You are on page 1of 16

American Academy of Political and Social Science

Puppy Federalism and the Blessings of America


Author(s): Edward L. Rubin
Source: The Annals of the American Academy of Political and Social Science, Vol. 574, The
Supreme Court's Federalism: Real or Imagined? (Mar., 2001), pp. 37-51
Published by: Sage Publications, Inc. in association with the American Academy of
Political and Social Science
Stable URL: http://www.jstor.org/stable/1049053
Accessed: 03-08-2016 22:24 UTC

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.

Sage Publications, Inc., American Academy of Political and Social Science are collaborating
with JSTOR to digitize, preserve and extend access to The Annals of the American Academy of
Political and Social Science

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
ANNALS, AAPSS, 574, March 2001

Puppy Federalism and


the Blessings of America

By EDWARD L. RUBIN

ABSTRACT: Federalism is a system of governmental organization


that grants subunits of a polity definitive rights against the central
government. It allows these subunits to maintain different norms, or
policies, from those of the central government. Thus it differs from de-
centralization, which is a strategy that the central government
adopts in order to carry out its norms or policies more effectively. Fed-
eralism is a useful approach when people in a given area have such
basic disagreements that they will not agree to live together in a sin-
gle polity and be bound by its decisions. The United States is blessed
with a sense of national unity that makes federalism unnecessary.
This was not the case prior to the Civil War, however, and our contin-
ued nostalgia for that period induces us to adopt puppy federalism,
which looks like the real thing but isn't. Legal scholars should not al-
low themselves to be fooled; however, as current legislation by the Re-
publican Congress indicates, real federalism garners no support in
our political system.

Edward L. Rubin is professor of law at the University of Pennsylvania Law School.


He taught at the University of California, Berkeley (Boalt Hall) from 1982 until 1998
before moving to Penn. He teaches administrative law, commercial law, and law and
technology (e-commerce and bioethics). He is the author of Judicial Policy Making and
the Modern State: How the Courts Reformed America's Prisons (1998, with M. Feeley),
The Payment System: Cases, Materials and Issues (2d ed., 1994, with R. Cooter), and
numerous law review articles, as well as the editor of Minimizing Harm: A New Crime
Policy for Modern America (1998).

37

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
38 THE ANNALS OF THE AMERICAN ACADEMY

government that the Framers main-


T HEthat
United
enjoysStates is a nation
many blessings. We tained, when, of course, we have; that
have vast reserves of petroleum (al- we are not a bureaucratized adminis-
though we are using them up), mag- trative state, when, of course, we are;
nificent forests (although we are cut- and that we are a geographically
ting them down), spacious skies, diverse nation, whose regions exhibit
amber waves of grain, lots of coal, and interesting differences, when, of
the world's leading supply of molyb- course, we are a highly homogenized,
denum. We also have wonderful po- commercial, media-driven culture
litical resources: the English tradi- smeared across the width of an entire
continent.
tion of liberty, well-established
representative institutions, a willing- This article begins by defining fed-
ness to channel political commit- eralism and identifying the purposes
ments into two major parties, a deep it serves. It then discusses the great
understanding of law, and a pleasures of being able to dispense
long-standing ability to solve civil with it. The next section briefly
conflicts through adjudication. describes the way this fortunate situ-
Perhaps the most valuable of ation evolved in the United States,
these political resources, however, is and the final section explains how
that situation is combined with
our sense of national unity, our belief
that we constitute a single people puppy federalism in current legisla-
and a single polity. One of the reasons tive policy.
why this is such a great blessing is
that it allows us to dispense with fed- WHAT IS FEDERALISM?
eralism. A subsidiary blessing is that
it allows us to ignore the political Federalism is a principle of politi-
questions that underlie federalism, cal organization in which a single
issues that we would like to ignore polity, or nation, has both a central
because they point to the autocratic government and separate, geograph-
origins of all governments, and the ically defined governments that are
impossibility of using democratic subordinate to the central govern-
principles to constitute a polity. ment in certain matters but inde-
This fortunate situation did not pendent of it in others (Elazar 1984,
obtain at the beginning of our history, 2; Leach 1970, 1-10). This partial
and we feel a bit guilty about basking independence means that there are
in its glow today. Consequently, we certain matters in which the sepa-
have fashioned something for our- rate governments can assert a claim
selves that can be described as puppy of right against the central govern-
federalism; like puppy love, it looks ment or, alternatively, in which the
somewhat authentic but does not central government is precluded
reflect the intense desires that give from issuing commands to these sep-
the real thing its inherent meaning. arate governments (Riker 1964, 11;
The main purpose of puppy federal- Scheppele 1989). The definition is
ism is to convince ourselves that we intentionally broad and may include
have not altered the conception of the some approaches that most people

