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15 2 Competitive Federalism under Pressure One can hardly imagine how much [the] division of sovereignty contributes to the well-being of each of the States which compose the Union. In these small communities . . . all public authority . . . [is] turned towards internal improvements. . . . [T]he ambition of power yields to the less refined and less dangerous desire for well-being. —Alexis de Tocqueville1 It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. —Justice Louis Brandeis2 It is, of course, no longer politically correct to characterize anything American as exceptional. In days gone by, however, descendants of the Pilgrim faithful spoke easily of their country as a “city upon a hill,” a “New Jerusalem”3 whose hallowed light shone as a beacon for all nations to see. It was not difficult for nineteenth-century Americans to imagine that the nation was destined to spread from “sea to shining sea.” Even in the mid-twentieth century, school children learned to sing of a “sweet land of liberty” made beautiful by its paul e. peterson and daniel j. nadler This chapter is based on a paper prepared for “Understanding Education in the United States: Its Legal and Social Implications,” a symposium held at the University of Chicago Law School on June 17 and 18, 2011. The authors would like to thank Romain Zamour, Yale Law School, JD Class of 2013, for his research assistance. 02-0487-4 chap2.indd 15 10/7/13 8:38 PM 16 Paul E. Peterson and Daniel J. Nadler “purple mountain majesties,”“spacious skies,”and“amber waves of grain.”Most felt that the United States had been called to end—or at least contain—tyrannies of unimaginable villainy in Nazi Germany, the Soviet Union, and Maoist China.4 When Americans looked at their nation, they saw an exceptional land upon which God had shed his grace. In the aftermath of World War II, university scholars joined in writing a secularized version of the hymn.5 They marveled at a pluralist America that was able to hold its political leadership accountable while avoiding mass uprisings that could translate into totalitarian tyranny.6 Such talk now seems antiquated, even self-indulgent. For many today, the United States is better understood as just another society at the advanced stage of capitalism.7 American and European problems and politics are converging. If any country is exceptional, it is China, or one of the four Asian Tigers, or perhaps India or Brazil. To state the situation in the most undeniable terms: Every country is exceptional. Each has its own distinct geographical location, origin, history, social composition, and political institutions. The United States is no more exceptional than Canada, or Mexico, or what have you. The Exceptional American Federalist System Regardless of the new egalitarianism, the U.S. federal system, with its unique division of authority between the national and the state governments, is worth treating as exceptional. According to a recent count, only 25 of the world’s 193 countries have federal systems,8 and most of those 25 countries circumscribe the authority exercised by lower tiers of government in important ways. In some, the heads of lower levels of government hold office at the pleasure of the central government.9 In others, the lower tiers are heavily dependent on the central government for revenue.10 In all federal systems among the industrialized countries of the world, except Canada and Switzerland, state debts are implicitly or explicitly guaranteed by the central government.11 The design of the U.S. federal system owes as much or more to historical circumstances as to explicit theories of governmental organization. When writing the Constitution, those gathered in Philadelphia necessarily allowed for autonomous action by state governments for the very practical reason that no other form of government could have won ratification by the supermajority of states required before the founding document could take effect. Unless the national government’s powers were limited and states continued to exercise considerable power of their own, the citizenry, fonder of their former colonial governments than of the new national entity, would not have agreed to the important limits that the Constitution did impose on the states, such as restrictions on 02-0487-4 chap2.indd 16 10/7/13 8:38 PM [3.138.69.45] Project MUSE (2024-04-19...

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