Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s)

Abstract

Normative conflict is a fixture of federalism, shaping affiliations by law and constitutionally committed to legal pluralism. And, despite the frequently found pre-commitments to structural allocations of authority, power is regularly renegotiated in federations. To do so, mediating mechanisms are required. In this essay, I analyze two methods – essentializing allocations of authority and discounting either individual rights or identities of subunits – that courts in the United States and Europe have developed as they render decisions in the name of federalism. Essentialist claims link particular domains of activity to levels of governance, and justify decisions by assuming the naturalism and singularity of authority. Federalism discounts are exemplified here through analyses by the United States Supreme Court about whether state judges are unreasonably wrong when adjudicating rights of criminal defendants, and through examining decisions of the European Court of Human Rights when invoking the margin of appreciation. Discounts either under-enforce a particular right in deference to a subunit’s claim of authority and identity or insist on overriding a subunit’s decision in favor of enforcement. I argue that essential claims about the power of either the subunits or the larger entity obscure the agency of judges when making choices about how to characterize activities that determine the flow of power. In contrast, when providing federalism discounts, judges have to explain how and why the center, the subunit, or individuals bear the costs or reap the benefits of variations in rights protection. And, if such discounts are provisional, they have the potential to serve federalism(s)’ goals of accommodating plural legal sources by recognizing ongoing disagreements and the need for iterative exchanges about the scope of rights and the facets that bind the identity of both subunits and centers.