A MODEL OF CONTESTATIONAL FEDERALISM  By  Douglas Henry Walker, Jr.               A DISSERTATION  Submitted to Michigan State University in partial fulfillment of the requirements For the degree of  Political Science  Doctor of Philosophy  2017                         I dedicate this work to my loving wife, Elizabeth, and to my parents, Doug and Betsy, who supported me in my studies. I am truly lucky to have them in my life.           INTRODUCTION1  CHAPTER ONE: THE INADEQUATE SAFEGUARDS OF FEDERALISM..12 The Debate on the ...12 The Inadequacy of the Judicial Safeguards of Federalism17 The Constitutional Fo...18 The Distinction Between Internal and External Comm20 The Distinction Between Police Power and Commercial Regulations...25 Commerce Versus Manufacturing, Mining, 28 Direct Versus Indirect Effects 32 The Tenth Amendm...34 The Outcome of the New Deal: Cooper35 The Federalism Revolution an37 Conclusion: The Inadequacy of Judi..46 The Inadequacy of the Political Safeguar47 The Need for a New Theory o55  CHAPTER TWO: A THEORY OF CONTESTATIONAL FEDERALISM..57 How to Divide Po58 Functional Differentiation and Sepa.58 Functional Differentiation an.61 Contestation a68 Contestation and Madisonian Separation of Powers69 72 Contestation and the Popular Safeguards of Federalism75 81 The Courts 84 Judicial Supremacy and Madisonian Constitutionalism84 Contestatio88 Judicial Review in Contestational Federalism91 Contestational Federalism and National Supremac92 Conclusion.......98  CHAPTER THREE: FEDERALISM AND THE DIVISION OF MILITARY POWER100 The Right to 104 Federalism and Military Power in the Constitutional Convention08 Federalism and Military Power: The Anti-Federalist Critique111 Federalism and Military Power: The Federalist Response117 Drafting and Ratifying the Second Amendment21 The Original Meaning of the Second Amendment124 Early Commentary on the Second Amendment130 The Second Amendment: An Anti-Federalist (and Federalist) Victory134   Conclusion 138  CHAPTER FOUR: THE ORIGIN AND DECLINE OF THE CONSTITUTIONAL SAFEGUARDS OF FEDERALISM141 Contestational Federalism at the Founding145 Contestational Federalism and the Founders145 Mixed Motivations and the Institu155 How Mixed Motives Undermined Contestational Federalism162 Defending the Sincerity of the Fede166 Political Parties and the Decline of the Safeguards of Federalis173 The Effect of Political Parties on Separation of Powers174 The Effect of Political Parties on Federalism177 182 The Complexity of American Federalism185 Contradictory Trends in American Federalism188 The Patriotic Foundations of Federalism in America192 The Centralizing Tendencies of Democracy: Soft Despotism198 Argument202 The Future of the Patriotic Preconditions of Federalism209     Conclusion 211  CHAPTER FIVE: A NORMATIVE DEFENSE OF CONTESTATIONAL FEDERALISM214 Federalism and Democratic Government215 Decentralization and Democratic Government216 Federalism, Contestation, and Democratic Government219 Federalism and the Provision of Public Goods221 The Case for Competitive Federalism222 Competitive Federalism Versus Race to the Bottom Theory225 Testing Race to the Bottom Theory Empirically226 Federalism and Individual Rights234 The Debate over Federalism and Rights 236 Federalism and Individual Rights in Contemporary Persp241 Contestational Federalism and Limited Government247 Elevating Constitutional Discourse253 Conclusion 255  CHAPTER SIX: THE REVIVAL OF CONTESTATIONAL FEDERALISM258 Reviving the Means of Contestation260 Reform the United States Senate261 State Veto of Federal Laws265 Reforming Political Parties and Partisanship269 Change Party Rules for Nominating Candidates270 Check Upward Movement of Politicians273 Encourage Divided Government274 The Courts and the Constitution277 Global Models of Contestational Federalism279   Conclusion 283  BIBLIOGRAPHY288      Modern political theory aims to form institutions rather than people. Eschewing attempts to fashion virtuous citizens through comprehensive educational programs, the moderns sought instead to erect political and constitutional mechanisms that facilitate good government in spite of the individual badness of each citizen. In particular, the attraction and success of political liberalism, which has come to dominate the modern world, depends largely on its claim that such structural mechanisms can induce public-spirited behavior from selfish political actors, maintaining good government without sacrificing liberty.  Federalism, or the constitutional division of sovereign governmental power between multiple levels of government, is one such mechanism. Federal states are comprised of non-overlapping and partially independent subnational jurisdictions defined on the basis of geography rather than function (Feeley and Rubin 2011, 12-13).1 which the central government retains full sovereignty, or confederations in which sovereignty resides with the member states, in modern federations neither the national nor the state (or subunit) governments2 have complete governmental power. Rather, the people retain sovereignty, but divide the powers of government two constitutionally protected levels of government. Each level possesses both exclusive powers which may be exercised only by that  Federalism is widely believed to promote a variety of normative goods, such as democratic politics, efficient and limited government, liberty, and union. Arguably, it brings                                                            1 More precisely, federalism may be defined as a means of governing a polity that grants partial autonomy to  and Rubin 2011, 12). 2 in the U.S., the primary focus of this dissertation, as well as other federations such as Australia.   democracy closer to the people by reducing the scale of republican government, promotes efficiency, liberty, and limited government by putting governments into competition with each other, and allows for diverse people to unite peacefully while retaining their different identities. If these claims are true, then a properly constructed federal system is of great interest to those concerned about the health of democratic politics. Three questions related to federalism are of particular importance to the political theorist. certainly question some or all of its purported benefits. Second, the specific division of power in a federal system can take many forms. How ought power to be divided between the state and national governments? Third, it is not enough merely to found a federal system without paying attention to how this system is to be perpetuated. Some means or mechanism must be found by which the federal division of power can be maintained. The scholarly literature refers to such federalism will do no good unless it can be preserved. Clearly these questions are interrelated: to resolve any of these specific problems, one must have a broader theory that encompasses them all. Yet, although federalism has been a constant subject of both political and theoretical debate, comprehensive theories are few and far-between. The voluminous body of literature on and Rubin 2008, 1-3). Most work centers on technical debates in U.S. constitutional law, or the economic effects of federalism, or the role of courts in policing federal boundaries, or some other specific topic. Rarely are these disconnected subjects fused into a unified account, and unanimity as to the value or proper structure of federalism remains elusive. The challenge facing scholars is   to construct a theoretical foundation for federalism that provides satisfactory guidance on the disputed issues. This dissertation sets forth a theory of federalism which provides a coherent and unified answer to all of these questions, thus maximizing its benefits and minimizing its downsides to democratic states.3 This model of federalism asserts that federalism is a subspecies of the concept of the separation of powers. As such, it is analogous to the separation of power between the executive, legislative, and judicial branches of government. While viewing federalism as a species of separation of powers has been rare in the federalism literature,4 such an analysis yields far-reaching implications for current debates on the purpose and structure of federalism, the role branches of government, both cases establish a constitutional mechanism designed to promote vigorous and efficient yet limited government.  Fundamentally, federalism and separation of powers are analogous in that both share two principal features: functional differentiation and constitutional contestation. Functional differentiation involves the beneficial separation of the functions of government to promote strong and efficient governance. In the case of federalism, the division is between national and sub-national functions or objects of legislation. Constitutional contestation involves the mutual rivalry and checking that ideally maintains the division of power and prevents the accumulation                                                            3 While this theory relates to federalism more broadly, this dissertation focuses on federalism in the American constitutional system. Due to its novelty and longevitcontributions to political theory (Ostrom 1985, 2)the U.S. model, which has been copied by federations worldwide. It is arguably most helpful to theorize about federalism through an in-depth analysis of its most famous specimen. 4 power between the national and state focuses solely on inter-branch separation of powers. Also, see Federalist #51.   branches of government estabveto bills of Congress. In the federal system, contestation empowers the state and federal governments to check and balance each other using their own formal, constitutional powers. Because ry of why federalism exists, what it is good for, and how it should be structured. Thus, the answers given to the three questions are interrelated.  This theory of federalism is not entirely novel. Echoes of the concept of contestation itself, though not the term, can be traced to the writings of American founders such as James Madison. Such writings, needless to say, have not gone unnoticed, and as we will see, discussions of various forms of contestation and related ideas recur occasionally in scholarship on the founding, the Constitution, and federalism. Scholars deploy the general concept of although judicial and other safeguards remain at the forefront. The concept of functional differentiation, too, has received scattered attention.  Nevertheless, this dissertation contributes to the federalism literature in several ways. The precise theorization and articulation of the contestation model sets my theory apart. Most references to contestation in the literature are tangential, superficial, and theoretically undefended, or are mere summaries of texts from the founding lacking sustained analysis, attention to detail, or updating to reflect modern circumstances.5 Scholars rarely specify concrete                                                            5 For example, Jenna Bednational governments to check each other, which mirrors contestation fairly closely (2009, 98-107). But, she treats   means by which checks and balances are to take place. Not surprisingly, the notion of federalism comprehensively detailing federalist contestation and its role in preserving liberty, this work shows that it belongs in a category of its own. Moreover, it responds to objections in greater depth and analyzes the  Second, checking and balancing (i.e. contestation) is mentioned in reference to maintain the federal balance. This work represents the first book-length treatment of contestation as a means of adjudicating the federal boundary. No one has proposed contestation as the sole or primary safeguard of federalism, instead prioritizing other mechanisms such as informal safeguards (state-national bargaining for instance), various political safeguards such as the influence on the federal government that states derive from political parties, or judicial determination. Yet as this dissertation will argue, without contestation the ability of federalism to check unlimited government is undermined. One key virtue of contestational federalism is that the same mechanism that maintains the federal balancecontestationalso checks tyranny. Third, my discussion of the means by which federalist contestation may be revived is novel. This work provides a broader scope and deeper grounding for contestation. As we will see, even scholarship that grasps elements of the contestational model does not provide a comprehensive theory of constitutionalism, examine the ways in which historical trends such as                                                            structural safeguards as one among many, does not adopt the Madisonian perspective of constitutional construction,  Her treatment of structural safeguards is  relationship to American constitutionalism.    rise of partisanship. But one cannot understand or evaluate federalism without taking into account all of these considerations. The final chapter of this dissertation considers a wider variety of options for reviving contestation than can be found elsewhere in the literature.  In an attempt to provide a comprehensive theory, my dissertation draws upon diverse sources, including legal scholars, historians, political theorists, and political scientists studying comparative federalism, American political development, and American politics. Unfortunately, elsewhere these different literaturescientists and legal scholars have written much about federalism and intergovernmental relations, cite law review articles on the constitutional aspects of American federalism, and legal scholars thus rare to get more than half the picture from either group -7). One may add that scholars of international or comparative federalism engage little with scholars, legal analysts, or political scientists studying American federalism. This dissertation brings to bear a broader perspective on federalism questions than is typical in contemporary scholarship.                            6                                                            6 Garcia held that Congress may, under the Commerce Clause, extend the provisions of the federal Fair Labor Standards Act, which regulated employment conditions and wages, to employees of state and local governments. In                                                               doing so, the Court ruled that the states did not require judicial protection from the federal government in part because they could protect their power through their representation in the structures of the federal government.              federalism, given the enormous role the court has played in this dispute as well as the prevailing opinion in favor of this view. This section details the history of federalism jurisprudence in the line between state and national jurisdiction. The basic argument is that the Supreme Court, despite an attachment to federalism in theory, has been unable to adjudicate federal boundaries in an adequately clear, consistent, or rational manner. The Court has proffered a number of legal distinctions to discern the line between the state and national government, but each rule has proved to be difficult or impossible to elucidate and has failed to divide power in a fully satisfactory way. The Court has repeatedly found it necessary to abandon or substantially weaken the legal limits on federal power, yet apparently without wishing to undermine federalism itself. The failure of judicial safeguards ought to clear the ground for the reinterpretation of the safeguards of federalism proposed in later chapters. This failure stems from a variety of factors. The basic problem is the seamless nature of the American economy, which is interconnected to such an extent that identifying definitively s highly problematic. Almost anything especially since, in the aggregate, even the most innocuous actions can have substantial effects on the national economy. Moreover, the judiciary is far from the impartial umpire envisioned by the American founders. As partisan actors, judges are ill-suited to safeguard federalism reliably or fairly. None of this means that the notion of judicial limits on the national government is absurd on its face, or that credible arguments cannot be advanced regarding the proper limit of federal or state power.   