My comrades have written great posts celebrating the value of a renewed focus on the state and the local and have made, in their own unique and rich voices, a compelling case for attending to the steadily expanding array of topics, doctrines, and controversies in our curriculum and in our scholarship. Count me in as an evangelist for this caus. And I look forward to what our myriad contributors to this blog will bring to this multifaceted sermon.
With this introductory post, I want to grab the attention of folks who are squarely focused on debates within national public law, especially constitutional law. Major debates rage, to put it mildly. With the stakes sky high in our current struggles over constitutional democracy, equality, and the perilous character of our national governance institutions, can we afford to dwell in these smaller legal neighborhoods?
Truly, we cannot afford to ignore them! For the reasons my colleagues have said. And here is another: debates over the structure of American federalism, debates which loom large in the background of of nearly every constitutional controversy (voting/electoral structures, criminal justice, press freedom, due process, etc.) are deeply and inextricably tied to debates about localism. Our framers understood that these issues of federalism and localism are connected. When James Madison wrote in Federalist No. 45 to reassure his readers that the protection against tyranny and imbalance lay in the synergies of federal and state governance he noted: "[t]he State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other."
In essence, what we celebrate and castigate about American federalism is bound up with what we hope and fear from the myriad institutions of governance, most of which function at the state and local level. So, for example, legal debates about the functioning of the criminal justice system will more often than not return to questions of how local schemes of law enforcement can navigate ubiquitous issues of safety and security on the one hand and embedded patterns of individual and social behavior that yield persistent injustice in choices about detaining, arresting, charging, trying, and sentencing individuals for what are usually state-level offenses. To be sure, the U.S. Constitution speaks with national authority in the criminal justice arena where individual rights are at issue, and has almost entirely been incorporated through the 14th amendment; and yet the details of governmental action and performance in the shadow of constitutional constraints, as well as the adaptation of practices in light of constitutional rules and doctrine, will require attention to local practices, local conditions, local knowledge.
Likewise, this is true of the cacophony of arguments about electoral structures and constitutional requisites under the Equal Protection clause. Consider this: the only nationally elected official in all of American constitutional government is the President. (And even that office is elected through a scheme that is hard-wired to state structures, through the Electoral College). Every other elected official, including all 535 members of Congress, campaigns in a state or local ecosystem. Even with the much-vaunted nationalization of the American party system, members of Congress, to say nothing of state legislators and elected executive branch officials, are formally and functionally accountable to sub-national voters. Moreover, the fundamental electoral structures, and those tasked with maintaining and implementing them, are matters of sub-national policy, as the continuing turmoil over the 2020 presidential election reminds us. So while a national institution such as the U.S. Supreme Court can certainly define the rules of the game through its interpretation of the U.S. Constitution, the implementation of these choices by lawmakers, judges, and interest groups of various sorts will have an impact in determining what emerges from the Court’s decisions.
The interaction between federalism and localism has been noticed in a burgeoning amount of scholarship, much of it developed in recent years by scholars who promise to contribute actively to this blog. Thus, let me put in a plug for this blog as a great location for perspectives on not only legal issues that arise in local settings and are resolved more or less by state and local decisionmakers, but also on the slate of issues in which local, state, and federal come one and all into our collective focus as scholars, public law lawyers, judges, and opinion leaders. Here's my hope, maybe even a prediction: after so many decades of concentrated energy in the constitutional literature to federalism as a top-down concept, looking at how the framers did, and ought to have, designed mechanisms and structures of intergovernmental relations in the rather short, and remarkably flawed, late 18th century document, now is the time for this energy to be refocused, to see how these institutions of governance actually interact with one another around common problems and predicaments. Federalism requires bottom-up and as well as top-down attention. Here's to our blog contributing to this "federalism is localism/localism is federalism" movement!