Some people dislike jazz.  To them, the melody of the song gets lost in a blizzard of noise.  Jazz aficionados hear something different.  They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government.  The federal government is delegated specific powers.  The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government.  What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states?  Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate.  Examples would include the Great Depression and the response to the September 11 attacks.  In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so.

In the controversy surrounding the chartering of the Bank of the United States, shortly after the Constitution was ratified, two of the Framers grappled with this dilemma.  The fact that they came to different conclusions continues to influence the debate over federal power today.   James Madison and Alexander Hamilton agreed that the delegated powers of the federal government should be interpreted broadly, but they differed in their view of whether the Constitution left any negative space for the federal government to expand beyond those powers expressly delegated to it.

Madison felt that the outer limits of federal government power were set by the understanding of the people at the time that the Constitution was ratified.  Those boundaries could not be expanded short of a constitutional amendment.  In contrast, Hamilton seems to have believed that these limits could be loosened or lifted through precipitous action by the federal government, explained and defended to the public, so long as the public demonstrated their approval of the new boundaries.  Hamilton’s conception of sovereignty allowed for the possibility that later generations of Americans might approve of a stronger national government than was originally envisioned, if they were persuaded that the extra authority was merited.

 Hamilton’s proposal to charter a national bank, and his adoption of the principle that even a federal government limited in its ends could employ tremendous discretion to achieve those ends, flowed naturally from his view that the Constitution left the federal government room to grow when acting in response to a truly national need.  Madison believed that the proposed bank was inconsistent with the original assumptions concerning the proper ends for which the newly created federal power would be used.  Madison thought it had been settled at the time of ratification that the federal government lacked the power to charter a national bank.  As a result, Madison came to align himself with the Ant-Federalists in opposition to the bank, and he would eventually articulate the States Rights political philosophy that continues to resonate with many Americans. 

In our constitutional system, the Supreme Court serves as the ultimate arbiter of whether an attempt by the federal government to expand into negative space is permitted.  In his recent book, Packing the Court, historian James MacGregor Burns paints a picture of a Supreme Court that has exercised this role in a reactionary fashion.  That the Court is able to play this role at all is solely the result of the bedrock doctrine of judicial review laid down in Marbury v. Madison.  Burns’ thesis is that this seminal case was wrongly decided.

Burns’ view of American history is sympathetic towards presidents who engage in the type of “transforming leadership” necessary to adapt the nation to new challenges and changing environments.  He criticizes the Supreme Court over the course of our nation’s history for often frustrating presidential attempts at transformative leadership through the illegitimate (in his eyes) vehicle of judicial review.  His book is an indictment of a Supreme Court that serves to further reactionary elements in our society rather than to respond to popular movements for reform (with the exception of the Warren Court, which Burns praises – inconsistently – for exercising judicial review in order to expand the scope of individual rights).

Although Burns views history through the traditional dichotomy of liberalism versus conservatism, we should recognize that the search for negative space is not an ideological issue.  The doctrine of the unitary executive, espoused by many of the leading lawyers in the Bush Administration as the justification for broad executive branch power after September 11, and still embraced by many leading conservative thinkers, is nothing if not a declaration that the Constitution leaves a great deal of negative space for the President to operate in in matters of national security.  In its cases dealing with the Guantanamo Bay detainees thus far, the Supreme Court has not foreclosed the possible existence of an expansive executive power so much as insisted that any unprecedented movement of executive power into spaces left open by the Constitution must come with the assent of congress.

Burns is correct that the Supreme Court has often used judicial review to deny attempts by the federal government to expand beyond the bounds that Madison thought were settled in 1789.  Early in the nineteenth century, Chief Justice John Marshall interpreted the federal sphere quite broadly.  However, later in the Court’s history the justices would rely upon doctrines of federalism to promote a political philosophy where state governments received first claim on the ability to expand into any negative spaces.  As our national economy grew larger and more intertwined, and as the role of the United States as a global superpower required a stronger federal hand in dealing with foreign nations, it became more difficult to argue that state governments could successfully occupy all of these open spaces.  The Great Depression, and two Wolrd Wars, forced the Court to recognize this reality.

