Steven G. Calabresi, December 1995; MICHIGAN LAW REVIEW, "A government of limited and enumerated powers," EE2001-hxm P.

a. Federalism as a Response to the Problem of Majority Tyranny. First, federalism is popular today because in a surprisingly large number of circumstances it has the potential to offer a direct cure to a central and age-old failing of democracy: the tendency of certain kinds of political majorities to tyrannize and abuse certain kinds of political minorities.(30) This problem -- majority tyranny -- is a problem in all democracies, but it is most acute in democracies that are very heterogeneous as a matter of their racial, ethnic, religious, linguistic, or social class background. It is the problem that concerned James Madison in the Federalist Ten,(31) and it is the problem that has generated support in this country and around the world for judicial review.

Arend Lijphart, a distinguished and leading political scientist, puts the matter as follows:

That it is difficult to achieve and maintain stable democratic government in a plural society is a well-established proposition in political science -- with a history reaching back to Aristotle's adage that "a state aims at being, as far as it can be, a society composed of equals and peers." Social homogeneity and political consensus are regarded as prerequisites for, or factors strongly conducive to, stable democracy. Conversely, the deep social divisions and political differences within plural societies are held responsible for instability and breakdown in democracies.(32)


Steven G. Calabresi, December 1995; MICHIGAN LAW REVIEW, "A government of limited and enumerated powers," EE2001-hxm P.

As Lijphart emphasizes, social heterogeneity can pose a big threat to stable democratic government. Federalism sometimes can reduce this threat by giving minorities a level of government within which they are the geographical majority. If minorities are concentrated geographically to some degree and if the nation is willing to cede control over key issues to constitutionally established subunits of the nation, then federalism can help maintain social peace.

Obviously there are some very big "ifs" here that cannot always be satisfied. But, in a very important and growing category of cases, voters are discovering that they can solve the problem of majority tyranny simply by redrawing the jurisdictional lines of government. This redrawing can take two forms. Sometimes expanding the size of the polity is enough to make a formerly tyrannical majority only one of many minorities in the new, more "international" federal jurisdiction. This solution is the familiar pluralist" solution of Federalist Ten.(33) Other times, the redrawing involves a devolution of national power over a certain set of emotionally charged and sensitive issues down to a regional or local federalist entity. This solution is the one employed by Spain with Catalonia and the Basque Country and by Canada with Quebec.(34)


Steven G. Calabresi, December 1995; MICHIGAN LAW REVIEW, "A government of limited and enumerated powers," EE2001-hxm P.

Federalism clearly is not the only constitutional mechanism for dealing with majority tyranny in a socially heterogeneous polity. Other mechanisms for dealing with this problem include: judicial review, separation of powers with checks and balances, proportional representation, the creation of collegial cabinet-style executives, and the complex interlocking web of practices that Arend Lijphart calls "consociational democracy."(37) But federalism is a uniquely successful constitutional device for dealing with many of the most heartfelt and divisive problems of social heterogeneity.

No one thinks the Bosnian Serbs, the Basques, or the Quebecois ever could be appeased and satisfied by firmer guarantees of judicial review, separation of powers, proportional representation, or cabinet power sharing. Those solutions -- while they might help somewhat at the margins -- really do not get at the heart of their distinctive grievances. The problem that agitates the Bosnian Serbs, the Basques, or the Quebecois is that, in important ways and as to questions that are fundamental to their identity, they do not believe that they should be part of the same demos as their fellow countrymen. At the same time, as to other economic and foreign policy issues, they may be perfectly happy to remain within a larger entity so long as their social autonomy is guaranteed in iron-clad ways. Federalism addresses these needs in a way that no other constitutional power-sharing mechanism can hope to do.


Steven G. Calabresi, December 1995; MICHIGAN LAW REVIEW, "A government of limited and enumerated powers," EE2001-hxm P.