Many scholars, in fact, do make reasoned and even persuasive arguments along these lines. Yet, due to the problems identified in this section, such arguments are always going to be incapable of persuading doubters or creating unanimity without appealing to principles outside the constitutional text, rendering the judicial adjudication of federalism problematic at best.  The Constitutional Foundation of American Federalism  Before discussing the jurisprudence of federalism, it will be helpful to outlines the structure of federalism in the U.S. Constitution . Several constitutional provisions relate directly to federalism. The most important, the SupremaThis Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, any Thing in the CConst., Art. VI). Without this clause it would be impossible to resolve conflicts arising from incompatible state and federal laws. Given that member states in a federal union must have some common laws, the only body capable of providing this unanimity is the federal government. delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved -called (Storing 1981, 65). According to this doctrine, which goes back to the founding era, the federal government has only those powers given to it by the Constitution, and thus must defend every exercise of power with reference to the constitutional text. During the ratification, in response to those claiming that the new Constitution would produce a consolidation of all powers in the l government   FP 39:210). The powers of the national government, he  (FP 45: 292; see also Sheehan and McDowell 1998, 102-03).  Collectively, the Supremacy Clause and the Tenth Amendment establish the basic structure of federalism. The federal government may exercise only those powers enumerated in the Constitution, whereas all other powers may be exercised by the states, but within its proper jurisdiction, federal law is supreme over state law. Yet neither of these provisions really settle the matter. Both raise the question of exactly which laConstitution and which are not: neither provision can limit federal or state power without an a topic on which they remain stubbornly silent. Thus, an understanding of the constitutional provisions relevant to federalism is necessary as a preparation for analyzing the structure of the American federal union.7  At first it might seem that a simple perusal of the powers granted to the federal government would be sufficient to determine the limits of its power. Yet, while federal supremacy is usually uncontroversial, there are several controversial clauses relevant to federalism.8 [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and                                                            7 One set of clauses, the militia clauses, will go undiscussed for now but will reappear in chapter three. 8 Examples of uncontroversial federal powers include, among others, the power to establish naturalization rules for immigration, to coin money and regulate its value, to establish post offices, to make and enforce copyright law, to punish piracy, to raise and maintain armies and navies (U.S. Const., Art. 1, Sec. 8). These grants of power have seldom attracted commentary because their text and context seem relatively clear, and because in most of these areas the need for national unity is obvious.   integrate the new nation economically by empowering Congress to overrule state laws favoring local commerce or discriminating against out-of-state actors. Another problematic constitutional Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the  At first glance, the unrestricted sweep of this clause threatens to expand federal power beyond all bounds. Yet, at the founding, Federalists treated it as a axiomatic truism that did not expand congressional power indefinitely (FP #44). After all,  The legal argument revolves around several major questions. Also, Clause expand federal power? True to the ambiguous nature of the federal divide, historically much has depended on how various bodiesmost notably the Supreme Courthave interpreted the terms of these constitutional provisions. Different interpretive schemes have huge impacts on the scope of federal versus state power. It is that task, or rather the failure of the task to provide an adequate jurisprudence of federalism, to which we now turn.        9                                                             9 The Upside Down Constitution (2012), but which states are forced to compete against each other. His primary fear is that states will band together to persuade Congress to pass legislation dampening competition between the stafederalism jurisprudence, however, is well-researched and persuasive.                                1011 A first step in the demise of the manufacturing/commerce distinction was Northern Securities Co. v. United States (1904). The Court argued that the Sherman Antitrust Act                                                            10 The Dormant Commerce Clause refers to the longstanding doctrine that the Commerce Clause restricts states from unduly discriminating against or interfering with interstate commerce. In other words, the power to regulate interstate commerce is wholly or partly an exclusive federal power. 11 But see Greve (2012, 186-88)   commerce (193 U.S. 197, at 332). At the behest of the Roosevelt administration, the Court interpreted this mandate in broad terms, yet still maintained limits on the commerce power (Thomas 2008, 75-76). However, Justice Oliver Wendell Holmes Jr., in his dissent, warned that, ms to be no part of life  -03). It is not necessary to follow Holmes so far, but his dissent makes a forceful case that a wide variety       12                                                           12 However, the Court still acknowledged a distinctions between local and national concerns (301 U.S. 1, at 30).          13                                                             13 Younger v. Harris (1971); Alden v. Maine (1999).     14                                                            14 The exception is National League of Cities (1976), which, as already noted, was later overruled.                              15                                                           15 E.g. A.L.A. Schector Poultry Corp. v United States (1935) versus Wickard v. Filburn (1942).        16                                                            16 In Printzthe law of other sovereignsubject to those other sovereigns. This is not the rationale that requires state courts to follow congressional enactments, however; the real rationale is the basic structure of American government, as embodied in the supremacy clause. State courts must obey congressional enactments as long as those enactments lie within laws    The Federalism Revolution cases Lipkin (2004, 109). He concludes that the Court                    17                                                           17 Popularly elected national officeholders might protect state power as such if the voters wanted them to do so, but as we will see in the following chapter, such a desire on the part of voters is highly unlikely. Voters want their representatives to solve problems, and generally do not care which level of government takes the lead.               thing technological improvement have negated one of the primary reasons that parties remained decentralized so long: the difficulty of transportation and communication over long distances (cf. Filippov et al. 2004, 236). T Most of the enormous funding necessary for modern campaigns is supplied from the candidates themselves, or pragmatically tied to the candidate without regard to state party affiliation or even state -51).    do not rise through party ranksand thus are not The increasing prominence of celebrity candidates, such as Donald Trump and Arnold Schwarzenegger, only exacerbates this trend. It goes without saying that the more the career trajectory of national officials departs from the traditional pattern, the weaker the link between state and national politicians becomes. 18                                                           18 Canada is a rare exception in which national politicians later serve at the provincial level (Fillippov et al. 2004, 209-210).     Moreover, state ons (Marshall  (McGinnis and Somin 2004)be disposed to take federal action because they want to be responsive, and to be seen to be             The previous chapter demonstrated the inadequacy of currently popular models of safeguarding federalism. For various reasons, the Supreme Court, political parties, and other indirect political safeguards are not sufficient to maintain an appropriate balance of power. In light of this failure, we are in need of a new theory of safeguarding federalism, or else federalism will become a contingent, unstable, and probably temporary arrangement. Broadly, any theory of safeguarding federalism must answer two primary questions. First, which powers ought to be given to which level of government? The federal boundary of power can be drawn in countless ways, and theorists struggle to reach consensus on what principle or principles should guide that division. Second, how ought the federal division of power to be maintained over time? A division on paper is useless unless the two sides can be prevented reliably from encroaching on certainly inform, political or constitutional debates over specific policies related to federalism.   This chapter presents a theory of federalism that provides coherent, integrated answers to the these important questions. To this end, it draws a fruitful analogy between separation of powers and federalism. First, it describes the constitutional basis of both separation of powers and federalism, and the relation of each to popular sovereignty. Second, it shows how functional differentiation relates both to federalism and to separation of powers. In both cases, the separation of powers is grounded on a claim that each power is better at performing certain tasks, such that giving it independence to perform that task will facilitate good government. Second, this chapter describes the topic of contestation and relates it to separation of powers and federalism. Again, the contestation model argues that in both cases the division of power.    How to Divide Power: Functional Differentiation The first primary claim of the contestation model is that functional differentiation is the proper way to divide power in a separation of powers system.19 Functional differentiation may be defined as a difference in function between the separated powers, such that each power performs a different task or purpose. It applies both to the branches of government within a separation of powers system and to the division of power between the state and national governments. The assignment of each function is far from arbitrary, as each function corresponds to a fundamental task of government. Inter-branch separation relies on a distinction between making law (legislative branch), executing law (executive branch), and judging law (judicial branch). former to the federal government and the latter to the states. These distinctions are reinforced by giving each institution a particular institutional designs and structure enabling it to carry out its powers and accomplish its function well. This section unpacks the concept of functional differentiation, in both separation of powers and federalism, as well as its normative virtues.  Functional Differentiation and Separation of Powers Separation of powers as conceived by the American founders divides power on the basis of functional differentiation among the branches. Although the U.S. Constitution establishes some sharing of similar kinds of power,20 the three branches are neither interchangeable nor                                                            19 The primary alternative to functional differentiation is the view that federalism can only arise where drastically different political units are forced to join in union (Feeley and Rubin 2008). Such differences can be religious, cultural, ethnic, linguistic, or some other aspect of identity. It cannot be denied that that pre-existing differences in populations are a primary factor in the formation of federal unions, and that such differences persist and reinforce federalism after union. However, the contestation model insists that there are benefits to federalism that go beyond accommodating diverse viewpoints and identities, such that it is still valuable even in a population (such as the United States) relatively undivided along the lines mentioned above.  20 Specifically: a bicameral legislature, the executive veto, and senatorial approval of presidential appointments and treaties. In fact, Madison argued against total separation and pointed to the American and British governments as examples of sharing power (FP 47: 300308), although the states exhibited stricter separation of function (Rossum 2001, 75).   indistinguishable. Rather, each has a single, exclusive primary function corresponding to one of the great objectives of free government: expression of the popular will, protection of popular rights, and national security or self-preservation. Each function in turn requires a different set of core competencies or specializations. Thus, in the American system, Congress primarily enacts legislathe people and be able to deliberate well; the Supreme Court interprets the law and maintains popular rights, which requires impartial judgment; and the executive above all maintains order and security, which requires energy and unity (Tulis 2003, 88-92; cf. FP 70, 374-75). In a properly designed separation of powers system, each branch is given unique structural characteristics. For functional differentiation to work properly, the three branches (Kleinerman 2009, 13). In addition to checking governmental power, the separation of powers as also instituted for effective governance: each branch is institutionally designed to meet the branch with a different collection of structures and powerssuch as formal constitutional power, degree of democratic representativeness, mode of election, length of term, and number of office-holdersthat enable it to perform its assigned function well (Tulis 1980, 208; Rossum 2001, 77). For instance, in order to facilitate representativeness and deliberation, the legislative branch is large and must be reelected frequently (especially the House), whereas the executive branch, which requires energy and unity, is filled by a single president with a relatively longer term.21 functions, which are best performed in distinctive ways and by distinctive kinds of bodies. . . .                                                            21 -year term was originally designed to help it serve as an aristocratic bulwark against populist democracy.   This division is not aimed primarily at mutual checking but at the efficient performance of (Storing 1981, 60). In fact, the whole project of the Federalists at the American founding centered on building strong, efficient government and refuting charges that this goal was incompatible with liberty (Flaumenhaft 1976, 210211).  