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
PUPPY FEDERALISM 39

would not regard as federalism, such the one that the central government
as the existence of partially inde- has established: to produce more
pendent subgovernments in only rutabaga. In a truly federal regime,
some parts of the nation. One thing the subunits are able not only to
that it does not include, however, is a select their own strategies in the
unitary regime that has decided to matters allocated to them, but to
decentralize certain governmental define their own goals; they pos-
functions (Beer 1993, 20-25; Kreimer sess the policymaking, rutabaga-
1992). Malcolm Feeley and I have choosing power of an independent
discussed this distinction at some government.
length (Feeley and Rubin 1998, The distinction between federal-
171-203; Rubin and Feeley 1994). ism and decentralization is worth
Decentralization, or devolution, to maintaining because it is necessary
use the au courant term, is a decision for coherent discussion of govern-
by the central government autho- mental organization. With the possi-
rizing its subordinates, whether geo- ble exception of some postage-stamp
graphically or functionally defined, states such as Monaco, San Marino,
to exercise authority in certain areas. and Nauru, every nation is decen-
It differs from federalism in that the tralized to some extent; they all have
subunits that have been authorized territorial subunits exercising some
to act do not possess any claim of degree of governmental authority. It
right against the central govern- is virtually impossible to run a gov-
ment. That government has given ernment without some reliance on
them their authority by some estab- this mechanism. Thus, if we use the
lished political or legal mechanism term "federalism" to refer to decen-
and can take it away by the same tralization, every nation is federal,
means. and we will need some other term to
Decentralization is a manage- distinguish nations such as Belgium
ment decision that is intended to or Canada, where the subunits exer-
implement the policies selected by cise claims of right against the cen-
the central government as effectively tral government (Fitzmaurice 1983;
as possible (Kochen and Deutsch Mackey 1999), from nations such as
1980; Morris 1968). If the govern- Japan or France, where they do not.
ment decides to maximize rutabaga Why would a nation opt for feder-
production, for example, either it can alism as a mode of internal organiza-
devise a uniform agricultural policy, tion? Clearly, it would not do so to
or it can assign the task of developing implement any substantive policy,
agricultural policy to regional such as maximizing the production of
administrators, on the theory that rutabaga or providing people with
these administrators are better able greater input into government deci-
to account for particular conditions sions. For example, if national
in their area or that the local farmers authorities felt that a regional or
trust them more. Whatever the rea- local government would be more
son, however, and whatever the level effective than the central govern-
of decentralization, the goal remains ment in implementing a policy of

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
40 THE ANNALS OF THE AMERICAN ACADEMY

increasing public participation, they discriminated against in the larger


would opt for extensive decentraliza- unit; that resources within the geo-
tion of governmental functions. They graphic region they inhabit will not
would not opt for federalism because be used for their benefit; that policies
federalism represents a relinquish- will be imposed on them that they
ment of control over the subunits and find intolerable; or simply that they
thus risks the frustration of the pol- want to retain their own identity
icy that the nation, as a whole, wants (Dikshit 1975; Duchacek 1970;
to achieve. Under federalism, some of Hannum 1990). Federalism is a solu-
the subunits might use their newly tion to this problem, a compromise
acquired autonomy to allow the between unity and independence.
greater popular involvement that Decentralization is not sufficient
their smaller size, by hypothesis, in a situation where one or several
facilitates, but other subunits might groups are unwilling to submit to
establish autocratic regimes or dele- central control. The compromise that
gate their authority to the Catholic these groups want is federalism; they
Church or generate their policy deci- want the autonomy of their subunit's
sions with a computer program. The government to be protected as a
central government, having relin- right, not merely recognized as a
quished its right to control these sub- desirable policy (Friedrich 1968,
units, would not be able to reverse 188-227). By virtue of this recogni-
such nonparticipatory policies to ful- tion, the autonomy they have secured
fill its original goal. is placed outside the realm of ordi-
The reason nations opt for federal- nary politics. The king cannot elimi-
ism is that it is an alternative to dis- nate it by an ordinary royal order; the
solution, civil war, or other manifes- voters, or their representatives, can-
tations of a basic unwillingness of the not do so by a simple majority. In our
people in some geographic area to system, this means that the courts,
live under the central government acting in response to a claim of right,
(Buchanan 1991; Sunstein 1991). will invalidate normal legislation
Conversely, the reason groups of that trenches on the agreed-upon
nations or other polities that want to autonomy of the subunits (Choper
combine opt to create a federal sys- 1980). That autonomy can be altered
tem, as opposed to a unified one, is only by a constitutional amendment.
that the people in the separate poli- It is apparent that the issue of fed-
ties are unwilling to submit to uni- eralism is closely related to the ques-
fied, central control (Bartkus 1999). tion of political identity on two levels.
In either case, the motivation is a First, the question for each citizen is
basic lack of national unity, an whether she regards herself primar-
unwillingness of some groups to sub- ily as a member of the nation or as a
mit themselves to centralized con- member of the subunit to which she
trol, to regard themselves as mem- belongs. Second, the question for an
bers of a single polity that must, for observer is whether the subunit or
better or worse, reach collective deci- the nation as a whole will be
sions. They may feel that they will be regarded as the actor in a given

