Federalism 3.0

Abstract

to the concrete. They don't have to talk about how a policy would work in theory. They can show how it does work in practice. Better yet, it allows advocates of change to build their movement one step a time. It is hard to jumpstart a national movement. That's why virtually every national movement began as a local one.7 Equality movements of all sorts began small and grew into something bigger. And precisely because the federal government depends so heavily on states to carry out its policies, states can exercise unexpected sway over national policymaking as well. In sum, while rights and structure have long been cast in opposition to one another, in fact rights and structure serve as interlocking gears in a disaggregated democracy: the First Amendment and federalism working in tandem to move debates forward. Debate leads to policy, which in turn provides a rallying point for still more debate. Social movements include pragmatic insiders, forging bargains from within, and principled outsiders, demanding more and better from without. The egalitarian benefits associated with decentralization are particularly salient these days because of the inherent limits of rights frameworks. A rights framework can guarantee the right to vote; it's much less helpful in raising voter turnout. Constitutional rights do a better job of combatting state-mandated school segregation than preventing the private choices that lead to residential segregation. Courts can ensure vulnerable populations have a right to counsel but they are less suited to monitoring prosecutorial discretion or police training. Our rights tradition, at least, can deter the most obvious forms of employment discrimination, but it cannot guarantee a robust minimum wage, and it's poorly suited to beating back the effects of implicit bias or structural discrimination. Many equality fights-including those to change social norms-are being waged through our policymaking apparatus rather than our Constitution. Here again, federalism and localism play an important role. National policy, after all, is a giant gear to move. As with a clock, you need movement from lots of small, interlocking gears to move a bigger one. For those committed, as I am, to a wellenforced, national equality regime, it's useful to remember that decentralization can beget centralization. Unfortunately, both sides have overlooked the democratic possibilities associated with today's federalism. Nationalists have a bad habit of conflating "Our Federalism" with our father's federalism, when state sovereignty loomed large. Given their emphasis on national politics and national norms, they have 76. For a fuller account, see Gerken, Dissenting by Deciding, supra note 70, at 1763-65. 77. This idea may even undergird Romer v. Evans, 517 U.S. 620 (1996), the first gay-rights victory at the Supreme Court. See, e.g., Nicholas S. Zeppos, The Dynamics of Democracy: Travel, Premature Predation, and the Components ofPolitical Identity, 50 VAND. L. REv. 445, 452-55 (1997). 1713 2017] CALIFORNIA LAW REVIEW trouble imagining any room for states and localities in shaping them. So, too, those in the federalism camp describe federalism in Westphalian terms, with states facilitating choice and experimentation precisely because they are enclaves from federal norms. Indeed, those in the traditional federalism camp essentially want to preserve space for states to regulate free from federal interference, which again runs one into sovereignty's most troubling features-it prevents the federal government from enforcing national norms. But when federalism is sheared of sovereignty, federalism's signature vices can become plausible virtues. States and localities don't shield people from national norms, but constitute sites for constructing those norms. And the national government can police federalism's worst excesses while taking advantage of its best features, including the benefits it offers to racial minorities and dissenters. These facts ought to change our calculation as to whether the decentralization game is worth the candle. B. The Discursive Benefits ofStructure and the Political Process Cases What would happen if we moved past Federalism 2.0? What if constitutional theory updated its operating system and acknowledged what I've called the "discursive benefits of structure"18-the many ways in which structure serves the same ends as the First and Fourteenth Amendments? At the very least, we can supply a more robust justification for a set of cases that scholars have long struggled to explain: the political process cases. 79 While academics have long accepted the rights/structure divide, the Court has occasionally muddied the distinction through what some have called the "political process" cases. The formula is virtually the same in every case. A minority group succeeds in winning an egalitarian policy at one level of governance, and the majority insists that such policies must be passed through a different (and more challenging) part of the political hierarchy. In Washington v. Seattle School District,"o for example, a school district adopted a bussing plan to combat discrimination, only to have it invalidated by a statewide initiative banning bussing. In Hunter v. Erickson, 8 1 a city council enacted a fair housing policy, only to be invalidated by an initiative requiring such policies to be approved directly by the city's voters. In recent years, we've seen similar cases play out with regard to LGBTQ equality. Romer v. Evans concerned the decision of Colorado voters to amend the Constitution to prevent cities like Boulder and Denver from protecting members of the LGBTQ community from discrimination based on sexual orientation. Windsor v. United States addressed 78. Heather K. Gerken, Federalism as the New Nationalism: An Overview, 123 YALE L.J. 1889, 1894 (2014). 79. For an important effort to rationalize these cases, see John C. Jeffries, Jr. & Daryl J. Levinson, The Non-Retrogression Principle in Constitutional Law, 86 CALiF. L. REv. 1211 (1998). 80. 458 U.S. 457 (1982). 81. 393 U.S. 385 (1969). 82. 517 U.S. 620 (1996). 83. 133 S. Ct. 2675 (2013). [Vol. 105:1695 1714