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12. Federalism(s)’ Forms and Norms: Contesting Rights, De-essentializing Jurisdictional Divides, and Temporizing Accommodations
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363 12 FEDERALISM(S)’ FORMS AND NORMS: CONTESTING RIGHTS, DE-ESSENTIALIZING JURISDICTIONAL DIVIDES, AND TEMPORIZING ACCOMMODATIONS JUDITH RESNIK 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 matter authority flows either to the central government or to its subunits, I argue that the domains of authority are not fixed but renegotiated as conflicts emerge about the import of rights and the content of jurisdictional allocations. Federalisms regularly create mediating mechanisms, including what I term “discounts”— temporizing accommodations in which either the rights claimed or the subunit’s identity is given less than full weight. What costs or benefits those accommodations impose depends on future events, such as providing a wider berth for rights’ dilution or a subunit’s willingness to provide protections it initially rejected. Moreover, the relevant actors in federalism are more than the state and its subunits. Translocal organizations of government actors (TOGAs) have created a web of connections that require 364 Judith Resnik enlarging the focus beyond grids of horizontal and vertical authority to capture the diverse arenas generating and homogenizing policies. Once the “who” of federalism is no longer limited to the federal government and its subunits, the federalist virtues of voice, exit, autonomy, and diversity become more difficult to realize. Further , once jurisdictional powers are understood not to be essentially fixed, and discounts are acknowledged as undervaluing some rights or subunit identity in an effort to moderate conflicts, the importance of social and political movements comes to the fore in shaping the boundaries of permissible accommodations and the doctrines that result. 1. Federalism(s)’ Attractions Why is federalism interesting, and why especially so in the first decades of the twenty-first century? Federalism is attractive because it offers an analytic and a history of practices demonstrating the capacity to sustain toleration within polities of plural legal norms. The effort to respect variations while adhering to certain specified legal obligations is increasingly familiar as a burgeoning number of multilevel and transnational institutions aim to mediate differences while developing shared commitments. Federalism’s appeal is enhanced because it is normatively liberal in one sense: federalism is predicated on the propositions that more than one legal regime is permissible, that individuals have multiple political affiliations and layered citizenship identities, and that sources of law are plural. Given contemporary as well as historical examples of political regimes seeking to exercise totalizing power, federalism’s innovative toleration of legal pluralism—that can reconfigure and diffuse sovereign powers—deserves (once again) admiration.1 Appreciation of federalism’s pluralism ought not, however, be translated into complacency that federalism is a mechanism that will result in the production of other norms central to liberalism , such as equality, dignity, and fair treatment of all persons. The consequences of federalism’s toleration—and sometimes its celebration—of differences through the endowment of authority to various political sectors (be they states, provinces, länders, cities, indigenous nations, or linguistic or other minorities) does [54.226.222.183] Project MUSE (2024-03-19 11:28 GMT) Federalism(s)’ Forms and Norms 365 not, intrinsically, produce liberal commitments or preclude illiberal outcomes.2 The obvious example from the United States is slavery,3 but the point is neither dated nor particularistic. Countries with a wide range of political commitments fall under the category of federalism .4 Within those counted as democratic, subunit autonomy has been used to obtain permission to underprotect or differently define rights.5 In the multilevel government of Europe, for example, Member States argue that their judgments ought to be accorded a “margin of appreciation;” when detaining individuals alleged to be threats to national security; when mandating that crucifixes be displayed in classrooms; when prohibiting access to abortions; and when precluding prisoners from voting. In the United States, federalism values have been advanced in support of bans on same-sex marriages, gun regulation, and the use of “foreign” law in court judgments. (Subunits have likewise invoked federalism for the opposite ends, when seeking to expand forms of marriage, to limit gun ownership, and to welcome law from abroad.)6 In short, subunits can generate distinctive policies that run across the political gamut and have imposed subordinated statuses that endure, absent social and political efforts garnering sufficient power to undo them. Federalism’s plural legal sources generate another feature— conflict. The authorization of...