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
PUPPY FEDERALISM 41

situation. Most political theories nation's political process and that a


refer to collective entities as actors; decision, having been reached, will be
for institutional theorists, these enti- obeyed. Other disagreements will, of
ties are emergent institutions, with course, remain; there may be con-
inherent modes of action; for positive flicts between social classes, ethnic
political theory, they are rational groups, religious groups, or purely
beings whose behavior can be mod- ideological alliances, and these con-
eled; for methodological individual- flicts may lead to violence. But the
ists, like microeconomists, they are disagreements between groups of
convenient heuristics; for general people who live in different geo-
will theorists, they are real beings. graphic regions of the nation will not
But who is the collective actor? In a rise to this intensity; people will
centralized system, it is clearly the value their membership in the nation
nation; we can say that the govern- over their sectionally specific views
ment of France, or even France, has and will compromise those views, or
decided on a certain policy and wants even abandon them, in conflictual
to implement it by using a strategy of situations.
decentralization. In a federal regime, Not only does a sense of national
however, the central government and unity remove one major source of
the quasi- autonomous subunit both political conflict, but it removes the
possess a political identity. When we most dangerous source of such con-
speak of a policy choice, we must flict. While it is possible for two con-
decide in advance whether that
tending groups that are geographi-
anthropomor- phized behavior repre- cally intermixed to rip a nation and
sents the actions of the central gov- themselves apart, as has occurred in
ernment or the government of a Lebanon, Rwanda, and (at a regional
quasi-autonomous subunit. In addi-
level) Northern Ireland, most in-
tion to speaking of the national inter-
tense conflicts tend to be sectional, as
est, and the interests of the citizens
Kosovo, Chechnya, Nagorno-
as individuals, we must factor in the
Karabakh (Armenia-Azerbaijan),
interest of the subunits as political
actors on their own.
Kurdistan, Eritrea, the Ogaden
(Ethiopa-Somalia), Western Sahara,
Sudan, Kurdistan, Sri Lanka, and
THE BLESSINGS OF East Timor attest in recent history
NATIONAL UNITY alone (Buchanan 1991; Cassese
1995). In part, this may be because a
From the national perspective, a geographically defined group lacks
sense of unity among its citizens, a the cross-cutting ties with others
willingness to act as part of a single that racially or religiously defined
polity, is a political resource of enor- groups often possess (Hannum
mous value, more valuable than 1990). In part, it may be that seces-
petroleum, molybdenum, or ruta- sion is a viable option only for geo-
baga. It means that sectional dis- graphically defined groups and that
agreements or rivalries will be this extreme solution is an induce-
resolved within the context of the ment to political extremism

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
42 THE ANNALS OF THE AMERICAN ACADEMY

(Buchanan 1991; Dikshit 1975). established by purely democratic


Whatever the reason, a nation is not means.

only fortunate-it is blessed-if it Assume, for example, that there


does not have any such groups, if the are three contiguous administrative
people in every region feel a greater units of a colonial power in a given
loyalty to the nation as a whole than area, a large one and two smaller
they do to their particular region. ones. All of them rebel and win their
In a democracy, national unity, freedom. For simplicity, assume as
and the resulting lack of sectional well that all the inhabitants of these
divisions, confers a further, if some- units agree that the only viable alter-
what more abstract advantage. It natives are that the separate units
conceals from the nation's citizens, form independent nations or that
and perhaps even from its political they aggregate into a single nation,
theorists, the awkward fact that and that they further agree on the
democratic mechanisms cannot be kinds of people who are entitled to
used to constitute the nation. Cre- cast votes on political matters and
ating a nation requires some form of that all votes should be decided by a
autocracy. The reason is that the simple majority. The question then
defining feature of democracy, in arises whether these separate units
either its direct or representative should form a single centralized
varieties, is that major decisions are nation, compromise by creating a fed-
reached by the people themselves or eralist structure where the preexist-
by their elected representatives ing units retain autonomy in certain
(Birch 1993, 45-68; Held 1996, 70- areas, or become independent of one
120). In practical terms, this means another. In the large unit, there are 1
that the decisions are reached by million eligible voters, and an over-
having the people vote, either for the whelming majority-800,000-
policy itself or for the representatives favor a unified regime. In the two
who in turn select the policy. Before a smaller units, there are 150,000
vote is taken, however, someone must voters each, and 100,000 favor the
decide who is eligible to vote and independence of their unit, a situa-
what the rules for conducting that tion that is not at all implausible,
vote will be. That decision obviously given how the votes will go in a
cannot be determined by a vote; it unified regime. If the three units
requires an autocrat of some sort, an vote as a totality, unification will
individual or an elite, who can estab- prevail by a vote of 900,000 to
lish the initial rules. Thus the princi- 200,000; if they vote separately, the
ple of democracy, although it may be two smaller units will opt for inde-
a perfectly good way to run the ordi- pendence by substantial margins.
nary business of government, cannot But who is to decide on the voting
stand on its own. If we start, either in procedure? Clearly, this cannot be
reality or as a thought experiment, done by democratic vote, since a vote
with people in a pregovernmental requires a defined electorate, and the
condition, no government can be definition of the electorate is