Even the Federal Farmer, a prominent Anti-different branches, that each branch may be conveniently made conformable to the nature of the  Because the characteristics of each branch suit only its own role, branches perform poorly  when branches executors, because the large number of members causes protracted discussion where unity and speed are needed, because many members render secrecy difficgreater dependence on public opinion and reelection weakens their ability to make independent or long-term decisions. Tulis argues that modern theorists are often blind to constitutional degeneration because they cannot account fo1980, 208). The Storing 1981b, 2:284). Functional differentiation improves governments. The contestation model opposes the longstanding criticism that separation of powers is only good for checking and balancing power, thus producing slow and inefficient government (ex. Neustadt 1990; Wilson 1885/2006). On the   contrary, far from wanting to hamstring government, the founders held that separation of powers and functional differentiation fostered powerful, effective, efficient government in a free republic. Because each function is distinct from the others, separating the functions allows for a kind of division of labor, wherein each branch and level of government, by specializing in just one function, performs its role better. Moreover, the Constitution gives each institution a mix of formal powers, institutional design, and electoral rules, which together enable them to excel at their function. If one branch attempted to make, execute, and judge the law, it would perform all three functions poorly and slowly. Functional Differentiation and Federalism  entiation of function between the . Far from being constrained by the unfortunate preexistence of states, most founders believed a federal division of power would allocate powers rationally based on which level of government could most effectively carry out that power. Federal states restrict  Statements to this effect are common in the U.S. ratification debates. In the preface to his published notes on the Constitutional Convention, James Madison (1985, 3) described the e to the general government   every power requisite for general purposes, and leave to the states every power which might be (in Wood 1969, 529). James Wilson assured Anti-Federalists that ever object of government is confined in its operation and effects within the bounds of a particular state should be considered as belonging to the government of that state; whatever object of government extends in its operation and effects beyond the bounds of a particular state that part, and that part only, of their political liberty, which placed in that government will (Sheehan and McDowell 1998, 82). state, and which can be better managed by the federal government, was uncertain and is not essential to our purpose. Suffice it to say that, for the founders, federalism corresponds to separation of powers in that both rest on functional differences between separated institutions.    22                                                            22 when debating the law (they calculus).       23                                                             23 Pure public goods are nonexcludable (people cannot be prevented from enjoying them) and nonrivalrous (one    24                                                            24 However, as Bedar (2009, 31) notes, the advantages of policy innovation will only be captured if states share similar goals and pursue diverse policies. If states purse the same policies, or have different goals, federalism does not enhance policy innovation.          The contestation model has direct relevance for the second main question regarding  federal balance of power? Assuming federalism is valuable, any viable theory of federalism must articulate a way to maintain a healthy division of power over the long term, as this is the   precondition for reaping any further benefits. My analysis presupposes the common view that the states are disadvantaged in relation to the federal government. Since, following the New Deal, the federal government has played the predominant role in American politics, the debate typically centers on whether and how the states have sufficient leverage or power to protect their jurisdiction.25 Although, as we saw in chapter one, many scholars believe that other safeguards are sufficiently protecting the states, they generally agree that it is the states, rather than the federal government, that most needs safeguards. Drawing once again on the literature on separation of powers, this section argues that the mutual contestation between the separated powers using formal or constitutional checks and balances. According to this view, the subunit governments should not rely on outside help from the Court or on informal influence though political parties, negotiation, implementation, and the like. Rather, they ought to be given a partial check on the national government through some constitutional means. This section outlines what contestation is and how it works in both separation of powers and federalism, focusing on the American context in particular. It notes that the states originally possessed avenues for contestation, although a full discussion of American federalism will be postponed to future chapters. Contestation and Madisonian Separation of Powers  In large part, contestation depends on a particular view of constitutionalism, specifically the allocation of power and the determination of constitutional meaning. Following George The Madisonian Constitution, the contestation model asserts that American primarily about countervailing power and not about the legal limits                                                            25 A good discussion of the constitutional underpinnings of this change can be found in Greve (2012).   enforced by courts. Put another way, the essence of the Constitution as fundamental law is its foundational division of power and authority and not its legality. This political division provides 2008, 2). Rather than setting up a legal document whose meaning is determined by judges, the onstitutional actors, primarily e fundamental law is best maintained when each -3). The within the separation omeaning by all the branches (Thomas 2008, 3).26 This model requires accepting the propriety of each constitutional actor putting forth a claim to constitutional meaning, without a priori eq This beneficial antagonism is sustained by means of contestation. The construction of constitutional meaning does not take place through consensus or even negotiation but through salcontestation to work, each institutional actor must have a separate constitutional existence and -branch separation of powers, specific formal, constitutional checks include congressional impeachment                                                            26 While this view resembles the theory of departmentalism, it is broader than some versions of departmentalism in that it empowers each branch to make claims about the meaning of the entire constitution, not just the specific powers of that branch (cf. Thomas 2008, 25).   of presidents and judges (cf. Kleinerman 2009, 11112, 12223; FP 65-66: 396-407), presidential appointment of judges, the presidential veto, senatorial confirmation of treaties and presidential appointments, and defend them by deploying their formal and constitutional powers to check and balance other actors.27 In theory, mutual contestation produces a self-enforcing constitution and a relatively stable balance of power between the separated branches of government. Rather than relying on outside arbitration to resolve constitutional disputes, the founders sought to inculcate the self-enforcement of jurisdictional boundaries by promoting rivalry among the branches, supplying each with self-serving motivations to check other branches and promote its own view of this manner fosters the virtues and independence of the different institutions in a positive direction, while maintaining constitutional Madisonian doctrine of separation of powers assumes that giving any one institution or branch the exclusive power to discern constitutional meaning is dangerous to liberty, since that institution might concentrate all power to itself and rule by oppressive means. Rather, power is controlled precisely by dividing it and inducing the holders of power to police each otherwhile giving the final word to the people as expressed in the Constitution and constitutional amendment.  The theory behind contestation is clearly visible in The Federalist. In essay #48, James                                                            27 For an overview of how contestation has worked in American history, see Thomas (2008) and Whittington (2001b).   constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of the powers of government in the same FP 48:268, 272). After refuting several alternative means of adjudicating the separation of powers, Madison declared in Federalist interior structure of the government as that its several constituent parts may, by their mutual foundation for that separate and distinct exercise of the different powers of goveeach department the necessary constitutional means and personal motives to resist encroachments of the others . . . Ambition must be made to counteract ambition. The interests of elf-that the FP 51: 32022).  Contestation and Federalism  In the contestation model, federalism incorporates contestation in just the same way as does inter-branch separation of powers. Giving one level of government the sole power to determine the federal boundary would be just as unwise as giving one branch the power to adjudicate the separation of powers. This point was recognized by the founders, as chapter four discusses in greater detail. Madison explicitly connected separation of powers with federalism, divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments [i.e. branches]. Hence a double security arises to the   rights of the people. The different governments will controul each other; at the same time that each will be controuled by itFP 51:282). The mutual interplay between the different actors requires salutary compromise and negotiation by preventing any one actor from determining the federal boundary. As with separation of powers, contestational federalism requires each actor to have Means of contestation can take a variety of forms, but generally fall into two categories: influence mechanisms and veto mechanisms. Influence occurs when once level of government has some type of direct representation in the other level of government. For example, in the United States prior to the Seventeenth Amendment, and in many federations today, the lower level of government may elect representatives to serve in one house of the national legislature, allowing them to influence the federal government by selecting representatives favorable to state power. Veto power occurs when one level of government may annul the actions of another level through a constitutional mechanism, although in many cases such an annulment can be overridden. Although examples of inter-level veto power are rare, James Madison proposed giving the federal government a comprehensive veto of all state laws, which he considered necesthough influence mechanisms operate silently behind the scenes, they still permit inter-level checking and balancing.      28  Contestation and the Popular Safeguards of Federalism The emphasis on giving political actors themselves the constitutional motives to resist encroachments on their authority exists in apparent tension with another refrain of American political thought: the sovereignty of the people. The American experiment in self-government was founded upon the idea that the people themselves are the true rulers of society. Democratic                                                            28 Even Purcellacknowledges that the Constitution provides g degrees of normative guidance (2007, 197, 189-90).   political systems typically rely heavily on popular elections, recalls, referenda, and the like. people as a body should police federalism and punish violations (Kramer 2005; Tushnet 2000). Jenna Bednar (2009) endorses popular safeguards as part of a multi-faceted enforcement scheme. The contestation model of federalism seems out of place here. By giving government officeholders the primary levers of power, the means of contestation, it contravenes, to some extent, democratic or populist systems that empower the people as a body. Given that contestational federalism derives in large part from the theory of the American founders, it might be seen as just another anti-democratic mechanism they used to restrain the people.29  It is undeniable that the architects of the U.S. Constitution placed great importance on 503). To uphold federalism, then, Americans need to appreciate the role of both the state and national governments and have a knowledgeable opinion of where the dividing line between                                                            29 The classic case for the anti-democratic intentions of the founders comes from Charles Beard (1913) and his followers.    federalism, Madison stated elsewhere that violations of stmajority approved them (1999, 772-77), and that public opinion has kept the Court in line, for example during the controversy over the Alien and Sedition Acts (1999, 846-47). Although these statements should be balancmuch he expected of Americans, both in terms of knowledge and active participation.  While its relationship with popular sovereignty is indeed complicated, the contestation model does not reject popular sovereignty altogether. In fact, it even incorporates the people into the protection of federalism to some degree. Popular elections, the heart and soul of republican government, play an important, though subordinate, role in contestational federalism. As the founders recognized, the people can use their votes to balance the state and federal governments or to defend their rights. Additionally, elections help to reign in the excesses of constitutional contestation. In order to obtain the votes of the people, politicians must limit blatantly self-interested assertions of institutional power and frame their constitutional arguments in ways that have broad appeal. If the voters are the ultimately determiner of who gets elected, there must be a may induce pandering and lower the sights of constitutional argumentation, they also temper the rise of overly-aggressive contestation between self-interested, agonistic institutions. James Madison understood this point well. In Federalist #46, he complains: The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and assigned for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These alone, and that it will not depend merely on the comparative ambition or address  (FP 46: 233).    Because popular vigilance is needed as an auxiliary protection for liberty, it is important that contestational federalism occur within a democratic constitutional system.30 Elections may serve this role even if they are indirect. Originally U.S. Presidents and senators were chosen through indirect election, but this fact did not negate their ultimate dependence upon the people (cf. The Federalist #38). Yet despite its reliance on aspects of popular sovereignty, the contestation model entertains a good deal of skepticism regarding the viability of the popular safeguards of federalism. For one thing, supporters of popular sovereignty overemphasize the populist side of the founding. The foundersespecially the Federalistsdid not want a merely populist interpretation of the Constitution, even if they wanted popular involvement. James Madison total exclusion of the people in their collective capacityof the government (FP 63:341) , andetermine constitutional meaning, in large part because the people would probably be biased in favor of the legislative branch (FP 49: 274-largely in defeating populist projects such as debtor relief legislation, to which purpose they favored large election districts and measures to ensure elite dominance in the government. While the founders perhaps expected too much vigilance of the people, they recognized that the people faced informational limitations that government bodies do not. Americanus wrote: form a check on [Congress], infinitely more effectual than that of the people themselves on their State Legislatures. The people, so far from entertaining a jealousy of, in fact place the highest confidence in, their Representatives; who, by giving false colorings to bad measures, are too often enabled to abuse the trust reposed in them. But widely different is the situation in which the Federal Representatives stand, in respect to the State Legislatures. Here the mutual                                                            30 My th-37) objection that federalism is compatible with a variety of democratic and non-democratic regimes. Needless to say, a republican polity is fundamental to this theory of federalism.   apprehensions of encroachments, must forever keep awake a jealous, watchful spirit, which will not suffer the smallest abuse to pass unnoticed. (Bailyn 1993, 1:230)  be masked under pretenses so likely to escape the penetration of select bodies of men as of the people at large. The legislatures will have better means of information. They can discover the ifferent states; FP 28:150-51). For the founders, the state governments offered the best chance to safeguard the rights of the states and people.   