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Federalism and Subsidiarity

NOMOS LV

James E. Fleming

Publication Year: 2014

In Federalism and Subsidiarity, a distinguished interdisciplinary group of scholars in political science, law, and philosophy address the application and interaction of the concept of federalism within law and government. What are the best justifications for and conceptions of federalism? What are the most useful criteria for deciding what powers should be allocated to national governments and what powers reserved to state or provincial governments? What are the implications of the principle of subsidiarity for such questions? What should be the constitutional standing of cities in federations? Do we need to “remap” federalism to reckon with the emergence of translocal and transnational organizations with porous boundaries that are not reflected in traditional jurisdictional conceptions? Examining these questions and more, this latest installation in the NOMOS series sheds new light on the allocation of power within federations.

Published by: NYU Press

Title Page, Copyright

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pp. i-vi

Contents

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pp. vii-viii

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Preface

James E. Fleming, Jacob T. Levy

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pp. ix-x

This volume of NOMOS—the fifty-fifth in the series—emerged from papers and commentaries given at the annual meeting of the American Society for Political and Legal Philosophy (ASPLP) in Seattle on September 3–4, 2011, held in conjunction...

Contributors

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pp. xi-xii

PART I. FEDERALISM, POSITIVE BENEFITS, AND NEGATIVE LIBERTIES

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1. Defending Dual Federalism: A Self-Defeating Act

SOTIRIOS A. BARBER

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pp. 3-21

Dual federalism is a doctrine of American constitutional law. Defending dual federalism is a self-defeating act because of what dual federalism is and what it means to defend it. Dual federalism is states’ rights federalism. It holds that when national...

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2. Defending Dual Federalism: A Bad Idea, but Not Self-Defeating

MICHAEL BLAKE

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pp. 22-33

There are many ways to call a position mistaken. The most common is to say that the position shouldn’t be held: the reasons given for that position are inadequate, perhaps, or the consequences of that position are bad. It’s more powerful to say that...

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3. The Puzzling Persistence of Dual Federalism

ERNEST A. YOUNG

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pp. 34-82

It may seem strange that, more than sixty years after Edward Corwin famously lamented “The Passing of Dual Federalism,”1 this essay is part of a panel organized under the title “Against Dual Federalism.” Accusations that the Court was trying...

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4. Foot Voting, Federalism, and Political Freedom

ILYA SOMIN

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pp. 83-119

The idea of “voting with your feet” has been an important element in debates over federalism for several decades.1 Economists, legal scholars, and others have analyzed its efficiency and equity. But foot voting is still underrated as a tool for enhancing political...

PART II. CONSTITUTIONS, FEDERALISM, AND SUBSIDIARITY

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5. Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law

STEVEN G. CALABRESI, LUCY D. BICKFORD

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pp. 123-189

We live in an Age of Federalism.1 Of the G-20 countries with the most important economies in the world, at least twelve have federal constitutional structures and several others are experimenting with federalism and the devolution of power. The first group...

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6. Subsidiarity, the Judicial Role, and the Warren Court’s Contribution to the Revival of State Government

VICKI C. JACKSON

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pp. 190-213

Professor Steven Calabresi and Lucy Bickford have suggested that the concept of subsidiarity, an explicit aspect of the quasi-federal system in the European Union, is already inherent in the U.S. constitutional system; that it serves several distinct goals...

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7. Competing Conceptions of Subsidiarity

ANDREAS FØLLESDAL

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pp. 214-230

A principle of subsidiarity has gained prominence in law and politics as well as in legal and political theory, on topics ranging from U.S. constitutional interpretation and European integration to the constitutionalization of international law. Its...

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8. Subsidiarity and Robustness: Building the Adaptive Efficiency of Federal Systems

JENNA BEDNAR

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pp. 231-256

Subsidiarity—a systemic predilection for locating authority at the most local level feasible—has long been admired for its ability to protect localized, diverse interests from the tyranny of a national majority. In this chapter, I suggest a novel benefit of...

PART III. THE ENTRENCHMENT OF LOCAL AND PROVINCIAL AUTONOMY, INTEGRITY, AND PARTICIPATION

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9. Cities and Federalism

DANIEL WEINSTOCK

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pp. 259-290

In most countries, cities are constitutional nonentities.1 That is, they exist at the pleasure of political entities that do have constitutional standing, be they substate entities like provinces, länder, or U.S. states, or sovereign states. Their boundaries can be redrawn...

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10. Cities, Subsidiarity, and Federalism

LOREN KING

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pp. 291-331

My aim here is to use the city as an analytic category, a lens through which to examine the principle of subsidiarity and the justification of federalism. I will argue that two powerful justifications for subsidiarity seem as if they should be mutually supporting...

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11. The Constitutional Entrenchment of Federalism

JACOB T. LEVY

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pp. 332-360

One of the most striking developments in the past ten years of constitutional theory has been the partial or wholesale critique of judicial review among those traditionally identifi ed as “legal liberals” or “liberal legalists.” In its moderate versions, this critique...

PART IV. REMAPPING FEDERALISM(S)

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12. Federalism(s)’ Forms and Norms: Contesting Rights, De-essentializing Jurisdictional Divides, and Temporizing Accommodations

JUDITH RESNIK

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pp. 363-435

My interest is in the sources of identity and norms in federations and the methods for mediating conflicts. In contrast to many accounts of federalism, which assume the stability of the political units that constitute a federation and which posit that subject...

Index

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pp. 437-447


E-ISBN-13: 9781479821303
E-ISBN-10: 1479821306
Print-ISBN-13: 9781479868858
Print-ISBN-10: 147986885X

Page Count: 464
Publication Year: 2014

Research Areas

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Subject Headings

  • Federal government -- United States.
  • Local government -- United States.
  • Subsidiarity -- United States.
  • Competent authority -- United States.
  • Central-local government relations -- United States.
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