The once and future challenges of American federalism: The tug of war within

Abstract

This essay is drawn from a lecture for the Ways of Federalism conference (University of the Basque Country, October 19, 2011) and a forthcoming book, Federalism and the Tug of War Within (Oxford, 2012), which explores how constitutional interpreters struggle to reconcile the core tensions within American federalism. The essay reviews the current challenges of the American federal system through the theoretical lens developed in the book, focusing on the role of state-federal bargaining within the U.S. federal system. Federalism and the Tug of War Within traces American federalism's internal struggle through history and into the present, analyzing the Rehnquist Court and Tea Party's embrace of greater jurisdictional separation, the limits of New Federalism and Cooperative Federalism approaches, and the growing disjuncture between federalism theory and practice in the United States. In response to the ongoing challenges for American federalism posed by constitutional design, the book outlines a theory of Balanced Federalism, which mediates the core tensions of American federalism on three separate planes: (1) fostering balance among the competing federalism values, (2) leveraging the functional capacities of all three branches of government in interpreting federalism, and (3) maximizing the wisdom of both state and federal actors in so doing. The essay introduces the book's overarching themes and explores how well-crafted intergovernmental bargaining provides means of navigating these core tensions.