In more recent years, the Supreme Court has relied upon theories of interpretation, most notably textualism, as the vehicle for denying the federal government the ability to expand its role beyond delegated bounds.  These theories have the benefit of applying without regard to whether state governments are capable of meeting the same demands that the federal government is seeking to satisfy, and therefore these theories have been more successful than federalism as a means of policing the expansion of the federal sphere in the modern economy.  However, the subjective way in which interpretive theory is inevitably applied has become apparent to all observers of the Court, with the consequence that the Supreme Court’s use of textualism has only served to increase public awareness of the Court’s growing institutional power and also of the ideology of its members.  Persons across the ideological spectrum share a discomfort with these developments.

There are early hints that persons seeking to deny the federal government the negative space in which to grow will next turn to moral philosophy, such as the theory of subsidiarity in the Catholic faith, as a vehicle for policing the federal government.  Whether or not these early efforts will mature into a coherent mode of constitutional interpretation remains to be seen.  If this effort fails, there will doubtless be other arguments advanced by those who seek to deny the existence of negative space in our Constitution.

What is undeniable is that the Constitution of 1789 was not written for a United States that had a complex and integrated national economy and that was a global superpower.  As the President and the Congress seek to navigate in such a world (and indeed, as the general public demands that they do so), some people will see only chaos and a lack of legitimate authority.  Other people will see an attempt to create something out of open spaces.

To call this clause of the Constitution “overlooked” is an understatement.  The authors of the Federalist Papers spent little or no time discussing the meaning of this clause.  The Supreme Court, when asked to interpret this clause, has generally admitted that it doesn’t have the slightest idea what it means—with the consequence that the Court has rendered the clause irrelevant and left it devoid of meaning.  This is a shame because, properly understood, I believe that this clause is one of the most important in the Constitution.

The federal government guarantees every state a Republican form of government.  What does the word “republican” mean?   It certainly does not refer to a specific political party.  Political parties did not even exist in 1789.

Today’s school children are generally taught that the clause is intended to guarantee that state governments use the mechanics of representative democracy over the mechanics of direct democracy.  This interpretation is incorrect.  While the Framers often wrote of the benefits of a political system whereby voters elected representatives who would make important decisions on their behalf, especially in instances where the geographic territory to be governed was large, the Framers never expressed the opinion that the direct exercise of democracy by the people should be prohibited.

Indeed, this incorrect interpretation of the clause is dangerous because it has led some observers to question the constitutionality of state-wide voter initiatives altogether, such as the ones that regularly go before the voters in California.  These types of initiatives may be unwise as a means of using direct democracy to determine the policies of state government.  But the use of state-wide initiatives of this type is certainly constitutional.

So if the “Republican form of government” clause does not prohibit the use of direct democracy as a means of state government, what is its purpose?  Simply stated, the clause prohibits the people of any state in the Union from amending their state constitution in order to adopt a monarchy or an aristocracy.

Recall that, prior to 1789, national sovereignty had always– with few exceptions– been lodged in either a monarchy or an aristocracy.  It was a novel idea to declare in 1776 that sovereignty belonged in the hands of the people.  Never before in human history had a nation of the size of the United States declared its intention to recognize its entire people as the ultimate sovereigns.  However, after the Articles of Confederation were adopted following the Declaration of Independence, the national economy was reduced to a shambles and our young country’s national security was questionable.  By 1789 it was natural to fear that the population in some states might eventually backslide and seek a return to a monarchy as a way of restoring public confidence and preserving order.

What Article IV does, then, is to deny to the people of the states the sovereign power to choose monarchy as a form of government.  This clause forever circumscribes the freedom of the people of a state to choose the way in which they govern themselves.  The denial of state power in this regard is necessary, because leaving the residents of a particular state with the absolute freedom to choose any form of state government would be an infringement upon the sovereignty of the people of the nation as a whole.

In fact, by stating that the federal government will “guarantee” a republican form of government, the Constitution makes it clear that the federal government is granted the power to enforce the prohibition on monarchy by force of arms if necessary.  Article IV makes it clear, even more explicitly than the Supremacy Clause in Article VI does, that the sovereign power of the people as a whole, as expressed through the federal government, is supreme over the sovereignty of individual states.   

If one state were to institute a monarchy, it would destabilize the entire Union of states.  In 1789, monarchies were viewed as inherently militaristic.  Monarchies place the decision of whether to resort to force within the hands of one single individual, where it is not subject to any checks or balances.  For a king, an increase in personal power and an expanded border provide mutually reinforcing temptations for invading your neighbors.

