Federalism and Subsidiarity: NOMOS LV

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

123 5 FEDERALISM AND SUBSIDIARITY: PERSPECTIVES FROM U.S. CONSTITUTIONAL LAW STEVEN G. CALABRESI AND LUCY D. BICKFORD 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 includes the United States, the European Union, India, Germany, Brazil, Argentina, Canada, Indonesia, Australia, Russia, Mexico, and South Africa. The latter group includes the United Kingdom, Spain, Belgium, Italy, and Japan. Of the ten countries with the highest GDPs in the world, only two—China and France—lack any semblance of a federal structure. Of the world’s ten most populous countries, eight have federal or devolutionary structures—every country except for China and Bangladesh. The only top ten countries by territorial size to lack a federal structure are China and Sudan, which recently experienced a secession. Though the United States invented constitutional federalism only 220 years ago, today it has taken the world by storm. Every major country in the world has some federal structure except China and France (a European Union [EU] member). Nationstates worldwide are under pressure to surrender power both to 124 Steven G. Calabresi and Lucy D. Bickford growing international entities such as the EU, NAFTA, GATT, and NATO, and to regional entities as well. Thus, the EU’s twentyseven member countries have all surrendered significant powers over trade, commerce, and their economies to the confederal EU government. At the same time, these countries have faced growing pressure to devolve power to their national subunits. Most evidently, the United Kingdom has devolved power to Scotland, Wales, and Northern Ireland, and Spain has devolved power to Catalonia and the Basque region. Even tiny Belgium has devolved most of its power to ethnic subunits in Flanders, Wallonia, and Brussels. Federalism limits meanwhile remain very constraining in such European countries as Germany and Switzerland. In North America, Canada has surrendered some economic power to NAFTA—a transnational free trade association—while surrendering other powers to the increasingly assertive province of Quebec . It is not an exaggeration to say that our time is witness to the decline and fall of nation-states as they dissolve from above and from below. The United States has seen a revival of interest in federal limits on national power since the U.S. Supreme Court’s 1995 decision in United States v. Lopez.2 Beginning in the 1990s, the Rehnquist Court limited national power in a series of important federalism cases: mandatory retirement age for state court judges,3 compelling state participation in a federal radioactive waste program,4 compelling state officers to execute federal gun control laws,5 federal protection of religious freedoms,6 and federal protection for women against violence.7 A major issue on the U.S. Supreme Court’s recent agenda was whether President Obama and Congress exceeded the scope of national power with a national plan that forces otherwise uninsured individuals to buy health insurance .8 Constitutional federalism is more vibrant in the United States than at any time since the New Deal. This Age of Federalism marks the end of an experiment with nationalism that began with the French Revolution’s rejection of provincial power and endorsement of hypercentralization. This nationalism experiment gathered steam with Italian and German unification in the nineteenth century and with the carving up of the Austro-Hungarian and Turkish Empires after World War I into dozens of newly independent nation-states. The last gasp of Federalism and Subsidiarity 125 nationalism, in retrospect, came when many African and Asian countries that had once been Britain’s and France’s colonial subjects declared independence. In the 1950s and 1960s, postcolonial nations formed new transnational confederal entities to perform the defense and free trade functions that had once been performed by the European empires. Ultimately the G-20, NATO, the EU, NAFTA, and GATT fulfilled those needs. Fundamentally, the Age of Federalism responds to one of the most urgent questions of democratic theory: What is the proper size of a democracy? It is all well and good to believe the people ought to rule themselves, but at which demos or territorial unit of the people?9 Is the relevant territorial demos for a resident of Quebec City the province of Quebec, the country of Canada, the whole area covered by NAFTA, or...