website.
UPDATE: In the original version of this post, I mislabeled Prof. Ernest Young’s school affiliation. I apologize for the error, which has now been corrected.