Theorists need not appeal to old authorities on this point. Modern scholarship gives two substantive reasons to doubt that a typical populace, on its own, can monitor federalism adequately. First, the people are not interested or informed enough to make policing federalism a top priority. Given that voters are notoriously uninformed (Delli Carpini and Keeter 1997), especially about federalism (McGinnis and Somin 2004), they are unlikely to expend the energy necessary to study the effects of laws on federalism or to vet representatives on their allegiance to their state. While the people can be expected to pay attention to select issues of vital importance, few conflicts regarding federalism are as explosive as the Alien and Sedition Acts. Modern cooperative federalism, in which state and national authority is muddled and intertwined only exacerbate this information problem. The people cannot punish jurisdictional violations if they cannot assign responsibility for specific policies. The Court has used accountability to the spheres (Ryan 2012, 44-50), but contestation offers a better solution. The national and state   governments are well-suited to keep each other accountable in part because are informed enough to correctly assign responsibility for political outcomes.      31 The Limits of Contestation There are limits to the scope of contestation. To be more precise, actions that are inappropriate for any level of government should not be subject to contestation. As McConnell nosome level, be it state or federal. Some issues are so fundamental to basic justice that they must  thus subject to a single -07). Specifically, contestational federalism allows for protections of individual rights that go beyond the paradigm of contestation. The contestation model neither prohibits federal enforcement of individual rights nor permits                                                            31 each sovereign must be assured of an opportunity to demonstrate its competence; [and] each sovereign must enjoy a significant measure of preconditions, arguably supporting my contention that contestational federalism is necessary to supplement popular safeguards.   defending discrimination by appeoff-limits to either level of government are not hard to find. The Constitution prohibits the states from violating contractual obligations and Congress from passing ex post facto laws (U.S. Const., art. 1, sec. 9-10), and the Bill of Rights and the Fourteenth Amendment protect other values fundamental to our national creed. In these areas, the claim to moral rightness overpowers appeals to local diversity. In areas that are off-limits to contestation, the federal government may take a more active role. Congress or the Supreme Court may to enforce certain real though limited normative commitments that the nation deems too important to commit to local majorities (or even national majorities). The post-Civil War Amendments, for instance, specifically empowered the federal government to enforce racial equality due to persistent violations by states. Admittedly, the judicial solution is more difficult in American federalism because the Supreme Court is a part of the national government and thus is likely biased on federalism questions. Still, it may be the best that we can do. In the end, federalism can only work if some areas exist in which people can legitimately disagree and differ. Arguments about federalism and rights must be tempered by the recognition that, in many cases, legitimate disputes exist over the nature and definition of a right. As McConnell notes: institutions. The alternative to democracy in our system is not utopia but judicial rule, which is not immune to abuse and which unavoidably conflicts with the of decision making autonomy is stronger on the humble assumption that most governmental decisions are fairly debatablethat is, that there is no single 1507).    Often rights will exist in tension with one another, as modern debates over the scope of religious liberty reveal. Is a baker who refuses to bake a cake for a same-sex wedding legitimately exercising her First Amendment right to freely exercise her religion, or discriminating against a discreet midepredations of the states is questionable. When states passed debtor-relief legislation in the 1780s, were they violating the sacred rights of property or compassionately alleviating crushing poverty (or both)? Permitting diversity may sometimes be the best response to deeply-held disagreements. In particular, it seems clear that the federal balance is safely susceptible to contestation in a way that certain individual rights are not (cf. Filippov et al. 2004, 155-156). The idea that two levels of government can check unjust abuses by contesting each other inherently requires tension and ambiguity. If either level was given power to control the other unilaterally, then federalism would be null and contestation impossible. Yet the Fourteenth Amendment is clear that Congress has the power to enforce its terms. To reconcile this position with federalism, federal authority to interfere with alleged violations of equal rights must be limited, and not involve total authority to legislate for the states. It should be more akin to what oppressive state laws in certain areas but not to pass laws for the states. As with the limits to judicial supremacy, determining when Congress or the Court has overreached is tricky and nearly impossible in practice. In our current constitutional system, the viability of contestational federalism depends partly on judicial deference to the political process combined with discretion regarding when to protect fundamental rights.      The Courts and Contestational Federalism   The contestation model of constitutionalism rejects judicial supremacy, the linchpin of judicial safeguards. This position both builds upon and reinforces scholarly support for the claim that the American founders never intended the Supreme Court exclusively to police the boundaries of the branches or levels of government. In The Federalist, James Madison wrote that hose encroachments FP 48:272). During ratification, in the first major debate over constitutional interpretation, Madison famously stated that  I acknowledge, in the ordinary course of government, that the exposition of the laws and constitution devolves upon the judicial. But, I beg to know, upon what   principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent (Madison 1999, 464).   In other words, courts may decide cases that come before them, but cannot make definitive pronouncements on larger questions of constitutional meaning. Elsewhere Madison denied that boundaries between their respective powFP 49:273). Even two key foundational supports Federalist majority opinion in Marbury v. Madison (1803), have been interpreted plausibly as less forceful statements of (Thomas 2008, 28-38; Kramer 2005).  The contestation model also draws on the growing modern scholarship which rejects judicial supremacy as a normative good. Judicial supremacy has been criticized by advocates of both popular constitutionalism (Kramer 2005; Tushnet 2000) and the contestation model (Thomas 2008; Tulis 1980, 1988). Despite many differences, these scholars agree that entrusting the Supreme Court exclusively with boundary enforcement clashes with the original designed to avoid, and likely will fail to maintain a proper balance of power. While this literature addresses horizontal separation of powers, most of their arguments are equally applicable to vertical separation of powers (i.e. federalism).  Judicial supremacy is inappropriate above all because it conflicts with the view, common in American political thought, that constitutional interpretation should not be placed in the hands   of a single institution. Judicial supremacy exists in tension with separation of powers, which assumes the coordinate construction of constitutional limits by all the separated powers. Constitutional documents are not automatically self-enforcing, and entrusting any one institution with enforcement undermines the balance of power between the separated powers. By making the constitutional views of one branch supreme, it precludes contestation and places the Court into legal questions and therefore the peculiar province of courts, the Court is placed above the -16). By contrast, providing mechanisms for federal-state conflict over fluid jurisdictional boundaries coheres with the logic behind the separation of powers.  Judicial supremacy is especially dangerous because, as one of the participants in the separation of powers, the judiciary is especially unsuited to arbitrate impartially the division of power between the levels of government. It might be appropriate for the Court to adopt a supervisory role if it was capable of judging disinterestedly with a view to the common good, but this is not the case. As a branch of the national government, the Court lacks the motive or ability to police federalismif anything, it has incentives to favor the expansion of federal power, which enlarges its own power accordingly (Frohnen 1999, 448-454; Woods 2010, 57; Baker and Young 2001, 102). The fact that the political branches partially control the Court only Rossum 2001, 110), and there is evidence that Congressional preferences constrain the Court (Harvey and Friedman 2006; Clark 2009). In this case, horizontal separation of powers, which cannot function unless the political branches possess some check on the judicial branch, itself   downside is evident in Australia, where throughout the twentieth century the high court neglected to oppose the federal governm-201). In short, authorizing the Court to determine the powers of each level of government improperly places federalism under the control of the federal government, precluding contestation and shifting the balance of power decisively away from the states.  The American founders acknowledged the danger of biased judges in controversies over federalism. In arguing for the necessity of the Supreme Court, Hamilton feared that judges in state courts would be FP 22:112). He discreetly neglected to mention that federal judges presumably would be biased in the opposite direction. Likewise, in a that the constitutional boundary between them s(Madison 1999, 775)propensity to enlarge the general authority in derogation of the local, and to amplify its own 32                                                             32 In this letter, Madison defends the right of the court to determine the boundaries between state and federal power. He was writing long after the failure of contestation (the subject of chapter four), as evidenced in the controversy of at least in the original design (1999, 801). These last statements may well be doubted.     Unfortunately, the nature and structure of the judicial branch induce courts to adopt behavior and procedures at odds with flexible federal boundaries. As a legal body of judges, the Cresembles judicial reasoning and therefore invites judicial adjudication, and judicial rulings are most easily seen as unbreakable rules. For this reason, judicial supremacy arguably coheres best unchanging. The Court operates by discerning and applying doctrines purportedly derived from   the Constitution. The legal rules resulting from this process, being abstract entities, are ill-suited to provide for the necessary flexibility over time, since they may create problems when applied in different contexts. Two cases settled according to the same rule may be evaluated very differently from a normative perspective, and may have very different effects. Even if judges can be impartial, then, the judiciary is simply not structured so as to render appropriate decisions on separation of powers questions. are poorly situated to make (or second guess) the difficult judgments about where power [between the national and state governments] should be settled or when it can be shifted advantageously. Judges lack the resources and institutional capacity to gather and evaluate the data needed for such decisions. They also lack the democratic pedigree to legitimize what they He concludes that 1500). establish a fixed domain of exclusive state where or how to draw tpoliticians dealing with actual problems on the ground are better suited to make these kinds of decisions.       Judicial Review in Contestational Federalism While rejecting judicial supremacy and acknowledging the limitations of courts, the contestation model nevertheless accommodates a limited conception of judicial review. The judiciary certainly has been constructed with a view toward judging, and constitutions are law-like. Far from rejecting judicial review, proponents of the contestation model admit that many questions brought before the Court are legal, not political, in nature, and so fall under the jurisdiction of the Court. Thus, the Court has a distinct role to play in maintaining the federal balance of power.33  dimension of maintaining the written Constitution and exists within the contours of bind the other depar-36). onal questions in which the Court is an interested party and thus unfit to render authoritative judgment. But, as                                                            33 Hamilton (2001who wish to preclude the Court from addressing federalism issues but still allow it to address separation of powers and separation of church and state. these other areas.   we saw earlier, judicial review is more appropriate when ruling on questions of individual rights which must not be violated by either level of government. A healthy self-restraint on the part of judges would go a long way toward making contestational federalism viable. In the end, there remains some inescapable tension between judicial review and separation of powers.  judicial interpretation might inexorably lead the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can neve417). The very structure of the judicial branch makes it seem more authoritative on questions of interpretation, because interpretation is its only task. It is natural, then, that people will come to see the Court as the definitive interpreter of the Constitution. This type of thinking counters the very essence of the contestation model, which neglects to settle abstractly the question of which party should have the final word when interpretative disputes arise. Given that outcomes cannot be determined in advance, scholars describing contestation typically resort to drawn-out descriptions of how constitutional conflict has played itself out in political history (ex. Tulis 2003; Thomas 2008; Whittington 2001b). Thus, the contestation model cannot avoid a fair amount of this kind of tension and unsettledness regarding both separation of powers and federalism.  Contestational Federalism and National Supremacy  One remaining issue needs to be discussed: the relationship between the contestation model and the legal supremacy of federal laws. This section discusses the relationship between   federalism, constitutionalism, and sovereignty. Federalism certainly has a foundation in the United States Constitution. The states are not merely ad hoc bodies subject to revision or removal, and conflict between Ohio and Washington is different than conflict between Toledo and Ohio. However, this constitutional foundation of power is contested, resulting in debates over the powers of each level of government. In the case of federalism, often the question is   The contestation model is based on the principle that neither the states nor the federal government is sovereign. According to traditional American constitutional theory, sovereignty founding, the Federalists argued that the Constitution could mix national and federal elements because, in a r(FP 39: 241). The doctrine of popular sovereignty holds that the people may divide powers between governments without giving up sovereignty to any particular one (ex. Sheehan and McDowell 1998, 233-35), a view which entailes a rejection of the formerly dominant notion (Hobbes 1994, 116; c.f. Blackstone 1893, Bk. 1, Chap. 2). By grounding federalism in popular sovereignty, the founders avoided the creation of an imperium in imperio possessed all sovereign power and could resume it or rearrange it at any time. The powers of government could be allocated to multiple locations without removing sovereignty itself from the people.  