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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.