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
PUPPY FEDERALISM 43

precisely the point at issue. Some the theory and practice of democracy
sort of autocratic decision is by making it essentially irrelevant.
required. This awkward problem
can be ignored, however, if majori- FEDERALISM IN
ties in all three units favor unifica- AMERICAN HISTORY
tion, or separation for that matter.
In that case, the result will be the For most of its history, the United
same under either voting pattern. States was a nation that needed fed-
One could say that the vote could be eralism. The sense of national unity
taken once by each method, which that would have led the voting popu-
would satisfy everyone's preference lace to choose a unified, national
(by hypothesis) or, alternatively, that regime did not prevail among the 13
it does not violate the principle of American states at the time the Con-
democracy to choose the voting stitution was ratified and the United
method by nondemocratic means, States was formed (Rakove 1979).
since that choice will not make a People's loyalty to their own state
difference. was stronger than their loyalty to the
This is not an abstract matter; it is nascent national regime, and thus
a crucial feature of national politics they opted for a federal system,
that implicates the precise issues to where the constituent states
which federalism is addressed. From retained large areas of autonomy as a
a national perspective, a proponent matter of right (Lutz 1988; Rakove
of representative democracy believes 1996, 161-202). Nor was there suffi-
that a constitution should be estab- cient unanimity about the federalist
lished, and leaders should be chosen, solution to mask the authoritarian
by a majority of the electorate. But origins of the government. While a
those whose primary loyalty is to a majority of the people, when consid-
geographic region of this nation will ered as a totality, probably favored a
object. "We do not want to be gov- federal union, a majority of each
erned by strangers," they will say, state's population did not. In at least
"and the fact that those strangers are two states, North Carolina and
more numerous than we are only Rhode Island, the majority was
makes the situation worse. We, too, opposed, so that the autocratic man-
believe in democracy, and we want a ner in which the ratification process
majority of the people-our people-- was established made a difference
to decide whether we want to join (Main 1961, 249; Van Doren 1948). In
your nation, and on what terms. If a fact, these two states joined the
majority of our people want to have Union only because they were com-
an independent nation, rather than pelled by further autocratic means.
being part of a larger one, that major- The same autocratic compulsion was
ity should not be overridden by out- applied to those regions within and
siders." A sense of national unity that beyond the established states with a
is shared by every region of a nation Native American majority. It may
conceals this awkward difficulty in also be assumed that, in any state, or

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
44 THE ANNALS OF THE AMERICAN ACADEMY

section of a state, where the majority regarding slavery. Consequently, they


of the people were slaves, that major- decided to secede (Stampp 1959).
ity would have preferred to establish At this point, of course, the demo-
an independent regime where they cratic process and every other pro-
were free, rather than joining a cess of ordinary government broke
nation that continued to enslave down. The people of the North could
them. no longer use voting, persuasion, or
During the first half of the nine- an appeal to national unity to con-
teenth century, the new, federally vince the white people of the South to
organized nation was subject to two rejoin the Union because the south-
conflicting trends. On the one hand, erners no longer regarded them-
the success of the central govern- selves as part of the same polity. The
ment, its general respect for white only remaining approach was to start
people's rights, its acquisition of killing them and devastating their
vast territories, and the dramatic lands until they decided that the
increase in national wealth that it amount of misery that was being
seemed to engender all contributed inflicted on them exceeded their com-
to a growing sense of national unity. mitment to slavery. At that point,
People began to think of themselves they rejoined the Union on the cen-
as Americans, rather than Georgians tral government's terms.
or New Yorkers (Ackerman 1991, Despite this unpromising begin-
3-33; Beer 1993, 360-77). At the same ning, the nation was restored and a
time, however, the rejection of slav- sense of national unity gradually
ery in the North (Hildreth 1854; developed. Slavery was the principal
Olmstead 1953) and its enthusiastic thing that had distinguished the
continuation in the South (Fitzhugh South from the North; the other char-
[1854] 1965) created an ever widen- acteristic features of southern cul-
ing division. To the people of the ture had been products of that basic
North, slavery was a violation of the difference. With the military defeat
nation's true norms, and the people of of the South, and the subsequent rec-
the southern states were disruptive ognition that slavery was beyond res-
members of the polity who were vio- toration, white southerners began to
lating those norms. But the white see themselves once more as mem-
people of the southern states, the bers of the United States. Within
only people in those states with a that general framework, however,
political voice, were more committed they still wanted to retain their
to the institution of slavery than they familiar social hierarchy and so pro-
were to the Union; despite their ceeded, through the Ku Klux Klan,
growing commitment to the nation in the crop lien system, the Jim Crow
other areas, enough of their identifi- laws, and a variety of other mecha-
cation with their states remained nisms, to deprive the freed slaves of
that this identification could be reas- their newly won rights and the
serted, and become primary, when opportunity to improve their politi-
they found themselves unwilling to cal, economic, or social status
abide by the decisions of the majority (Gillette 1979; Litwack 1979; Wood-