of the federal or state governments. Thus, in theory, the identity and status of both levels is protected from incursions the other. Neither level of government is a creation of the other, and   neither can add to or subtract from its own power or the power of the other level. To this extent, there is parity between the state and federal governments. However, as reviewed in chapter one, the Constitution establishes several principles to define and govern the federal division of power. The federal government controls all powers delegated to it, as enumerated in the Constitutionbut the states retain control of all powers not delegated to the federal government. Within the sphere of delegated federal powers, however, the national in every Constitution, and the Laws of the United States which Const. art. 6, sec. 2). The Fourteenth Amendment, which empowers Congress to protect certain fundamental rights against the states, also affects the federal division of power. The Supremacy Clause and the Fourteenth Amendment represent a challenge to federalism which is absent from horizontal separation of powers. They serve to weaken the analogy between federalism and horizontal separation of powers, raising the question of whether the states are somehow subordinate to the federalism government. Contestational federalism must account for the fact that in most if not all federal systems, including the United States, there is an asymmetrical relationship between the lower units of government and the federal government. While admittedly these clauses do not explicitly declare the Supreme Courtor even the federal governmentto be federal government cannot successfully unite the states and coordinate the power of the nation without some ability to make its own understanding of the Constitution supreme. Even Justice John Gibson, the author of the dissent in Eakin v. Raub arguments for judicial supremacy, admitted that federal courts have the power to strike down   ave agreed to 1984, 35). Empowering states to ignore or nullify federal laws is likely to be more destabilizing than contestation over inter-branch separation of powers.  This challenge to contestation is made more difficult by the fact that the expansion of national power has rendered conflict between state and federal laws more common than the founders anticipated. Whereas originally the restrictions on the states were fairly minimal and the scope of national power seemed both distinct and limited, today there is hardly an area where the federal government cannot pass laws. Moreover, as Madison noted (1999, 508-maintaining inter-branch separation of powers because in the former both governments are whereas in the latter the tasks of each department are (theoretically) distinct and different. In other words, the task is to distinguish between two different kinds of legislative power (i.e. local  Still, in my view it is possible to carve out space for contestation over federalism which can harness its advantages while avoiding its drawbacks. Contestation can incorporate national supremacy without acquiescing to centralization. Above all, it is important to remember that contestation is over the legitimate scope of federal powers, not over the exercise or use of a legitimate power. The federal government is supreme within its jurisdiction, to be sure, but it   should not be allowed to unilaterally define the scope of that jurisdiction. The contestation model does not deny federal supremacy, but merely urges that the process of determining which powers have been delegated to the federal government must involve both levels of government on a more or less equal basis. The states, after all, are constitutionally recognized entities in control of all powers not delegated to the federal government.  Permitting contestation without destabilizing American politics no doubt is tricky and requires certain conditions, but there are reasons to think that such a goal is achievable. First, the expansion of federal power does not imply that it is equally necessary for the federal government to act unimpeded in all areas of policy. It is quite possible to draw distinctions between areas where contestation is appropriate and areas where federal supremacy is imperative. Because of the asymmetrical relationship between the two levels of government, however, there is no infallible method to determine whether the Court should intrude in a dispute between the states and Congress. Creating space for contestation over federalism requires discretion, discernment, and restraint by the Supreme Court. When disputes do arise, careful adherence to the values and purposes undergirding federalism provides substantial guidance as to when the Court should intervene. In areas that are not proper subjects of contestation, the Courts can and should pronounce improper state laws to be void, and state attempts to oppose such decisions should be disallowed. Three such areas seem particularly important: cases regarding powers absolutely essential to the national government and to union, such as national security or the treaty-making power; cases involving individual rights; and cases involving powers explicitly denied to the states by the Constitution. However, in cases where there is legitimate debate over which level of government should exercise a disputed power, it is both permissible and salutary for the Court to allow the process of constitutional construction via mutual contestation to proceed unimpeded.   Most of the policy areas embraced by the federal government since the founding would fall under this category, unless conditions have changed to render federal oversight of these areas necessary. That such decision-making inevitably involves ambiguity and the balancing of values and interests makes it no different than other types of judgments made by the Court.  Another reason contestation and national supremacy may be reconciled is that originally the states were given means to influence, not veto, federal actions. It is important to recall the ve the states primarily to work invisibly, behind the scenes, in the form of influence both before and during the passage of federal laws. Ideally, state influence entails that state interests are protected organically in the very wording of federal laws. In this case the supremacy of such laws is unobjectionable to the states from the start, and the sticky problem of judicial review is obviated altogether. The states collectively can influence and check the actions of the federal government without directly ignoring or invalidating federal laws, either individually or in a group. Finally, even in the case of confrontational means of contestation, there are good reasons to doubt that contestation over federalism would destabilize the constitutional system or lead to a massive diminution of federal power. Just as contestation between the branches of the national  system since the founding, has not produced many ill effects, neither will federalist contestation. Admittedly, some inter-branch conflicts have occurred, but they have not produced permanent or overly deleterious effects. Despite widespread belief to the contrary, the absence of judicial supremacy does not necessarily lead to deadlock (Tulis 2003, 90-91). For instance, presidents have occasionally ignored the   Supreme Court, but this action has not hamstrung the judiciary or become a consistent occurrence. Regarding federalism, it is highly unlikely that the states greatly want to exercise the powers most essential to the federal government, such as national security and diplomacy. Feeley f American federalism would agree that the federal government can exercise plenary authority in organizing its armed contestation, at least a majority of all states (if not a supermajority) must agree to check the concerns, and pragmatic compromise and experimentation over time will produce positive distributions of power. Conclusion  This chapter has advanced a novel and comprehensive theory of federalism. It answers the two structural questions related to federalism: how to divide power between two levels of government and how to maintain that division over time. This theory is based on an analogy between federalism and inter-branch separation of powers. Specifically, both structures share two core characteristics: functional differentiation and contestation. According to functional differentiation, power is divided between powers on the basis of a specialization in function designed to promote efficient and vigorous government. Contestation refers to the mechanism by which the separated powers patrol each other using formal checks and balances. Contestation might involve a cross-level veto, the systematic effect of popular elections, or state selection of federal officeholders.  This chapter has argued that contestation as a federalism enforcement mechanism enjoys several advantages over rival mechanisms such as judicial supremacy. It is fluid where judicial   safeguards are static. It is impartial, whereas the Supreme Court favors federal powers. It incorporates popular oversight without having to overcome the apathy and ignorance of the voters. In light of the inadequacies of other safeguards discussed in chapter one, contestation arguably provides the most coherent and reliable mechanism to check the concentration of power and preserve a healthy federalism. Though other safeguards may play a supplementary role in enforcing federal boundaries, they should be of secondary importance. It is high time for scholars to pay renewed attention to the structural or constitutional safeguards of federalism.                          34                                                            34 In fact, it  Justice Scalia argues that the prefatory clause Heller, 570). In my view, the prefatory clause confirms that the protected right is an auxiliary right instituted for a specific purpose: enabling collective resistance to governmental oppression. The intent and purpose behind a right is always relevant legally,    35 A federalism-focused interpretation of the Second Amendment transcends a mere auxiliary right to keep and bear arms, yet it is instructive to elaborate the legal implications of such a right. Such a right would certainly protect rights essential to permitting armed resistance to tyranny, such as purchasing weapons, keeping them in the home, and training with them (e.g. at shooting ranges). By contrast, some regulation of gun use not associated with the militia, such as hunting or carrying concealed weapons, would be permissible. It would protect all weapons in common use among infantry soldiers (such as M16s today), but not artillery, tanks, and other specialized weapons.36 Finally, it would apply only to citizens capable of serving in the militia, excluding the mentally handicapped, criminals, children, and the like.                                                            35 -69) chapter on the English republican theory of arms-bearing does not cite any statements supporting armed resistance to governmental oppression.  36 One of the weakest arguments in Heller is its response to the objection if weapons that are must useful in military serviceM-16 rifles and the likemay be banned, then the Second Amendment right is completely detached from the prefatory clausethe degree of Heller, 627-28). By contrast, I agree with Siegel (2013, weapons necessary to resist tyranny       37                                                           interpretation thus detached from its context (and, indeed, text) does not accurately reflect the original public meaning. 37 anachronistically imposed them on individuals in the Convention.       3839                                                             38 For the purported connection between liberty and state power, see Amar (1998, 3-7). C.f. AF, 354. 39 On the Antifederali-74) and Storing (1981a, 15-37).                                                Federalists categorically rejected Antifederalist claims as farfetched and unfounded. They insisted that the United States needed a powerful military force to defend the nation and prevent civil war or insurrection. Standing armies, James Wilson asserted, were necessary  and the element of secrecy and surprise (Bailyn 1993, 1:65). Noah Webster remarked  common Existing fears must be cast aside, they argued, lest the nation disintegrate or succumb to conquest. Federalists maintained that the Constitution contained several checks against abuse of power. Enlisting the concept of popular sovereignty, they expressed perplexity that the   Antifederalists trusted the state governments but not the national government, since the people controlled both through elections (Bailyn 1993, 1:301; Hamilton, Madison, and Jay 2005 [hereafter FPhe state  1:149). Other constitutional checks were the prohibition of expenditures without a lawful appropriation and regular record, and the prohibition of military expenditures for more than two years (ex. Sheehan and McDoweell 1998, 50-51, 394). Since all nations must have a military, Federalists concluded, it was illogical to deny control over armies and militias to the federal government.                      40                                                           40 This article is a cornerstone of the individual rights interpretation. Although, since it mentions hunting, one can read an individual right into this provision, Antifederalists were not concerned primarily with safeguarding individual rights. Even here, checking the federal government was primary, as seen in the reference to people ies, and the eleventh article, which explicitly connected    41                                                             militias to federalism. If the national government cannot disarm the militia, it follows that people can hunt, but killing game was not the underlying motive. Even if so, federalism and centralization were the paramount concerns of Antifederalists generally. 41 Given the homogeneity of Antifederalist thought, it is most reasonable to believe that these proposals reflected identical concerns in somewhat different language. It is false to assume, as many collective rights proponents do (Rakove et al. 2013, 65-66), that proposals power, diverge wildly from the final text. While formulations mimicked proposals from his home state of Virginia, he sought to consolidate all the proposals into a concise declaration of rights, later writing that the 704). Moreover, JereSecond Amendment (Halbrook 2008, 206-09).      42                                                           42 The ter       43 44                                                           43 Amendment. Although some differences remain, his view closely resembles mine and I am indebted to him. 44 The debate centered on the militia clauses because, at the time, nobody imagined any other clause could authorize disarmament (cf. Rakove et al. 2013, 61, 70-71).  prohibits regulations based on other clauses (such as the commerce or general welfare clauses).       45                                                            45 It is unclear whether American states contain provisions granting an auxiliary right to arms. While a full examination exceeds my purpose, most state-level provisions appear individualistic in nature.               46                                                              46 Special Collections Research Center, Tucke-Coleman Papers, Earl Gregg Swem Library, College of William and Mary, 127-28.             To further substantiate the federalist interpretation, it is necessary to interact with the arguments in support of the collective rights interpretation. Despite often acknowledging the any limits on governmental power. Virtually all endorse unlimited gun regulations at both the state and federal levelsincluding, probably, Justice Stevens.47 While Bogus (2000, 7-8) ignores the Second Amendment altogether when making this claim, other scholars deploy two primary justifications.  First, some argue that Anti-Federalist views are irrelevant because the Federalists allegedly co-opted the Bill of Rights and . S-Cornell identifies a                                                            47 Heller states th-law right of self-defens-defense ss to disarm the state militias Heller, 637), it is more reasonable to conclude that the amendment protected state jurisdiction and limited federal jurisdiction.   