If the residents of one state were to adopt a monarchy as their form of government, neighboring states would feel threatened.  Monarchies require standing armies to maintain the king’s authority, and in order to redress an imbalance in power neighboring states would be forced to follow suit.  An alliance between two state monarchies would inspire neighboring republican states to enter into mutual defense pacts.  Imagine a United States with fences and checkpoints at the borders between the states.

The best interests of the nation as a whole require the residents of each state to cede away a portion of their political sovereignty to the nation: the ability to choose any form of state government that they desire.

This has important implications.  It implies that Lincoln was correct when he declared that the southern states had no right to secede from the Union.  While the text of the Constitution is silent on the right of secession, Article IV is an example of an overall constitutional structure that denies state residents the power to exercise political sovereignty within their own borders in a way that threatens national unity as a whole.  The denial of an absolute state power to secede is no greater a restriction on state sovereignty than the denial of an absolute state power to adopt a monarchy.

Some scholars have argued that Lincoln had to reinterpret the Constitution in order to impose a federal government of all the people that was supreme over the states.  In actuality, Lincoln was merely being faithful to the Constitution’s original design.

This understanding of Article IV Section 4 also implies that the Supreme Court was correct, in U.S. Term Limits v. Thornton, when it ruled that it was unconstitutional for states to amend their constitutions in order to impose term limits on their residents elected to federal office.  The Supreme Court’s majority opinion in that case relies upon a tortured interpretation of the various qualifications clauses of the Constitution, and the majority opinion raises Article IV Section 4 just long enough to dismiss the clause as irrelevant.  However, in the end the Court gets the basic point right by holding that state constitutions cannot impose term limits for federal office.

In his dissent in that case, Justice Thomas asserts that the Constitution’s authority depends on “the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.”  Had the majority not overlooked Article IV Section 4, the majority opinion would have had a greater textual basis to rebuke Justice Thomas.  Contrary to Justice Thomas’ assertion, the Constitution does take away from state residents the absolute power to control their own form of state government in cases where the national political structure is implicated.  The sovereign power to make decisions affecting the political structure of the nation as a whole rests with the people of the nation as a whole, not with the people of one state.

The text of the U.S. Constitution contains several clear statements that prohibit the states from frustrating the economic unity of the nation.  Economic protectionism is clearly precluded by the commerce clause, the privileges and immunities clause, and the full faith and credit clause (note that the latter two are also located within Article IV).  The fact that the text of the Constitution is far less clear about the predominance of federal interests when it comes to political unity has been the source of great debate and conflict during our nation’s history.

The debate between centralized power (sovereignty with a federal locus) and decentralized power (sovereignty with a state locus) goes back to the Federalist debate with the Anti-Federalists.  Even Madison and Hamilton themselves possessed contrary views on the matter (Madison generally favored decentralization while Hamilton strongly favored centralized government).  Commenting on the internal inconsistencies within the Federalist Papers on this topic, and the text’s sudden lurches between advocating a strong federal government at one point and then arguing in favor of state power moments later, some scholars have accused the Federalist Papers of reading as if its author was a paranoid schizophrenic.

Is it any wonder, then, that our nation’s history reflects this unresolved attitude toward who holds ultimate sovereignty?  The primacy of the federal political power over state sovereignty has been advanced by the jurisprudence of Justice John Marshall, the Civil War policies of Abraham Lincoln, and the New Deal legislation of Franklin Roosevelt.  The absolute sovereign power of the states to make political choices within their borders has been advanced by Jefferson and Madison in the Kentucky and Virginia Resolutions, by the secessionists during the Civil War, and by the leaders of the States Rights movement in the Twentieth Century.

Article IV Section 4 should remind us that under our Constitution the sovereignty of the people is a national sovereignty.  No state government, and no individual state population, has the power to take actions that threaten the political unity of the United States.  The federal government is superior to the states because it is only through a federal government that a national people can exercise their sovereignty.

No one denies that the Constitution forces the states into an economic union, even when they might prefer state protectionism.  Nonetheless, to this very day, many people still argue in favor of an absolute state sovereignty to decide political matters within their own borders.  By consistently overlooking the “Republican form of government” clause, we obscure the fact that the constitutional text imposes a political union on the states in a way that necessarily places a limit on individual state sovereignty.  By rescuing Article IV Section 4 from obscurity, we can resolve the debate over federal supremacy once and for all.