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
PUPPY FEDERALISM 45

ward 1951). As the North's centraliz- elimination of the more subtle, incre-
ing impulse, fueled by moral outrage mental differences such as the
at the southern treatment of the South's lower levels of wealth, indus-
slaves, gradually waned, the south- trial development, and education.
ern states were allowed to maintain The New South that emerged during
the distinctive institutions that con- the 1970s and 1980s shared the
tinued African American subjuga- highly uniform, homogenized com-
mercial culture of the United States
tion. In every other major area--
language, religion, culture, race, eth- as a whole. Any further need for fed-
nicity, and political ideology-white eralism was thus eliminated.
southerners and northerners were
largely identical, and federalism PUPPY FEDERALISM
served no function. Its only purpose, IN MODERN AMERICA
in the period that followed the Civil
War, was to allow the southern states At present, the United States is a
to maintain their system of socially homogenized and politically
apartheid. centralized nation. Regional differ-
This system, and thus the role of ences between different parts of the
federalism in the United States, nation are minimal, and those that
lasted for about a century. Beginning exist are based on inevitable eco-
in the 1950s, white people in the nomic variations, rather than any
parts of the United States outside the historical or cultural distinctions.
South began to perceive the southern Thus North Dakota is somewhat dif-
treatment of African Americans as
ferent from Pennsylvania, but most
morally unacceptable. The result of those differences can be explained
was a series of actions by national by the differences in their economic
institutions, which were dominated base; in any country, no matter how
by these white nonsoutherners, to culturally uniform, agricultural and
abolish southern apartheid; they industrial districts will exhibit minor
included Brown v. Board of but predictable variations in political
Education' and other Supreme Court and social attitudes. There are also
decisions, the Civil Rights Act of variations in the concentration of
1964, and the executive policies of various religious and ethnic groups
the Kennedy, Johnson, and Nixon throughout the country. The low
administrations (Harvey 1971; Mar- salience of religious differences in
tin 1979). These actions were per- the United States, however, makes
ceived, quite correctly, as an abroga- these differences virtually irrele-
tion of America's remaining vant. Ethnic divisions are, of course,
federalist commitment to allow dis- more salient, and the concentration
tinctly different normative systems of African Americans in the South
to prevail in different states. The suc- prior to the 1950s was one of the
cess of the effort eliminated the bases of the South's distinctive cul-
major difference between the South ture and the continued relevance of
and the rest of the United States. It federalism. The massive migration of
contributed, moreover, to the African Americans to other sections

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
46 THE ANNALS OF THE AMERICAN ACADEMY

of the nation has largely eliminated under the current reading of the
this regional distinction; race rela- guarantee clause that restricts it to
tions remain a major problem in such matters (but see Merritt 1988),
America, but it is a problem that now there has been no felt need to
exists in virtually every region, invoke the clause, or otherwise inter-
where it is played out in similar vene in the political process of
terms. Hispanic and Asian ethnicity any state, during the entire course of
is also salient, but these groups have the twentieth century (Bonfield
also become widely diffused during 1962; Chemerinsky 1994; Choper
the postwar era. 1994). Most important, the primary
With the minor exceptions of Utah political loyalty of the vast majority
and Hawaii, there is no American of Americans is to the nation.
state with a truly distinctive social Not only are there no separatist
profile. Those differences that do movements in this country, but
exist may loom large to us, but that is there is hardly any talk of separatist
because of our insularity; once we movements. Virtually no group, no
compare our differences with the lin- matter how disaffected, even imag-
guistic, religious, cultural, and his- ines that it would implement its
torical differences that exist in large goals outside the nation as it cur-
nations such as India, Indonesia, and rently exists.
Nigeria, or even smaller ones such as Despite this high level of national
Spain, Cameroon, and itsy-bitsy Bel- unity, there remains a certain nostal-
gium, ours shrink to insignificance. gia for our bygone federalist system.
Our political culture is more uni- This nostalgia arises from at least
form still. The overwhelming major- three sources, and probably more.
ity of Americans identify with one of The first is that the Framers are cor-
two major political parties, whose rectly perceived as having estab-
differences, while again salient to us, lished a federalist regime, for rea-
are minuscule by international stan- sons described above, and we
dards. Our states, supposedly free to incorrectly fear that some horrible
establish their own regimes, have consequences will ensue if we admit
opted for highly similar structures that we no longer abide by their
with minor variations (Gardner intentions. Second, the yearning of
1992). No state has instituted a par- many Americans for the simplicity of
liamentary system, for example, the premodern era, and the more sin-
although that is the dominant pat- ister yearning of some Americans for
tern for democratic regimes in the the moonlight, magnolia, and
world today; only one state, mint-julep era of the antebellum
Nebraska, dispenses with the pecu- South, slides over to the federalism
liarly American feature of a bicam- that prevailed at that time. Third, we
eral legislature; no state denies its dislike the centralized administra-
courts the power of judicial review. tive state and see federalism as a
Certainly, no American state has welcome antidote to the government
even attempted to establish a theo- that we have created and that we
cratic or autocratic regime; thus, need but do not like.

