Comparative Insights for Reconceptualizing American Federalism
SSRN Cleveland-Marshall Legal Studies Research Paper
federalism, intergovernmental relations, comparative constitutional, States' rights, territories, Native Americans, individual rights, citizenship, voting, equality
The legitimacy of U.S. juridical use of comparative constitutional law has sparked vigorous scholarly debate. Domestic judicial deployment of foreign sources has tended to occur on individual rights issues, including due process rights, rather than on structural constitutional features such as federalism. This Article seeks to demonstrate that despite the differences in governmental structure, a comparative legal approach to federalism offers remarkably valuable insights for a more accurate legal conceptualization of American federalism. At the conceptual and definitional level, federalism denotes at its simplest those forms of government that allocate power between a central government and regional or subnational governments. As such, the concept permits comparative governmental structural analysis - a scholarly field well recognized within political science. By contrast, within pro forma U.S. Supreme Court constitutional jurisprudence, American federalism is conceptualized as involving only two levels of government: the States and the Federal government. This conception is so foundational that one common synonymous term is dual federalism. Even restricting ourselves to the four corners of the Constitution itself, we find that this dualistic conception fails to encompass the range of subnational governments of constitutional cognizance. Attention to, for instance, the Russian presentation of its federal system, helps to unmask the more hidden elements of American federalism that have generally been left untheorized as elements of our federalism. At least three distinct additional types of subnational governments are explicitly contemplated by the US Constitution including a federal city (the District of Columbia), indigenous homelands (Native American tribal governments), and U.S. territories (e.g., Puerto Rico and Guam). Local governments are implicitly assumed but generally theorized as sub-State governments. By including the three additional genre of constitutionally mentioned governing units along with the States as elements of American federalism, various axiomatic propositions asserted as characterizing the U.S. federal system are rendered inaccurate or incomplete. For instance, it is often suggested that the American federalist system is rigorously symmetrical, that every State is entitled to the exact same powers and immunities as other States. But once we enlarge our vision of federalism and recognize that, for instance, the Federal City and territories are subnational governments within our federal system, then we find that the U.S. actually maintains an asymmetrical system of federalism, with radically different self-governance rights dependent upon whether a citizen resides in the District, a territory, a tribal homeland, or a State. This more accurate, complex and encompassing depiction of American constitutional federalism in turn raises as questions of federalism a variety of other questions, including whether the differential restrictions on citizen governing rights as between the States and the District can be justified, or whether the lack of territorial representation in the Electoral College for presidential selection is defensible. Yet other questions arise for both horizontal federalism (the relationships among these subnational units) and vertical federalism. Thus, defining US federalism as a matter of Nation-State relations renders other subnational governments and their peoples largely invisible. Only if the distorted conceptual and descriptive vision of the U.S. federalist system is corrected can legal and political science scholars (as well as mainland citizens) assess the legitimacy and fairness of the current structural allocations of power as between the various subnational units of American federal government and their citizens.
Candice Hoke, Comparative Insights for Reconceptualizing American Federalism, SSRN Cleveland-Marshall Legal Studies Research Paper No. 05-109 (February 2005)