Subsidiarity tells us that a “higher order” of authority should not do what individuals or a “lesser order” can do for themselves. Thus, the argument might proceed, the federal government should not do what a state goverment could do. Government should not do what voluntary mediating institutions can do.

Conservatives often advance subsidiarity as a justification for limited government and it often is. But it’s not that simple either. 

The reasons are that subsidiarity is not simply a jurisdictional principle but reflects a judgment about — or at least emphasis of a particular perspective on — anthropology. It rests on a set of assumptions about the subjectivity of human persons. It is not only that granting freedom to individuals and the voluntary associations that they form will release human creativity, but that the release of creativity is itself an instrinsic good. True development of the human person requires his or her participation.

This suggests a limit on subsidiarity as a jurisdictional principle strictly defining the role of the state and the spheres of higher and lower levels of government. Catholic social thought also emphasizes solidarity. People are connected to one another and each should be committed to the common good of all. It emphasizes the human dignity of all persons and the duty of charity towards all. Every  individual ought to be able to exercise his or her subjectivity and government (or even larger private institutions) are not the only obstacle.

Sometimes intervention of a higher order may be required to make the exercise of subjectivity possible. This may threaten to mire us in indeterminancy. What do we do when the irresistable force of subsidiarity meets the immovable object of solidarity? 

I think that we can do many things. But it seems to me that some guidance is provided by the notion that policy must make space for human creativity and freedom. Although not every social outcome produced by human freedom is acceptable, it is not for the state to impose its view of the best of all possible worlds. Once it has done what it can (and that may be far from a guarantee) to ensure the conditions for human flourishing, it ought to step back and allow human beings to flourish.

I don’t know that this resolves many of the political disputes we have in the U.S., but perhaps it is a useful way to think about them. 

Cross posted at PrawfsBlawg.

The faculty at Marquette Law School welcomed Professor Marcia McCormick of the Samford University’s Cumberland School of Law to a faculty workshop this past Tuesday.  Professor McCormick, who focuses on the law of federal courts and employment discrimination, among other areas, discussed her new paper on the persistence of the case of Ex Parte Young in the face of the Federalism Revolution of the last two decades or so.

In her presentation, Professor McCormcick described the large number of U.S. Supreme Court decisions in the last twenty-five years that have touched on the relationship between the federal government and the states. In this time, the Court seems to have substantially limited the power of the federal government and expanded that of the states, as many Commerce Clause, Tenth Amendment, and Eleventh Amendment cases suggest.

She also maintained that despite what were seen by many to be revolutionary shifts, two doctrines that provide great power to the federal government seem to have survived so far with little or no change: Congress’ power under the Spending Clause to require states to engage in or refrain from engaging in certain conduct; and the federal courts’ power under Ex Parte Young to hear suits by private parties to force state officials to follow federal law, including laws created under the Spending Clause. The combination of these two doctrines provides for quite a bit of federal power, she argued, and it is the extent of that power which makes the continued survival of the doctrines so surprising.

Professor McCormick then explored the extent of power the federal courts and Congress can exercise over the states through the use of those combined doctrines and suggested some reasons the Court has not removed that power.  In this vein, she argued that it was likely that the Court sees this limited federal power as a necessary check on the states to ensure the supremacy of federal law, to maximize the efficient use of both federal and state power, and to maximize accountability and the rule of law for both the states and federal government.

A lively question and answer session followed Professor McCormick’s talk.   I have it on good authority that Professor McCormick’s favorite culinary adventure involved Kopp’s Custard in Greenfield.

WPRI has now published a study evaluating the probability of such migration. I have not yet carefully examined it, but I continue to believe that such migration (and the Supreme Court precedent that protects it) is a serious obstacle to state efforts to enact some form of universal health care and, for that matter, a variety of other initiatives that states may undertake in their once honored roles as “laboratories for democracy.”

Cross posted at PrawfsBlawg and Shark and Shepherd.

His post takes off from the recent ERISA preemption case of Golden Gate Restaurant Association, in which the Ninth Circuit recently held that a San Francisco ordinance demanding employers provide health benefits is not preempted by ERISA.  This holding is contrary to many of the cases in this area (and critiqued by ERISA luminaries like Ed Zelinsky) and the case is currently being considered for en banc review.