All of these brief sketches should suggest the powerful centrifugal and devolutionary pressures that lurk just beneath the surface of American public life. Why is it, then, that the American federation has held together so peacefully in the 130 years since 1865? First, the fortuitous division of the Union into fifty states helps enormously by accentuating many minor and some not so minor cleavages that crosscut the regional cleavage. For the disbelieving skeptic, let me just catalogue very briefly a few of these. Believe it or not: northern New England distrusts southern New England; southern New England distrusts New York; New Yorkers think they are different from Pennsylvanians; Maryland is really a border state; Virginia is deep South; Carolinians and Georgians think northern Virginia has a lot of Yankees; Florida is full of northern retirees and Cuban immigrants; Louisiana is sui generis because of the Cajun-French influence; Tennessee, Kentucky, and Arkansas are all border states; Indiana is a lot more rural and conservative than Ohio or Illinois; Michigan is conservative ethnic, while Wisconsin and Minnesota are dominated by Scandinavian and German progressives; the northern plains states differ from the central plains states; and Texas, California, Utah, Alaska, and Hawaii are all practically separate countries, while the desert southwest differs from the Rocky Mountain west, which in turn differs from the Pacific Northwest.

All these state and local cleavages crosscut the big regional cleavages, making them less visible and less dangerous. In addition, other important crosscutting cleavages exist as well: the Catholicism of the northeast dampens its secularism; the rising wealth of the South, Plains states, and Rocky Mountain West diminishes the old William Jennings Bryan era rural-urban split, as does the nationwide rise of the suburbs; and most importantly, and most sadly, severe racial tensions growing out of the legacy of slavery are a problem for all four major regions, even if those problems produce the most polarized voting only in the South.

These nationwide crosscutting cleavages make American federalism stable because they give it a Madisonian plurality of interest groups, no one of which is likely to terrorize the others on a permanent basis. American federal politics involves the assembling and maintaining of shifting and unstable coalitions of numerous groups with wildly different goals. The very instability of these continental, federal coalitions is what makes the whole thing work. No one feels permanently threatened because the combination of federalism, a separately elected Congress and President, and a very high degree of instability in political coalitions guarantees almost every faction a piece of the pie. All of this is facilitated greatly by our highly fortuitous division into fifty states, which masks over the underlying regional fault lines.


Steven G. Calabresi, December 1995; MICHIGAN LAW REVIEW, "A government of limited and enumerated powers," EE2001-hxm P.

d. Protection of Minorities. Lastly, there is the powerful argument that a large and populous national government may protect unpopular minority groups more effectively than will a small homogeneous state government.(93) This famous argument, made by James Madison in Federalist Ten, already has been thoroughly explained, so there is little more for me to say about it here.(94) Consider though, in passing, how the accuracy of Madison's predictions reinforce the truth of his arguments. Although Madison was writing about state majoritarian oppression of the rich,(95) his arguments of 200 years ago describe with pinpoint accuracy our whole subsequent history of race relations in this country from the Civil War era, to the era of legal apartheid, and right on down to the present when we find most pressure for affirmative action coming from the federal level.

The Madisonian argument for nationalism has proven true, as much as any argument from political science ever can. Indeed, it has proven so true that some reasonably question whether certain undeserving factions and minorities are too well protected at the federal level.(96) In Europe and around the world, we consistently observe international courts and quasi-legislative entities paying more attention to human rights concerns than do national courts and legislatures. The need to protect minority fundamental rights, then, constitutes an important component of the normative case for national power.


William T. Waren, Sept 1999; STATE LEGISLATURES, "Anything left to legislate about," EE2001-hxm P. 23-25

Under the Supremacy Clause of the Constitution, if a properly adopted federal law or regulation conflicts with state law, then federal trumps state. The problem is that the frequency and pace of federal preemption of state law has picked up dramatically, particularly since the mid-1990s. If the trend continues, state legislatures will find it increasingly difficult to play their traditional role.

"As a result of accumulating preemptive acts by the national government, our federal system is not working as the Framers intended," says North Carolina Representative Daniel T. Blue Jr., NCSL's immediate past president.

"Federalism respects the geographic, economic, social and political diversity of America. Local diversity is ignored when state laws are preempted and replaced with 'onesize-fits-all' national policies," Blue says.


John Kincaid, Spring 1995; Publius, "Values and value tradeoffs in federalism," EE2001-hxm P.

Federalism offers citizens multiple points of access to public power as well, and, thus, opportunities to appeal to other governments on certain matters when one is unresponsive. Multiple governments can also check and balance each other in various ways, including competition and cooperation, thereby curbing centrifugal tendencies toward anarchy and centripetal tendencies toward monopoly.(13) In addition, multiple governments provide citizens with competing sources of information and with different perspectives on public-policy issues that might not be available from political parties or the media. Where citizens can also initiate policy or vote on policy in national and/or constituent referenda, they have opportunities to affect policy directly and to register opinions that may differ from those of political elites.(14)