ratification debates and early commentary (2006a; 2006b, 1127-1133), but disregards it as the discredited position of the Antifederalist losers (2006a, 5; 2009, 1121).48 Second, in a petition to the Supreme Court, a long list of scholars argue that, while drafting the amendment, the Senate al. 2013; also Cornell 2006a, 61; Rakove 2000, 86; Konig 2004, 158; c.f. Young 1995, 710).49 would be a mat On the contrary, however, there is ample justification for viewing the Second Amendment as a meaningful limitation on federal power. Civic rights proponents correctly characterize the right as both a right and a duty to defend the nation, but ignore the fact that it also includes the (auxiliary) right of citizens to combat governmental tyranny, which renders certain gun regulations unconstitutional. Otherwise, it is difficult to explain why several state (see Young 1995, 747-80)raising the possibility of the people (collectively) defending themselves against the stateor why the Second Amendment protects a but the founders believed that citizens must defend themselves against domestic tyrants as well                                                            48 -Federalist Joseph Story (Cornell 2006b, 1130-1139)but then seemingly proceeds to nullify the earlier view. But far from being mutually contradictory, federalism and the civic conception of arms-bearing are both essential to an understanding of the Second -bearing was still a right and  49 Additionally, Rosenthal -federal government. However, the debate was not about whether regulations would exist but about which level of government would enact them.   as foreign enemies. Cutting the right in half is especially unjustified because the revolutionary implications of the right (alongside federalism) figured most prominently in the ratification debates.50 More fundamentally, there is no reason to believe that Federalists even objected to the Anti-Federalist understanding of the amendment. It is quite compatible to say both that the Federalists refused to compromise their essential goals and that the Second Amendment addressed Anti-concernfederal power to raise armies and naviesthere is no reason to doubt that it (partially) mollified Anti-Federalists. As we have seen, all early commentators assumed that states constitutionally could arm their citizens free from national interference, and there is no evidence that Federalists wanted to disarm citizens or gut state militias (which they viewed as largely incompetent and therefore irrelevant). While these public arguments were not meaningless, the Second Amendment further enshrined them and, crucially, diffused most opposition to the Constitution. amendment to avoid redundancy (Amar 1998, 51-occurs twice in the original formulation (Halbrook 2008, 88). Throughout, the Senate consolidated and condensed the proposals, implying that a revision did not signify a redefinition                                                            50 Some criticize the individual rights position for allegedly endorsing a constitutional right of insurrection whereby On the contrary, the military check of federalism was connected to a natural (not constitutional) right to resist oppression. Rather than enshrine a debilitating constitutional right to rebel, the Second Amendment tacitly endorsed a natural right of revolution, exercisable only in dire circumstances. It was also part of the ultimate checks and balances between the two levels of government, as Publius recognized. Despite inviting conflicting understandings onstitutionalism, and was certainly part    (Labunski 2006, 237-39). Ambiguous pieces of circumstantial evidence should not trump the bulk of the historical data. 51                                                              51 Cf. Scalia in Heller: the organized militia is the sole institutional beneficiary of the Second Amendment's litia' as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the rganization from which  (600).     52                                                            52 Because of the ultimate nature of the check brought about by military power, this chapter is somewhat disconnected from the other chapters in this dissertation. The only time states have attempted to check the central government using military power was the Civil War, and in that struggle the point of contention was secession, not revolution. Still, armed resistance to the national government remains a theoretical possibility.                53                                                           53 It should be kept in mind that the issue of republicanism versus monarchy, of democratic equality versus deference, is not directly related to federalism. Still, clear issues of the extent of federal power were at stake.        The story of the Virginia and  Kentucky Resolutions sheds light on the means by which federalism is protected in the American constitutional system. Jefferson and Madison assumed that the states would be primed and ready to oppose any increase in power on the part of the federal government, and that they would work together to check the designs of the their common enemy. The people, for their part, could align themselves with either side to ensure the protection of their rights. As it turned out, many state legislators were unwilling to betray their ideological bedfellows, even if it meant the assumption of greater power by the federal government. The episode revealed the paucity of constitutional safeguards for federalism, opening the way to future debates about nullification and the role of the Supreme Court in defining constitutional interpretation.  appropriate balance of power between the state and federal governments, in the American federal system. Whereas chapter two set forth a general theory of federalism, this chapter applies that safeguards of federalism align fairly well with the contestational model. They intended the federal balance to be protected by constitutional checks and balances akin to those between the executive, legislative, and judicial branches of government. This contestation would produce a fluid and healthy division of power and would prevent the concentration of power in one side.   Specifically, they argued that the Electoral College, Senate, and electoral system would protecting the states from federal encroachment and vice versa.  Thsafeguards are no longer operational. First, the original constitutional settlement reflected confusion and compromise between competing design principles for the Senate, one of the main proposed safeguards of federalism. Second, the rise of political parties frustrated the original design for separation of powers in ways detrimental to contestation. Third, the passage of the Seventeenth Amendment eroded whatever value the Senate had for constitutional contestation. state and local governments, undermining electoral safeguards. This chapter concludes that the failure of contestation complicates the revival of contestation as a safeguard of federalism.  Contestational Federalism at the Founding                       54                                                            54 I consider the reliance on popular sovereignty to be a constitutional safeguard because it is expressed through constitutionally-ordained elections, which must be distinguished from non-constitutional popular safeguards such as the right of revolution and mob demonstrations, which had a place in early American constitutionalism (Fritz 2007).                55                                                             55 Wilson, it should be noted, in the Convention favored the selection of senators by the people at large (Madison 1985, 82-83). His reversal may have been an attempt to defend a Constitution he considered imperfect by using arguments designed to appeal to his adversaries.                           56                                                            56 was generally consistent, but it cannot deal adequately with the secondary literature on this topic. Alan Gibson (2002) provides a skilled overview of the relevant literature. He shows that the dominant view in the twentieth century was that Madison was inconsistent: he started out a fervent nationalist who changed course dramatically in the 1790s. Others hold that he remained stable on the ends of government but changed his mind on the constitutional structures necessary to achieve these ends. Zuckert (1986) and Banning (1998) present compelling accounts that emphasize consistencies in Madison.              57                                                            57 Note that Mason changed from supporting popular election to supporting state selection (Notes, 75, 190-91). This change may have resulted from the fact that the structure and purpose of the Senate was constantly in flux throughout the debate.    58                                                           58 -27) conclude that protecting federalism was not a widespread goal of the Senate. Homultiple motivations behind the Senate, not that protecting federalism was not a motive.                                  59 60                                                           59 As an example, see the exchange on the Senate between Hamilton and Melancton Smith in the New York 93, 2:813), local/state prejudices do not need to be augmented because they are more than strong enough to protect state power, that in fact they will undermine the national government and weaken the union, and that the Senate should be purified of local prejudices. Smith treats this claim as an outlier, entirely opposed to the typical Federalist argument, which lauded a close connection between states and their senators (Bailyn 1993, 2:806). 60 For a balanced argument opposing the view that Madison was a radical centralizer, see Greene (1994). For a detailed study of the many federalisms in the founding, which stresses that Madison was more nationalistic than others at the Convention, see Zuckert (1986).        61                                                            61 Although, it is remarkable that disintegration of the union remained the primary threat for several generations, until at least the Civil War. Certainly sectionalism played a role in this phenomenon, but the power of attachment to the states remained strong for decades.       62  That most of us carried into the Convention a profound impression produced by the experienced inadequacy of the old Confederation, and the monitory examples                                                            62 In the immediate context, he was applying this principle to slavery, arguing that both the slave and free states should have a means to protect their interests.   all similar ones ancient & modern, as to the necessity of binding the States together by a stnatural for many in the Convention to lean more than was perhaps in strictness warranted by a proper distinction between causes temporary as some of them doubtless were, and causes permanently inherent in popular frames of opinion, down to the present one, never ceased to be a votary of self Govt, I was among those most anxious to rescue it from the danger which seemed to threaten it; and with that view was willing to give a Govt resting on that foundation, as much energy as would ensure the requisite stability and efficacy. It is possible that in some instances this consideration may have been allowed a weight greater than subsequent reflection within the Convention, or the actual operation of the Govt, would sanction. (Farrand 1911, 3:449)  -term commitment to federalism was sincere, although it modulated depending on the circumstances and needs of the moment. Of course, exaggerate his commitment to state power during the Convention. Still, there is no particular reason to doubt the veracity of his reflections.  Madison was far from alone. The fact that, in the early years of the republic, many ion to defend state power indicates a widespread desire for equilibrium and mutual contestation. During the 1790s, many former Federalists adopted a position much more wary of national power and appreciative of the states as a check on the federal government. Many Convention delegates later became Democratic-Republicans.63 Many other prominent citizens, such as Jefferson and St. George Tucker, joined the Democratic-Republicans, along with a mass of ordinary voters. The concern for mutual checking manifested                                                            63 My conservative estimate, which is derived ) lives of the members of the convention, includes James Madison, John Langdon, Nicholas Gilman, Elbridge Gerry, John Lansing, Robert Yates, Luther Martin, John Francis Mercer, Edmund Jennings Randolph, William Blount, Alexander Martin, Richard Dobbs Spaight, Pierce Butler, Abraham Baldwin, and (probably) William Few. This list is significant given that it excludes both moderate and apolitical members as well as the many delegates who died prior to 1800 (for instance George Mason, a prime candidate for switching, died in 1792). Since parties were not clearly defined, determining affiliation is difficult at times.    itself as early as 1798 in the furor over the Alien & Sedition Acts, and further accelerated following the dominance of the Jeffersonian Republicans after the election of 1800.  In light of this evidence, even statements and proposals which seem to imply hostility toward the independence of the states actually display a concern for mutual contestation and equilibrium. Hyper-nationalist proposalssuch as an unlimited congressional veto of state lawsreflected primarily the unique concerns underpinning the new constitution and do not represent settled opinions about the proper relationship between the two levels of government. Because many founders believed the states were out of control, this concern expressed itself as support for a strong national government. But as times changed, the responses of Americans changed as well. The rapidity and intensity of this transformation suggests that most Americans had desired a balance of power between the state and national governments from the beginning, but shifted their focus based on which level they perceived to be the most dangerous to liberty and good government.              64                                                              64 This observation does not mean that parties are never divided internawing. It is just that such divisions are of secondary importance and impact.        65                                                             65 state governments, would not excite the opposition of a single state or of a few states only. They would signals of a FP 46:258). He assumed that partisan divisions would not cause some states to support the national government, and others to oppose it. The furor over the Alien and Sedition Acts, only about a decade later, would prove him wrong.      66                                                           66 Schiller and Stewart (ex. 2015, 202) view state interests as being connected to particular economic or regional policies, not to state power as such, as I hold. This difference might weaken their critique: it may be easier to choose a candidate who is committed to protecting state jurisdiction in the abstract (whatever policies the state legislators prefer), although national (and perhaps state) party organizations may push back exceptionally strongly against this kind of non-ideological deference. This is why an empirical examination of this question is needed.                           67                                                           67 Although he -four distinct sovereignties, [Americans] consolidation (DA, 431).                   68                                                            68 It should be noted that Tocqueville recognized, but discounted, the differences between the North and South and failed to anticipate a Civil War. The existence of Southern slavery, he believes, did not create inherently conflicting interests, but it did introduce different customs, habits, and mores in the separate regions (DA, 432-33). Northerners -Southerners are aristocratic (DA, 434). However, he holds that even these muted diffeimmigration from North to Southill resemble    69                                                            69 federal law within its borders.   70                                                               70 Tocqueville identifies additional threats to the union: the increasing number of states, which necessarily produces divergent and contradictory interests; the wildness of the western states; the growing strength of many states, which 429, 434-442)                       71                                                             71 This account of the rational basis of federalism is probably derives partly from the Federalist Papers, which Tocqueville read. The Federalists urged union on the grounds that the states would be endangered if the Constitution was not ratified, and attempted to downplay the threat posed by the national government to state sovereignty (ex. FP #17). These arguments are rational, not emotional.     