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Depoliticizing Federalism

By Louis Michael Seidman

Abstract

In his great biography of President Andrew Jackson, Arthur Schlesinger, Jr. celebrated Jackson’s defense of the rights of states and opposition to federal power. Yet as a mid-twentieth century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states’ rights. Was Schlesinger’s position inconsistent? He did not think so, and neither does the author. In Jackson’s time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine for redistribution and racial justice. States’ rights rhetoric served the interests of segregationists and reactionaries. Schlesinger’s example poses an important challenge for those who want to generalize and depoliticize the argument about federal versus state power. The argument about federalism is, or at least should be, deeply contextual, and it is political to the core. In different times and places, federalism has differing relationships with substantive justice and, in all times and all places, people disagree about what counts as substantive justice. What we should be doing, therefore, is talking about our disagreements about substantive justice—about the appropriate role of markets and government, about redistribution and property rights, and about our obligations to the poor and individual freedom—instead of changing the subject to talk about federalism

Topics: Constitution, states\u27 rights, decentralization, federalism, state government, federal government, Constitutional Law, Law and Politics
Publisher: Scholarship @ GEORGETOWN LAW
Year: 2012
OAI identifier: oai:scholarship.law.georgetown.edu:facpub-1884
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