Anthony Lewis forgets federalism?

Mortimer Sellers msellers at UBMAIL.UBALT.EDU
Thu Mar 21 13:43:47 PST 2002

The deliberations that preceded the formation of the United States of
America as a confederated republic of sovereign commonwealths represent
the most profound public discussion of the first principles of political
science that the world has ever known.  The consensus then (and not only
in the United States - see also Kant, Montesquieu, Rousseau) was that
local cultures naturally and properly emerge among neighbors, to reflect
local circumstances, and that these communities constitute natural
republics.  States that get too big become oppressive as they lose touch
with local circumstances. On the other hand, small republics that are too
homogenous oppress local minorities.  Federations of republics solve this
problem by protecting human rights and other universal interests through
federal institutions, while allocating cultural policy to each of the
constituent republics.  The criticism of the United States in the
eighteenth century was not that the states were too autonomous, but rather
that they were too large.  Like France, California and New York (to give
two American examples) may simply be too large to avoid domination by
privileged elites.  Federalism makes communal solidarity possible on a
regional basis, while constraining the excesses of local majorities. That
is the main argument in favor of our federal institutions.  One gets the
benefits of scale, where appropriate, while maintaining the principle of
subsidiarity for properly local concerns.

On Wed, 20 Mar 2002 17:05:00 -0500 (EST) David Bernstein
<DavidEBernstein at AOL.COM> wrote:

> For the record, I would see value in federalism even in a completely
> homogenous society, because (1) random factors would still lead to somewhat
> different policies in different jurisdictions, and allow the people to "vote
> with their feet", experiments in the laboratories of democracy, and other
> metaphors that I will not mix here and (2) because decentralization of
> authority is a check on the potential exercise of tyrannical authority by the
> central government.
> When I teach Environmental Law, I point out that law professors and federal
> judges (not to mention New York Times columnists) are among those least
> likely to have sympathy for federalism, because they are among those who most
> likely have lived lives of true "national" citizens--growing up in one state,
> going to school in one or more other states, and working in yet other states,
> and traveling frequently throughout the country and the world.  It strikes
> many of us as absurd that Massachusetts would be governed by entirely
> different laws than Missouri.   But then, the nuisances and inconvenciences
> of such a system are blatantly obvious, while the benefits from dispersed
> power, etc., are largely invisible.
> In a message dated 3/20/2002 4:46:50 PM Eastern Standard Time,
> IMylchreest at CS.COM writes:
> > The Tushnet-Bernstein notion of federalism requires marked cultural
> > differences to sustain, and seems tied the original rationale for
> > federalism. But even if federalism does not protect cultural differences
> > any longer, it is still sustained by local political and economic interests
> > which can reinflate federalism as needed.
> >
> David E. Bernstein
> Associate Professor
> George Mason University
> School of Law

Prof. M.N.S. Sellers
Director, Center for International and Comparative Law
University of Baltimore School of Law
1420 North Charles St.
Baltimore, Maryland  21201-5779


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