I recently participated in a Tulsa Law Review symposium in honor of Yale Law School Professor Heather Gerken, one of the nation’s leading federalism scholars. Much of Gerken’s work urges her fellow political liberals to rethink their traditional distaste for federalism. My contribution to the symposium is now available on SSRN. Here is the abstract:
Professor Heather Gerken has made important contributions to our understanding of democracy and federalism. Part I of this article summarizes two of her most significant ideas. The first is “taking federalism all the way down,” the theory that many of the benefits of federalism can be enhanced by empowering local governments as well as states. The second is her insistence that federalism can be used to empower political dissenters, including racial and ethnic minorities. Subnational jurisdictions where nationwide minorities are in the majority enable these minorities to exercise power in their own right instead of relying on the good will of the national majority. In Gerken’s trademark phrase, they can “dissent by deciding.”
Part II proposes three extensions of Gerken’s ideas. First, both “federalism all the way down” and the empowerment of minorities might be enhanced by greater attention to the benefits of “voting with your feet” as well as voting at the ballot box. Foot voting has some important advantages over ballot box voting as a tool for actualizing political freedom and expressing dissent. Second, for minorities to be able to “dissent by deciding” effectively, Gerken may wish to rethink her opposition to judicial enforcement of constitutional limits on federal power. Finally, while Gerken argues that federalism may be beneficial for minority groups today, she accepts the conventional wisdom that it was largely detrimental to them throughout most of American history. In reality, however, the situation was far more nuanced. Although state and local governments often oppressed minority groups, so too did the federal government. During much of the last 200 years, African Americans and other minorities would have been even worse off with a unitary state than they were under federalism.