FEDERALISM AND RIGHTS by Ellis Katz and G. Alan Tarr (Editors). Lanham, Maryland: Rowman & Littlefield Publishers Inc., 1996. 208 pp.

Reviewed by Amy L. Toro, Jurisprudence and Social Policy Program, University of California, Berkeley.
 

Federalism was born in the eighteenth century, a legitimate child of modern democracy. In its adolescence, it ran with the wrong crowd. Its reputation as a co-conspirator in the perpetuation of slavery and the denial of basic civil rights to nonwhite Americans kept federalism out of proper "rights" circles. Given its illustrious credentials, however, the time has come to return federalism to its proper position as a protector of rights. This is the message (with some exceptions) conveyed by Federalism and Rights, a collection of scholarly essays edited by Ellis Katz and G. Alan Tarr.

Professors Tarr and Katz ask in their introduction "Does federalism promote or undermine rights?" (ix). An important question in light of current experiments in federalism around the world, its answer remains illusive. Yet this collection of essays, written by professors and judges from the United States, Europe and Canada, seeks to answer the question from theoretical, historical and doctrinal angles and provides many insights certainly worthy of further exploration. The reader quickly learns that questions of federalism cannot be answered without also addressing questions about the nature of democracy and self-governance, the origins of rights, the role for group rights and more.

The collection begins with essays by two prominent scholars in the field, A.E. Dick Howard and Daniel J. Elazar. Professor Howard defines federalism as "not simply formal federalism, but a cluster of related values--federalism, localism, pluralism, [and] diversity" (11)--and then provides an excellent short review (invaluable to anyone unfamiliar with the topic) of the pluses and minuses of federalism that covers a range of topics from the value of civil participation to "[t]he tyranny of small places." He concludes that despite the "dark chapters" (25) of federalism, one "might draw an idea or two from American federalism." (26)

Professor Elazar defines federalism as "more than simply intergovernmental relations" and more than "the linking of constituent entities into larger wholes to maintain both self-rule and shared-rule." (2) Rather it is "partnership and power sharing on a non-centralized basis through discussion and deliberation" that "creates a balancing of interests, voices and diversity in such a way that there is no permanent majority, but rather all majorities are aggregates of the various minorities that express their interests." (2) Elazar uses this definition to help the reader understand how federalism stands along side the other two "most important inventions of modern democratic government . . . the protection of individual rights, and the idea of civil society." (1) Elazar asserts that with the exception of slavery and civil rights, federalism and rights "have actually complemented each other in the development of a more successful, a more democratic, a more peaceful, a more just, and a more progressive civil society." (7) But rights must be linked to obligations to preserve the public good and to provide balance among the three pillars of democracy.

Professor Gary Jacobsohn discusses universal and positivist notions of rights and how these different conceptions influence our views of federalism, providing a very helpful discussion of this issue as debated by contemporary luminaries from Ronald Dworkin to Robert Bork. If "rootedness of community" is "surely one of the most treasured values secured by federalism," Jacobsohn asks whether ascriptive representation would be an appropriate modern substitute for the geographic representation of federalism and answers "no." It would reflect "a wholly different conception of rights," because although the framers were "defining distinct communities with distinct interests," they did so in a way that "the nature of the interests were such that the people’s rights were not linked to their deepest primordial attachments." (47) A move to ascriptive representation would create "an unfriendly constitutional environment for the enhancement of those deliberative processes that distinguish the rights of democratic citizenship." (48)

If federalism and rights are as compatible as the essays above suggest, then why do we (meaning most 20th century Americans) think they aren’t? Professor Jean Yarbrough explains that both the Federalists and Anti-Federalists had similar conceptions of rights, but disagreed about the threat to those rights, with the Federalists fearing local oppression and the Anti-Federalists fearing centralized oppression. What distinguishes them from us is our inattention to what were their central concerns: "the distribution of political power, the meaning of limited government, and how the right of self-government could best be secured." (58) These questions, which clearly have implications for rights and liberties, are given "short shrift today." (58)

Professor Michael Zuckert reminds us that natural rights philosophy was a prerequisite to modern federalism. Then, through his analysis of American history and the ideas of Madison, Hamilton, Field and Bingham, he concludes that different versions of federalism are more compatible with rights than others. Neither dual federalism nor a unitary system promotes rights. In contrast, the model of "corrective federalism," a system that would provide a national check on state laws, would also provide both protection of rights and the benefits of federalism.

Judge Lenaerts discusses how the European Community developed basic building blocks of federalism, such as the relationship between Community law and national courts that enforce it and ensuring uniformity of application across nations. In particular, he points to the creation and recognition of private rights under the Community treaties and legislation against the individual national governments as a critical part of creating a system of federalism. Lenaerts notes, however, the other side of the coin--that people may be derived of rights held under national law in order to achieve the market integration goal of the EEC. The realities of the European Community require that rights may need to be balanced or harmonized as the federal structure takes hold.

Professor Irwin Colter’s description of Canada’s balance between federalism and rights bears some resemblance to the balancing noted by Judge Lenaerts. Colter takes Canada’s 1982 Charter of Rights and Freedoms as his centerpiece. He concludes that prior to 1982 "[t]he best protection" of rights "came from the dialects of legal federalism." Whenever a statute (usually a provincial law) violated civil liberties such that it particularly offended judicial sensibilities," (180) the courts would use federalism as a tool for striking down the law. For the period after the Charter, Colter finds that the relationship between the new written bill of rights and federalism has been largely contingent on the politics and culture of Canada. He also focuses on the defeat of the Charlottetown Accord at the polls, a provision designed "‘to bring Quebec back into the constitutional process with honour and enthusiasm.’" (186)

The two remaining essays draw their inspiration from Justice Brennan’s notion of independent state grounds. Georgia Judge Dorothy Todd Beasley provides a positive spin in the context of privacy rights. She examines the interplay of state and federal interpretations of the right to privacy, suggesting that we pay attention to what goes on at the state level because that is where dynamic constitutional interpretation is taking place. While the U.S. Constitution provides an "inner zone" of rights, the action in the rights field is "on the edges." Former ABA President Talbot D’Alemberte is sympathetic in theory but skeptical about how well the state courts can do as protectors of rights in light of the majoritarian influences over state courts and problems of corruption and incompetence at the state court level.

The editors have made a laudable effort to tie these diverse and interesting essays together, yet the reader is not left with a truly coherent picture. At one level, we all know what "federalism" is. Yet each author has his or her subtle and particular meaning for federalism, sometimes explicit (e.g. Professor Howard’s and Professor Elazar’s) and sometimes implicit. This problem is particularly acute when we are talking not just about U.S. federalism but about federalisms around the world. A similar problem emerges with respect to "rights," which these essays together describe as the right of self-governance, traditional negative rights, the right of privacy, statutory rights and more. Thus, although in theory answering the same question, the authors sometimes appear to be talking about different things. Nonetheless, if the reader treads carefully with attention to explicit and implicit definitions, he or she will find the reading experience a rich and more rewarding one. After all, the choice of definitions itself is interesting and challenging work.

Finally, a word for the future? The essays as a whole make clear that a verdict in favor of federalism and its relationship to rights means that federalism’s relationship to slavery and civil rights for African-Americans is an exception. If so, the question then becomes "why the exception?" An answer to this question would clearly enrich a theory of federalism and rights, and thereby prevent federalism from being deemed guilty by association. In addition, the presence of this "exception" begs the question of how we should choose between federalism and rights in those situations where they do conflict. Perhaps these are tasks that these authors (or others) would be interested in taking on.