Competing for the People's Affection: Federalism's Forgotten Marketplace

The United States Supreme Court has begun to reshape the architecture of federalism in a variety of controversial ways but has failed to reveal much about the blueprint with which it is working. In the eyes of many critics, the Court's recent rulings regarding the Commerce Clause, commandeering, and the states' sovereign immunity are united only by an ideological desire to strip power from the federal government and confer upon the states a hazy aura of dignity. This Article contends that the Court is edging closer to a promising theory of federalism than either the Court or its critics seem to realize. Returning to forgotten themes in the Federalist Papers, the Article argues that the state and federal governments compete with one another for the affection of their citizens and for the regulatory power that often accompanies that affection. The Article further contends that citizens and politicians are able fully to participate in this affection-driven marketplace only if three prerequisites are met: each sovereign must be assured of an opportunity to demonstrate its competence; each sovereign must enjoy a significant measure of autonomy from the other; and the two sovereigns' dealings with one another must be sufficiently transparent to enable citizens to allocate praise and blame in an accurate fashion. The Article then argues that, although the Court has not characterized its federalism rulings in this way, and although one may question whether the judiciary is ultimately competent to play an ongoing, prominent role in preserving the marketplace's vitality, the Court appears determined to ensure that these three market requirements are satisfied. The Article concludes by urging courts and scholars to consider the ways in which the marketplace's health may best be preserved and the ways in which a broad range of legal doctrines and lawmaking practices frustrate or advance federalism's forgotten objective of competition between the two sovereigns. I. INTRODUCTION In recent years, the United States Supreme Court frequently has invoked federalism principles when reviewing federal legislation1 but has failed to articulate an overarching vision of federal-state relations.2 The Court has relied instead on seemingly disparate premises, including a local-national distinction that some believe is disingenuous,3 notions of commandeering and political accountability that some believe are poorly rationalized,4 and a conception of state dignity that critics charge is ill suited for a nation in which the people are sovereign.5 The Court does occasionally recite IMAGE FORMULA11 the perceived benefits of federalism, but those benefits are framed at such a high level of abstraction that they provide little guidance as to the manner (if any) in which the Constitution requires that regulatory power be distributed between the state and federal governments.6 Even those benefits themselves have been challenged, with numerous scholars arguing that much of what judges and politicians say about federalism is merely politics-driven rhetoric.7 Courts and politicians alike, however, need a strong normative sense of how our federal system of government ought to function. For courts in particular, a robust theory of federalism is not a mere luxury. When a litigant asks a court to strike down or uphold legislation on federalism grounds, the court almost invariably is confronted with vague constitutional texts, histories that are subject to conflicting interpretations, and precedents that point in more than one direction. To a significant extent, therefore, the court's ruling will be shaped by its own understanding of both federalism and the judiciary's role in preserving it. What should that understanding be? In their quest to comprehend federalism, jurists have devoted considerable attention to the benefits that may be achieved when state and local governments compete with one another for a mobile citizenry. …