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
PUPPY FEDERALISM 47

The result of all this yearning is with which they supposedly agree.
that we continue to insist that we For example, the 104th Congress
have a federalist system, even enacted the Church Arson Preven-
though we neither have it nor need it. tion Act of 1996, making destructive
The dangerous, debilitating prob- acts against religious institutions a
lems that federalism is designed to federal crime. The act's basis of fed-
resolve-the lack of national unity, eral jurisdiction is the one that pro-
the persistence of separatism, the ponents of federalism often dismiss
underlying social and political differ- as a pretext and that was used in the
ences that are cemented in place by statute struck down by United States v.
centuries of history and hatred-are Lopez2-interstate commerce. That
mercifully absent in the modern same Republican Congress also
United States. Consequently, we no enacted Megan's Law, requiring certain
longer recognize federalism as an offenders to register with state law
unfortunate expedient. The death, enforcement officers-apparently a
destruction, and misery that accom- case of the outrageous, Framer-
panied our Civil War, and that ignoring, states'-rights-crushing
reflected the problems that federal- commandeering of state officers that
ism addresses, have faded from our was struck down in United States v.
memories, to be replaced with mov- Printz.3 The 104th Congress also
ies, history books, battlefield sites, enacted the Drug-Induced Rape Pre-
and cutesy battle reenactments that vention and Punishment Act of 1996,
capture the romance of the war and which makes the use of "date rape"
ignore its horrors. Thus we can enjoy drugs a federal offense. In spirit, this
the idea of federalism because we act is an extension of the Violence
have forgotten the grave problems Against Women Act, which was
associated with its actuality. What passed just before the Republicans
we have instead is puppy federalism, took control of Congress and was
a thin patina of rights talk draped struck down in United States v.
across the areas where we have opted Morrison' on an interpretation of the
for decentralization as an adminis- interstate commerce clause. Tech-
trative strategy. nically, the act extends the Con-
The actions of the Republican- trolled Substances Act and will prob-
dominated Congress of the last six ably be invulnerable to judicial
years illustrate the superficiality of attack, but this only leads one to
American federalism. In general, the wonder why the Republican Con-
Republicans have declared a stron- gress feels comfortable endorsing
ger commitment to federalism than and extending a statute drafted in
the Democrats, yet recent Republi- 1970 by one of the most Democratic,
can Congresses have continued the nationalizing Congresses in history
policies of their Democratic prede- and taking away the states' police
cessors, enacting statutes that feder- power authority to decide which sub-
alize areas previously reserved to stances they will forbid their own cit-
state law and contradict the federal- izens to ingest. This is, incidentally, a
ism decisions of a Supreme Court live issue, as indicated by the various

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
48 THE ANNALS OF THE AMERICAN ACADEMY

states that have tried to modify their discourage the creation of


prohibitions against marijuana, only out-of-wedlock children, not to pro-
to run afoul of federal authorities. vide these children with support; as
The reason a Republican Congress the very first sentence of the act
would enact statutes of this sort is declares, "Marriage is the foundation
that our federalism is puppy federal- of a successful society." The method-
ism. When state policies correspond ology is to compel the states to
to national norms in a given area, or achieve specified results in accor-
when there is no national norm, that dance with the stated purposes,
area can be left to state authority. As rather than compelling them to fol-
soon as a national norm emerges, and low specified procedures. Thus the
some states diverge from that norm, statute gives block grants and does
federal authorities will act, as they not specify procedures. This
did against the southern states once undoubtedly gives the states more
racial equality became a general latitude in the procedural area, but it
goal. In the last two decades, crime imposes much greater demands
has become a matter of grave con- regarding the results. It defines crite-
cern, and the result has been a steady ria for an "eligible state" (two differ-
federalization of the criminal law ent sets of criteria, actually), a "quali-
that continues regardless of the fying state," a "high performing
party in control of Congress. When state," and a "needy state" (42 U.S.C.
the crunch comes, the crunch being a ? 403(a)). In accordance with these
political demand for action, federal- various criteria, it demands that
ism counts for nothing. each state submit a plan to show how
The 104th Congress's most signifi- it will achieve the statutory purpose,
cant legislative action, the Personal sets specific guidelines for rates of
Responsibility and Work Opportu- out-of-wedlock births and work par-
nity Reconciliation Act, might ticipation, places numerous prohibi-
appear to reflect a commitment to tions and limitations on the use of the
genuine federalism, but it does not; block grants, provides bonuses to
rather, it only underscores the high-performing states, imposes pen-
absence of any such commitment. It alties on states that fail to abide by
is true that this act changes prior law the limits on fund use or fail to
in providing block grants of federal achieve specified levels of results,
funds to the states, rather than chan- and requires frequent and detailed
neling federal grants to individuals reports (id. ?? 404-11).
through state administrators as had Is this really federalism; is it
been the case under the prior Aid to really the way one sovereign treats
Families with Dependent Children another sovereign? It seems to bear a
(AFDC) program. But the main rea- closer resemblance to the way a supe-
son for this, despite the federalist rior treats a subordinate administra-
rhetoric that accompanied its enact- tor, and not a very trusted subordi-
ment, was that the federal purpose nate at that. There is a tone in all
and federal methodology had these provisions, and particularly in
changed. The purpose is now to the bonuses and penalties, that is