Here’s a taste of Rick’s insights:

San Francisco is now locked in a struggle with business over whether subnational governments can mandate that employers provide their employees with health care benefits. The employers are claiming that ERISA preempts the mandate, and their argument illustrates the insidiously anti-democratic nature of preemption arguments. As a matter of policy, I tend to agree that funding public benefits like health care through mandates on employers is foolish. Such a finance mechanism interferes with the mobility of labor and discourages job creation. Far better, it seems to me, to provide health benefits through general taxes not incident on employment.

But here is where I am a die-hard lover of federalism: As dumb as employer mandates are, centralizing debate over health care through a broad construction of ERISA preemption is even dumber.

Such centralization is an outrage against the democratic process both locally (by suppressing the efforts of those zany San Franciscans) and nationally (by letting Congress off the hook of confronting the relationship between health care and employment). San Francisco hurts no one but itself and its own residents by burdening business and driving away capital to the ‘burbs. The claim that national businesses will suffer some external cost outside San Francisco from disuniform regulation is patently baloney: Any business that operates in any city already must uncontroversially incur the costs of researching and complying with local zoning codes, local taxes and fees, local building codes, local safety regulations, etc. The marginal cost of insuring that one’s local branch complies with the local complying health care law is close to zero . . . .

For those who care about ERISA, why do I claim that preempting San Francisco’s ordinance is madness? The Restaurant Association is essentially making an effects-based preemption argument, asserting that SF’s ordinance effectively requires employers to change their ERISA benefits plans to comply with San Francisco law. The folly of this argument, however, is that it proves too much: Lots of local laws might have effects on employers’ incentives to provide contractual benefits. Medical malpractice lawsuits under state tort law might drive up the cost of insurance, leading the marginal employer to reduce employees’ health care benefits. Local zoning law could — indeed, does — increase housing costs, which increases the relative attractiveness of housing benefits to employers. But no lawyer in their right mind would argue that these state and local laws “relate to” ERISA benefits plan, because these laws’ obligations are not triggered by the existence of ERISA-covered employment benefits . . . .

Any other theory will draw the courts into a theory of preemption that could suck every state and local regulation of business into the maw of ERISA preemption — an outcome utterly unintended by anyone in Congress in the 1970s, when ERISA was enacted. For courts to create such centralization without Congress’ assent is, as I noted above, an outrage against common sense and subnational democracy. As I have argued elsewhere (Against Preemption: How Federalism Can Improve the Federal Legislative Process, 82 N.Y.U. L. Rev. 1 (2007)), ERISA preemption has also absolved Congress of the duty to confront the problem of how health care benefits relate to employment. Preemption, in short, destroys both subnational and national democracy . . . .

Although I have not agreed with Rick on other topics like the manner in which public pensions have contributed to NYC’s fiscal crisis, I think he is right on here.  From a more technical ERISA standpoint, I wrote on the Ninth Circuit opinion back in October:

I am now persuaded that the 9th Circuit’s ruling [in Golden Gate] is consistent with the Travelers precedent from 1995 that unless a law is historically a matter of local concern, there should be a presumption against finding ERISA preemption. It seems to me that courts have read ERISA incorrectly in this regard in past cases.

My epiphany came in writing my new paper on the intersectionality of ERISA preemption and remedial provisions.  In order for many plaintiffs not to be deprived of the remedy that they deserve, the preemption provision must be strictly construed according to the language in Travelers.  This reading will ensure that defendant employers are not able to inappropriately use ERISA as a shield against meaningful health care reform or appropriate types of relief in ERISA cases.

Rick argues for a more limited ERISA preemption doctrine based on federalism principles, and I argue for the same limited doctrine based on the employee-oriented, remedial nature of the statute, but we come out in the same place.  I am with Rick in that I hope the en banc Ninth Circuit understands the compelling arguments that abound to allow local municipalities to democratically decide what responsibilities employers in their jurisdictions have for providing their employees with health care benefits.

My thought is that if we allow federalism to flourish in this context, many jurisdictions will force Congress’s hands to reconsider how to protect benefits for employees under ERISA.

Because they are smaller in size, local governments are more capable of being responsive to the needs of their respective communities because they are more in touch with their constituents.  This leads, in theory, to more responsive and representative policy-making as local government officials make decisions informed by the community’s wants and needs.