72                                                            72 The prospect of centralization is hinted at in volume one  ty finds it relatively difficult to tolerate experiments with local independenceHe also points to a centralizing thus cannot tolerate special privileges outside the control of the majority (Dby his claim that Americans overwhelmingly favor local liberties and see them as necessary for liberty (DA, 110).                    73                                                            73 At the founding, many Federalists actually anticipated that people would grow more attached to federal power over time (ex. FP 17:85; Notes, 74). Because of a lack of desire to offend Anti-Federalists, such statements were eschewed or merely hinted at in public debates.    It appears that Tocqueville underestimated the likelihood of centralization because he overestimated the restrictions placed on the expansion of national power by the Constitution. Tocqueville thought that Americans permanently constituted both one people and many peoples because he believedincorrectly it turns outthat the Constitution clearly restricted federal jargon, Tocqueville embrasepary discrete and easily distinguishable (DA, constitutional barriers could be expected to check the accumulation of power in the federal government. After all, if allegiance follows political power, and if the Constitution prevents the national government from expanding its power over the daily lives of the citizens, then the dominance of national patriotism is unlikely. Even after he came to fear soft despotism, he may have thought that administrative centralization would occur only at the state level.        74                                                            74 It should be noted that some Latin American and ex-Soviet countries (along with a few others) have engaged in moderate decentralization over the last several decades, often in response to long-term brutality from the central government (Falleti 2010). It appears then that it is possible for a crisis to prompt a revival of federalism, but only after the worst possible circumstances have intervened.       75                                                                75 Despite the weaknesses of popular safeguards, I do believe that the people can sustain federalism when their oversight is supplemented by contestation, as the discussion of popular safeguards in chapter two elaborates.                    It is not enough merely to describe the theory of contestational federalism; it is equally necessary to justify its value over other arrangements. On the one hand, federalism is alleged to supply a number of positive social and political benefits. Still, federalism is not unassailable. Critics charge that strengthening the states will lead to deleterious consequences, such as undermining the rights of minorities and leading to the under-provision of public goods. These objections apply equally well to the contestation model as to other federalism arrangements. In fact, by strengthening the otherwise ambiguous powers of the states, contestational federalism heightens whatever problems, if any, are associated with excessive state power. If this lear away any objections to the expansion of state power.  This chapter evaluates the normative value of contestational federalism. It evaluates the arguments for and against federalism in a number of areas. This analysis lays to rest the claim that federa(Barber 2013, 146). No objection presents an compelling argument against uces a benefits of both large and small states.  Throughout, this chapter draws attention to the unique benefits deriving only from contestation as opposed to other versions of federalism. The value of a federal system is contingent on its specific structural characteristics, and the task of the political theorist is to   design a system that maximizes its advantages and minimizes its disadvantages. As Jenna Bednar ralism accomplishes its goals (2009, 25). Feeley and Rubin (2008) are right that federalism can take a variety of forms, and is too often conflated with decentralization and other arrangements. The task of this chapter is to identify and defend the normative goods that require the formal constitutional division of power between two independent powers. In doing so, I hope not only to improve our conceptual clarity unique benefits unavailable on similar arrangements such as decentralization or consociation, this analysis enhances the overall value of federalism as such. These benefits in turn show that Madisonian constitutionalism is not simply an pragmatic compromise but a beneficial good that promotes the aspirations of effective democratic government and popular liberty.   Federalism and Democratic Government  This section discusses the ways in which federalism improves the quality of democratic governance. It performs this function by increasing political participation, allowing for the quality officeholders. However, these virtues are unconnected to contestation. They may even be satisfied, at least in theory, by arrangements that fall short of federalism, such as administrative decentralization. Still, inasmuch as contestation protects federalism in general, by extension it facilitates its democratic benefits. Contestation also improves democracy by encouraging the elevation of constitutional discourse.     Decentralization and Democratic Government Many scholars argue that decentralization heightens civic participation and dialogue. There is some evidence that it increases political participation (Inman and Rubenfield 1997; Borck 2002). However, as Bednar notes, the greater salience of national elections counteracts stakes high enfederalism can increase the diversity of those involved in decision-making and dissent (Bednar 2009, 44). There is evidence that large states give greater voice to the rich and powerful, whereas smaller governments create a more equal playing field (Borck 2002). Heather K. Gerken (2014, national agenda, dissent from within rather than complain from without, and offer a real-life out; it provides for better conflict resolution. Federalism also enhances political affiliation by giving those supporting the minority party in the national government meaningful avenues for policy formation and political connection (Gerken 2014). Gerken (2014, 1903): When states federalism turns dissenters into decisionmakers, not just lobbyists or evidence showing that political participation increases with decentralization (Hankla 2009, 635)    The benefits of allowing local diversity are greater if geographical differences in preferences exist that are difficult to satisfy with a national law. This was certainly true in 1787. At the founding, the typical American was ferociously parochial, proud of his state, concerned to protect its unique interests, and viewed regional diversity as both necessary and inherently good. The Anti-Federalists in particular argued that no central government in a nation as large as the United States could govern justly or make uniform laws suitable for states with diverse cultures, demographics, and needs (ex. Frohnen 1999, 381). Even in our relatively homogenous modern  the world, ethnicity divides populations along geographical lines, leading to compromises where -9). In many countries, union would be   impossible without giving some autonomy to different ethnic groups. Federalism can reduce tensions within nations by defusing political conflict, but sometimes facilities conflict based on ethnicity or long-standing rivalries (Bednar 2009, 47).  Decentralization can also enhance the quality and accountability of representative -Federalists insisted that only representatives voted on at the local level would truly represent their constituents, whereas the federal government would be populated by wealthy elites with little in common with ordinary Americans (ex. Frohnen 1999, 381, 395-98). Even Madison admits that enlarging the electorate respect; the great and aggregate interests being referred to the national, the local and particular, FP 10:53). Modern scholars agree that electing officeholders on a smaller scale creates representatives who are more interested and invested in local prosperity, more knowledgeable about local needs and conditions, and more easily held more accountable for success or failure (Bednar 2009, 45-citizens can better 2009, 635). Additionally, local elections provide opportunities for politicians to gain valuable experience at the local level, and permit citizens to screen candidates for quality before sending them to higher office (Bednar 2009, 51). By contrast, arguments that a large republic improves the quality of officeholders are not as strong as their pedigree. According to James Madison (FP 10:48-54), a key failing of democracies is their tendency toward unjust factions, which tend to be based on local interests or   opinions. For Madison, extending the size of electoral districts would improve representatives ld enjoy FP 10:53). However, new pathologies associated with special interests should temper -seeking factions usually produces pathologies rather than public benefits and political stability (Greve 2012, 41). Logrolling ensures that many interest groups can get their way by mutually supporting -minded people to combine over a vast area. Federalism, Contestation, and Democratic Government It should be noted that these benefits can be obtained with or without federalism as such. These benefits apply to any form of decentralized government regardless of its constitutional structure, and could be achieved by a lenient central government willing to permit a substantial degree of autonomy, however unlikely such an occurrence would be (Feeley and Rubin 2011, 17-37). True, it is almost preposterous to imagine the federal government conducting some sort of nationwide laboratory experiment with the states as test subjects, as Feeley and Rubin (2008, 26-29) conjure up.76 But, they can exist with or without federalism, and so to craft a defense of federalism we must be aware of its distinctive benefits. This focus led Martin Diamond (1973) to classify modern federalism as a species of decentralization that does not detract from the                                                            76 (2008).   overarching sovereignty of the national government. In fact, a growing number of scholars support federalism for nationalist reasons (see Gerken 2014). Still, federalism and contestation do enhance the benefits of federalism to democracy. It is hard to imagine how local democracy or local participation can be truly meaningful when state and local power is a gift of the central government that can be taken away at any time. Such participation will be more meaningful if the states have constitutionally protected power, and contestation further augments the value of federalism for democratic governance. If state officials are empowered to check and balance the federal government, as contestational federalism asserts, then elections for those positions become even more impactful. Also, contestation protects state power, which is a prerequisite for reaping the benefits of decentralization. States have less need to fear a sudden reversal of decentralization if state power is properly safeguarded. For these reasons, partisans of local democracy should value contestational federalism as a secondary and instrumental good. Additionally, in contrast with decentralization or other forms of federalism, contestational federalism empowers the people while avoiding populism. Although stopping far short of an undiluted system of popular sovereignty, contestation gives the people a voice in constitutional deliberation. In this, it differs radically from both judicial supremacy, which is anti-populist, and popular constitutionalism, which embraces maximal popular participation in the construction of constitutional meaning. Contestational federalism incorporates the positive elements of both of these alternatives while excluding their downsides.  voice through competing institutional bodies, namely the two levels of government. Nothing is   pressure. Federalism doubles the institutional expression of the popular will, and federalist contestation provides a secondary mechanism for popular influence. It follows that the people do not merely elect officeholders: they can play off two sets of officeholders against each other. government FP almost always the rival of power; the general government will at all times stand ready to check the usurpations of the state governments; and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other, as the contestation, federalism institutionalizes popular oversight of the Constitution, thereby enhancing republican governance.                   The value of economic competition is far from universally recognized. Many scholars claim that, even if it produces some economic efficiency, competitive federalism According to RTB theory, interstate competition induces states to weaken antipoverty policies and lower taxes lest high-income residents or businesses leave (ex. Musgrave 1997). State generosity exceeds that of its neighbors, and thus have an incentive to lower welfare benefits to be at or lower than those of neighboring states. Since all states engage in this activity simultaneously, the theory goes, there will be an inexorable trend toward lower welfare benefits across the states, leaving poor residents without necessary resources. In the same way, RTB theory predicts that states will attempt to attract economic development and industrial jobs to their state by offering tax breaks to manufacturing companies and avoiding tough environmental regulations. Competition to lower taxes may undermine state budgets and place even greater budgetary pressure on social welfare and other important programs. These scholars propose uniform federal regulations as the antidote to the dangers of inter-state competition.                       Regardless of whether people relocate to receive higher welfare benefits, politicians may still behave under the assumption that they do, leading to a race to the bottom nonetheless. Here, the evidence is mixed, but does not provide strong support for the RTB thesis. Berry, Fording, and Hanson (2003) incorporated into their model the hypothesis that poor people may move for economic reasons (such as better employment opportunities), finding a substantially smaller effect of competition over benefits than previous studies. Craig Volden (2002) rejects traditional RTB models, instead hypothesizing a slower race to the top. That is, he found that states do not lower their welfare generosity competitivelyhigh benefit states are actually more likely than others to increase paymentsbut they are reluctant to make upward adjustments for inflation until neighboring states do so.  Other studies support RTB theory, although even here the evidence is mixed. Bailey and Rom (2004) compare state-level data from state-controlled programs (such as Medicaid) with federal-controlled programs (such as Medicare) regarding benefits, access, and overall spending. They find evidence for a race to the bottom in some, but not all, state-controlled programs, the modest magnitude of the observed RTB, together with the fact that not all state programs experienced one, we should be cautious in our conclusions. Later, Bailey (2007) advances a   -to-the- Albert and Catlin (2002) partially reinforce these findings. Analyzing data on welfare spending from 1977-2000, they discovered that nearly all states had decreased welfare generosity over the period, and that tes varied widely as to the extent of competition (Albert and Catlin 2002, 214). However, they found that states who began the period with more generous policies relative to neighbor states remained more generous, whereas states beginning at the bottom stayed there. Also, competition did not increase following the welfare reform of 1996, as predicted by RTB theory.  