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
PUPPY FEDERALISM 49

much more demeaning to the states thus its national government will
than the AFDC idea that they should continue to legislate on any issue
administer federal funds in a speci- that it and the nation in general
fied manner. The reason for this deem important. One possible con-
apparent breach of federalist eti- clusion is that the Supreme Court's
quette by a Republican Congress is recent federalism decisions are
not difficult to discern. Because we incorrect-which they are-but as
have only puppy federalism, the long as the ideology of the justices is
national government will give states not overly divergent from that of the
control over policy only in areas that nation as a whole, they are not likely
are not of national concern. It will to hand down any decisions with sig-
retain control over any policy that it nificant impact. The real message of
regards as truly important. When this discussion is for scholars. It is
AFDC was enacted, child poverty time to stop being fooled by political
was the predominant concern, and rhetoric and mistaking puppy feder-
the political subtext was that south- alism for the real thing. Real federal-
ern states could not be relied upon to ism is gone; America is a centralized
treat their African American citizens administrative state. Rather than
fairly. With the rise of the New South, mourning its demise, we should feel
and the decline in Congress's com- grateful that our nation no longer
mitment to racial justice, this con- needs this unfortunate expedient,
cern no longer predominates. and we should focus our attention on
Instead, we have the new moralism, complex and important issues, such
with public policy directed to pre- as decentralization. Instead of a the-
venting out-of-wedlock births and ory of federalism, we need a theory
ensuring that no one but the severely about what policies should be cen-
disabled receive welfare payments tralized, what policies should be
without working. The new law decentralized, and, in both cases, the
reflects those concerns. It does not optimal way for a national govern-
represent a decrease in federal con- ment to supervise the regional subor-
trol but a new methodology for con- dinates that we continue to describe
trol, a new public policy that the as states.
methodology is intended to achieve,
and a new political subtext that
seeks to discipline licentious New Notes
York and indulgent California,
1. 347 U.S. 483 (1954).
rather than racist Georgia and 2. 514 U.S. 549 (1995).
Louisiana.
3. 521 U.S. 898 (1997).
4. 120 S. Ct. 1740 (2000).

CONCLUSION

References
There is no major law reform con-
clusion to be derived from this dis-
Ackerman, Bruce. 1991. We the People.
cussion. The United States possesses Vol. 1, Foundations. Cambridge, Mass:
the blessing of national unity, and Belknap Press.

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
50 THE ANNALS OF THE AMERICAN ACADEMY