In light of these considerations, Matt argues against the tendency of some courts to squelch local initiatives through narrow constructions of home rule powers and liberal invocations of the implied preemption doctrine.

All of this connects nicely to the recent, lively discussion on this Blog of Milwaukee’s ballot initiative mandating paid sick leave for employees.  I take it that Matt would be skeptical of arguments that the Milwaukee law is preempted by state and federal law — at the least, his analysis would suggest some good reasons why a court ought to be slow to find preemption. 

Matt’s article also reminds me of the argument of Dan Kahan and Tracey Meares (which I blogged about here) that federal constitutional limitations should be relaxed so as to permit more creative responses to crime at the local level.  Kahan and Meares are careful to note that their position is premised on the capacity of minority communities — which are the communities most directly affected by crime and policing – to participate effectively in local-level policymaking.  Their concerns regarding the political power (or lack thereof) of affected communities might give one pause regarding recent anti-immigrant initiatives at the local level (which I do not see Matt to be embracing as a model).

For myself, I am quite sympathetic to the localist project.  For instance, I have advocated for more local control over the way the war on drugs is waged (57 Vand. L. Rev. 783).  Thus, I think it is unfortunate that the federal government has attempted to stamp out locally approved and regulated medical marijuana distribution operations in California.  But I also think (in the spirit of Kahan & Meares) that cities that want to be more aggressive about drug enforcement — more checkpoints, drug tests, sniffer dogs, etc. — should have ample room to implement their policy preferences.  (I may not want to live in such a city myself, but that is another matter.)  Likewise, although I did not support the Milwaukee sick leave initiative on the merits, my preference for local autonomy and experimentation leaves me hoping that the courts will provide an opportunity for the initiative to prove its worth.

The Seventh Circuit nonetheless affirmed, determining that, even had the omitted information been included, there would still have been a sufficient showing of probable cause to support issuance of the search warrant.  Lurking in the background of the case, of course, is a legitimate concern about jilted lovers lying to cops about criminal activity in order to harrass their former significant others.  But it seems to me that the police have every incentive to screen these messy cases out of the system as quickly as possible, and little reason (in this context) to withhold key information bearing on credibility when seeking a search warrant.  In any event, the particularities of the Robinson case were such that the withheld information did not seem especially important (e.g., the cop’s affidavit did disclose the existence of another pending criminal charge against Evans).

Although the Seventh Circuit’s resolution of the Fourth Amendment issue seems perfectly reasonable, I find the prosecution of the case a bit troubling.  Robinson nicely illustrates how the combination of an expansively defined federal crime (felon in possession) and a cozy relationship between local police and federal prosecutors can result in the conversion of a routine domestic disturbance into a federal conviction, which typically entails a much longer sentence than a state conviction.  (These cases are especially troubling when they trigger the fifteen-year mandatory minimum of the Armed Career Criminal Act, which does not seem to have been applied to Robinson.)  Once upon a time, there were clearer lines demarcating what were federal cases (typically white-collar stuff, organized crime, and crime with a real interstate or international component to it) and what were state cases (typically public disorder offenses, violent crime, and routine property offenses).  As is indicated by the phrase, “Don’t make a federal case out of it,” there was a sense that federal prosecution was reserved for only the most serious offenses.  As we have gotten away from this tradition and entered an era of far more complex federal-state law enforcement relationships — a trend I have explored in some of my scholarship — I fear there have been significant costs in terms of public accountability and perceptions of arbitrariness.

This is the second in what will be an ongoing series of weekend posts reviewing new Seventh Circuit opinions in criminal cases.

These short papers touch on an important, longstanding debate in federalism theory: whether each field of social regulation ought to be handled exclusively at a particular level of government (federal, state, or local), or whether shared responsibilities ought to be the norm.  The exclusivity model was dominant through much of this nation’s history, but was almost entirely supplanted in the middle decades of the last century by a cooperative federalism model.  As someone who worries a lot about transparency and accountability in government, I confess to some unease about the opaque, complex federal-state-local arrangements that now predominate in nearly every major field of public policy (environmental protection, crime, health care, education, housing, transportation, etc.).  On the other hand, if the mechanisms of democratic accountability do not operate well, the exclusivity model can lend itself to agency capture, bureaucratic inertia, and regulatory stagnation–which is (I take it) how Paul would characterize the present state of federal labor and employment law.