Bartkus, Viva. 1999. The Dynamic of Se- Elazar, Daniel. 1984. American Federal-
cession. New York: Cambridge Uni- ism: A View From the States. 3d ed.
versity Press. New York: Thomas Y. Crowell.
Beer, Samuel. 1993. To Make a Nation. Feeley, Malcolm and Edward Rubin.
Cambridge, MA: Belknap Press. 1998. Judicial Policy Making and the
Birch, Anthony. 1993. The Concepts and Modern State: How the Courts Re-
Theories of Modern Democracy. Lon- formed America's Prisons. New York:
don: Routledge. Cambridge University Press.
Bonfield, Arthur. 1962. The Guarantee Fitzhugh, George. [1854] 1965. Sociology
Clause of Article IV, Section 4: A Study for the South: Or, The Failure of a Free
in Constitutional Desuetude. Minne- Society. New York: B. Franklin.
sota Law Review 46:513-72. Fitzmaurice, John. 1983. The Politics of
Buchanan, Allen. 1991. Secession: The Belgium: Crisis and Compromises in a
Morality of Political Divorce from Fort Plural Society. London: C. Hurst.
Sumpter to Lithuania and Quebec. Friedrich, Carl. 1968. Constitutional
Boulder, CO: Westview Press. Government and Democracy. 4th ed.
Waltham, MA: Blaisdell.
Cassese, Antonio. 1995. Self-Determina-
tion of Peoples. New York: Cambridge Gardner, James. 1992. The Failed Dis-
course of State Constitutionalism.
University Press.
Michigan Law Review 90:761-837.
Chemerinsky, Erwin. 1994. Cases Under
the Guarantee Clause Should Be Jus- Gillette, William. 1979. Retreat from Re-
ticiable. University of Colorado Law construction, 1869-1879. Baton Rouge:
Review 65:849-80. Louisiana State University Press.
Hannum, Hurst. 1990. Autonomy, Sover-
Choper, Jesse. 1980. Judicial Review and
the National Political Process. Chi- eignty, and Self-Determination. Phila-
delphia: University of Pennsylvania
cago: University of Chicago Press.
Press.
-- . 1994. Observations on the Guar-
Harvey, James. 1971. Black Civil Rights
antee Clause. University of Colorado
During the Johnson Administration.
Law Review 65:741-47.
Jackson, MS: University & College
Church Arson Prevention Act. Pub. L.
Press of Mississippi.
No. 104-155. 110 Stat. 1392 (codified
Held, David. 1996. Models of Democracy
at 18 U.S.C. ? 247).
2d ed. Stanford, CA: Stanford Univer-
Civil Rights Act. Pub. L. No. 88-352. 78 sity Press.
Stat. 241 (codified in scattered sec-
Hildreth, Richard. 1854. Despotism in
tions of 42 U.S.C.).
America. New York: Negro University
Controlled Substance Act. Pub. L. No. Press.
91-513. 84 Stat. 1242 (codified in scat- Kochen, Manfred and Karl Deutsch.
tered sections of 21 U.S.C.). 1980. Decentralization: Sketches To-
Dikshit, Ramesh. 1975. The Political Ge- ward a Rational Theory. Cambridge,
ography of Federalism. Delhi: MA: Oelgeschlanger, Gunn & Hann.
Macmilllan Co. of India. Kreimer, Seth. 1992. The Law of Choice
Drug-Induced Rape Prevention and Pun- and the Choice of Law: Abortion, the
ishment Act. Pub. L. No. 104-305. 110 Right to Travel, and Extraterritorial
Stat. 3807 (codified at 21 U.S.C. 841). Regulation in American Federalism.
Duchacek, Ivo. 1970. Comparative Feder- New York University Law Review
alism: The Territorial Dimension of 67:451-519.
Politics. New York: Holt, Rhinehart & Leach, Richard. 1970. American Federal-
Winston. ism. New York: Norton.

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms
PUPPY FEDERALISM 51

Litwack, Leon. 1979. Been in the Storm Rakove, Jack. 1979. The Beginnings of
So Long: The Aftermath of Slavery. National Politics: An Interpretive His-
New York: Knopf. tory of the Constitutional Congress.
Lutz, David. 1988. The Origins of Ameri- New York: Knopf.
can Constitutionalism. Baton Rouge: -- . 1996. Original Meanings: Politics
Louisiana State University Press. and Ideas in the Making of the Consti-
Mackey, Eva. 1999. The House of Differ- tution. New York: Knopf.
ence: Cultural Politics and National Riker, William. 1964. Federalism: Origin,
Identity in Canada. New York: Operation, Significance. Boston: Lit-
Routledge. tle, Brown.
Main, Jackson Turner. 1961. The Rubin, Edward and Malcolm Feeley.
Antifederalists: Critics of the Constitu- 1994. Federalism: Some Notes on a
tion 1781-1788. Chapel Hill: Univer- National Neurosis. UCLA Law Review
sity of North Carolina Press. 41:903-52.
Martin, John. 1979. Civil Rights and the Scheppele, Kim. 1989. The Ethics of Fed-
Crisis of Liberalism: The Democratic eralism. In Power Divided, ed. Harry
Party, 1945-76. Boulder, CO: West- Scheiber and Malcolm Feeley. Berke-
view Press. ley, CA: Institute of Governmental
Merritt, Deborah. 1988. The Guarantee Studies.
Clause and State Autonomy: Federal- Stampp, Kenneth. 1959. The Causes of
ism for a Third Century. Columbia the Civil War. Englewood Cliffs, NJ:
Law Review 88:1-78. Prentice-Hall.
Megan's Law. Pub. L. No. 104-145. 110 Sunstein, Cass. 1991. Constitutionalism
Stat. 1345 (codified at 42 U.S.C. ? and Secession. University of Chicago
14071). Law Review 58:633-70.
Morris, William. 1968. Decentralization Van Doren, Carl. 1948. The Great Re-
in Management Systems. Columbus: hearsal. New York: Times Reading.
Ohio State University Press. Violence Against Women Act. Pub. L. No.
Olmstead, Frederick Law. 1953. The Cot- 103-322. 108 Stat. 1902 (codified in
ton Kingdom, ed. Arthur Schlesinger. scattered sections of 8, 18, and 42
New York: Knopf. U.S.C.).
Personal Responsibility and Work Op- Woodward, C. Van. 1951. The Origins of
portunity Reconciliation Act. Pub. L. the New South, 1877-1913. Baton
No. 104-193. 110 Stat. 205 (codified at Rouge: Louisiana State University
42 U.S.C. ?? 601-17). Press.

This content downloaded from 160.36.178.25 on Wed, 03 Aug 2016 22:24:59 UTC
All use subject to http://about.jstor.org/terms