One of the most comprehensive and recent studies, De Jong et al. (2006), rebuts extreme forms of the RTB thesis. Using factor analysis to analyze TANF data, they find that from 1996-2003 there was a uniform trend in the states towards more lenient eligibility requirements for immigrant, refugee, and two-and looser asset limitations. However, states became more stringent on behavior requirements such as alcohol screening and child immunization (although movement in both directions occurred). Finally, states became more stringent regarding time limits and exemptions for welfare, alte showed no -metaphorpermitting access to benefits in exchange for fulfilling expected pro-social  In short, the empirical evidence for an across-the-board   RTB is underwhelming. Moreover, as Volden (2006a, 796) points out, most of the literature has omitted a number of politically significant variableswhose inclusion might weaken RTB theory. Skeptics of competitive federalism also point to empirical literature indicating that decentralization promotes the unequal implementation of welfare policy along racial lines. Soss et al. (2001) found a positive relationship between the percentage of black and Latino residents benefits for children conceived while the mother was receiving welfare. Fellowes and Rowe -American residents is positively associated with welfare generosity, eligibility strictness, and work requirement flexibility.77 However, they also find that a number of other factors impact welfare policies, and the effect of race is modest when other variables are taken into account. Fording, Soss, and Schram (2011) find that there is an interaction between local levels of conservatism and race, in that black (but not Latino) individuals are more likely to be sanctioned, relative to whites, as local communities become more conservative. However, this effect is limited to the fourteen states that have engaged in  of implementation of welfare policies to local communities; states decision to enact second-order devolution is positively correlated with its percentage of black residents (Soss, Fording, and Schram, 2008).                                                             77 The percentage of Hispanics exerted a statistically significant effect only on welfare generosity.    total absence of policies or regulations. For example, if RTB truly led to a continuous decline in welfare generosity, we would expect to see no welfare policies (or policies set at the federal minimum). But, a cursory examination reveals that all states have such policies, and many are more generous than the federal minimum. As of June 2016, for instance, twenty-six states maintained an Earned Income Tax Credit on top of the federal EITC. Apparently, even in a race s true for environmental regulation. Such observations are not sufficient to dismiss RTB fears, because economic competition may have prevented even more states from passing stricter regulations (cf. Konisky 2007, 856). Still, it should temper more extreme predictions. Federalism and Individual Rights The ability of federalism to satisfy the preferences of local or regional majorities may be as much a curse as a blessing. It is sometimes argued that federalism makes the protection of individual rights more   question is vital. If federalism undermines individual rights, then its utility evaporates. In the end, I believe that federalism can overcome this challenge, although it is a serious question. This section reviews the evidence that federalism undermines rights, tracing both the debate over federalism and rights throughout American history as well as contemporary arguments. It  individual rights is complicated. Sometimes a tension may exist between federalism and minority rights, but the same tension is inherent in majoritarian forms of government simply, and does not apply explicitly to federalism. Either level of government may threaten or protect rights, and in any particular situation the value of federalism will depend on where the greater danger lies. The apparent tension between federalism and rights arises from the fact that permitting diversity on salient moral issues inevitably means tolerating policies that many people consider sepowerful local right without giving up the ideal of human rights? Assuming, as most people do, that there is only one correct answer to moral questions, federalism demands that people check the human impulse to make justice reign everywhere. Even if federalism is defensible, it will no doubt be uncomfortable.     The Debate over Federalism and Rights in American History           Federalists challenged the argument that local governments best protected rights. The states had passed a number of laws, particularly debtor-relief legislation, that they considered oppression. Worried about such violations of individual rights at the state level, Federalists looked to the national government to prevent the perversion of justice that the state government had been unwilling or unable to stop. It was not enough that representatives enforce their that the great object of polineutral between different parts of the Society to controul one part form invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to correct the abuses of the state governments.  Federalist #10, is the extended republic. Far from demanding homogeneity, like the Anti-Federalists, Madison takes a diversity of interests to be a characteristic feature of modern societies (FP #10). Thus, republican government, while necessary to control governmental abuse, is susceptible to majority tyranny (FP #10). As a solution, a large representative republic d love of justice will be FP 10:52). Moreover, efficacy of demagogic arts by which inferior candidates secure office (FP 10:52-53).   Additionally, in an extended republic, the greater number and dispersion of factions makes it likely that no particular faction will command a majority.  Because of his belief in the superiority of national officeholders, Madison attempted to establish a national veto of state laws. In this scheme, which failed to pass at the Constitutional Convention, Congress would not be authorized to legislate for the states, but its veto would enable it to check unjust or unconstitutional laws. Michael Zuckert (1996) has shown that limited monarchy, in which the king, who was impartial and disinterested in comparison to the elected members of Parliament, could veto acts of Parliament. This scheme involves not the replacement of a small republic with a large republic, but the combination of a small and large republic that enabled a just and republican government to hold sway (Zuckert 1996, 83). Congress serves as the impartial umpire instead of the king. While compatible with federalism, corrective federalism betrays a substantial distrust of the state governments.  Around the time of the Civil War, Americans in the North increasingly came to believe that states were more likely to violate rights than the federal government, largely due to the avery in the South. Following the Civil War, Northerners grafted their view of racial equality into the Constitution through the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments abolished slavery and involuntary servitude, protected equal rights for all citizens, and forbade states from restricting voting rights on the basis of race. They treated the states as the primary violators of rights and dramatically expanded federal power to interfere with state laws, shifting the federal balance of power in a noticeably pro-federal direction. All three included some variation of the following   Const., amend. 15). Michael Zuckert (1996) aralong, complete with a veto of state laws. Stubborn resistance to them by Southerners insistent on preserving a system of racial hierarchy reignited the debate over federalism and rights. However, due to minimalist interpretations of the Civil War Amendments, this shift was not apparent for some time. For decades following their enactment, the Supreme Court adopted a naSlaughterhouse to Plessy was a government to protect rights in the states under the Fourteenth Amendment (Zuckert 1996, 93). The Slaughterhouse Cases (1873) limited the rights protected by the Fourteenth Amendment to those few rights incident to national citizenship, not state citizenship, such as the right to travel from state to state and the right to use navigable rivers. Likewise, the Civil Rights Cases (1883) held that Congress could only remedy racial discrimination by state governments or their agents, not private individuals. Plessy v. Ferguson accommodations for whites and blacks in a variety of settings. On the other hand, during the Lochner era, the Court overturned a number of state (and federal) regulations in the name of AmeZuckert interprets substantive due process as a type of corrective federalism in which the courts, not Congress, oversee state laws. Moreover, given that the Court also overturned federal regulations, the Lochner-era Court does not seem to have viewed the states as particularly prone to injustice. The debate over federalism and rights subsided until well into the twentieth century.   The Civil Rights Movement of the 1950s and 60s, which sought to overturn deeply entrenched racial inequalities, led to a resurgence of the view that localism hinders the protection of minority rightlocalism, while their opponents viewed such claims as a cover for unconstitutional  (1964, 155). In the end, the Civil Rights Movement prevailed. Brown v. Board of Education (1954) outlawed racial segregation of the type endorsed in Plessy v. Ferguson, and various civil rights legislation succeeded in Congress in the coming decades.  Federalism and Individual Rights in Contemporary Perspective In contemporary scholarship the issue of race has receded, leading to a less negative fading as support for segregation has collapsed, interracial marriage has skyrocketed, and views on race have become more homogeneous across the nation. There is a growing sense that neither the federal nor the state governments pose a unique threat to individual rights, and that in particularly situations either level can be problematic (ex. Ryan 2012; Bednar 2009; Yarbrough 1996; Zuckert 1996). In this vein, federalism offers the possibility of mobilizing either level of federalism appears to be at least neutral, if not advantageous, with respect to rights protection.    When evaluating federalism, it is important to recognize that the problem of preventing majoritarian oppression is shared by unitary governments. Controlling the power of the majority without creating an unlimited and unaccountable enforcer of rights is a universal problem in democratic constitutionalism. James Madison underestimated the ability of factions in a mass exercise decisive control over democratic governments. Recourse to a nondemocratic source of protection for rightssuch as the unelected judges serving life termsposes challenges of its own, since unaccountable institutions are also likely to disregard the public good. There is little reason to assume that national majorities are always more enlightened than national ones. With the race issue fading in relevance to federalism, scholars increasingly e of the divide. Just as the states harbored entrenched racial and gender oppression (via slavery, Jim Crow laws, and legalized race and sex discrimination in employment), the federal government has given us McCarthyism, the World War II era anti-sedition laws, and alleged excesses under alternatively championed individual rights and regulatory obligations against neglect by the other side. These range from the federal assertion of rights for African Americans and women during the civil rights movement to state protection for rights beyond those afforded at the federal level, -42). The evolution of rights can work in both directions. Federalism permits rights to be extended in some states well before a national majority backs it. For instance, a number of states permitted women to vote prior to the Nineteenth urt mandated same-  sex marriage nationwide (Obergefell v. Hodges 2015), federalism benefitted same-sex marriage by allowing states to adopt their own marriage policies. As in other areas such as the minimum wage, federalism permits variance both above and below the national average. Innovations at the state level can reveal the advantages and disadvantages of a specific expansion or restriction of rests on the idea that the people of each state have the right (within limits) to develop their own moral views and enshrine them in law. Moreover, state constitutions often protect rights to a greater degree than the federal Constitution, even when using similar languadrew attention to the fact that those whose bid for rights are denied at the federal level may succeed by appealing to the state constitutions. State courts have extended rights in areas such as privacy, freedom of speech, self-incrimination, and elsewhere (Beasley 1996; Shepard 1996). conservative Supreme Court (Shepard 1996, 422-g history legitimately the final arbiters of the meaning of their own constitutions and need not defer to , 1841). Although the federal Bill of Rights was based on provisions in state bills of right, the two can differ, and even when the language of a state and federal provision is identical, state courts may interpret the former differently (Beasley 1996, 104-05). The federal Supreme Court has acknowledged these principles (). This view fits well with the assumption underlying American federalism: that states should be free to develop and protect their own understands of justice and the good.    A number of normative benefits are claimed for state judicial protection of individual rights. Fitzpatrick (2004) argues that judicial federalism allows the people to overrule court decisions through amendmentbecause it is much easier to amend the state constitutions than the federal Constitutionallowing an unelected cadre of judges to interpret the Constitution. Beasley (1996) praises judicial federalism for accommodating the history and diversity among the states, for permitting experimentation, for bringing greater wisdom to bear on rights questions, for increasing popular participation due to the relative ease of amending state constitutions to increase rights or oppose an unpopular ruling, and for protecting the constitutional position of the states. Skeptics challenge divided sovereignty and criticize the often poor or patchy quality of state constitutional law (see Fitzpatrick 2004; Shepard 1996), but the former position is a minority view and the latter is being ameliorated over time. Although they are limited by federal supremacy, state courts can play a role in protecting rights. Additionally, the issue of civil rights for racial minorities, while clearly important, was a unique problem that does not reflect how federalism works in most instances. Sectional divisions over slavery and segregation arose from unique historical circumstances. The U.S. Constitution accommodated, even protected, slavery, and union would not have occurred if slaveholders did not expect slavery to be protected (Klarman 2016, 257-264). It was the breakdown of that supposed comity that led to stark regional differences in rights-protection. If slaveholders had known from the outset that slavery would be opposed unrelentingly by non-slaveholders, then federalism would not be implicated with racism because union would never have occurred. As it is, as the South increasingly mirrors the nation on racial issues, race is increasingly a national   massive sectional disparity in moral opinion without breaking under the strainas indeed the U.S. did during the Civil War.  Given the dual threat to liberty, the costs and benefits of federalism must be weighed with attention to its likely effects in each situation. The failure of federalism with respect to race in the United States does not necessarily entail that every instance of federalism will have such a negatwere justified in the context of racial discrimination may be serious constitutional mistakes in  racial justice must not be -related debates may be resolved appropriately by the democratic process. Many such disputes are less easily resolved than racial equality, with decent and reasonable people taking both sides.  In light of the intractability of many debates over rights, federalism arguably promotes a model of democratic decision-making that often excels unitary governments by providing space for debate and dissent. Daniel Elazar praises the structure of federalism for promoting -sharing as the basis of majoritarianism (Elazar 1996, 2). After all, majorities can be wrong, and a national majority may not side with justice. Federalism shelters and protects this diversity, and creates a platform from which minorities can make claims to the larger polity. Heather Gerken (2014) elaborates the way in which federalism promotes nationalist goals by protecting the voice of dissenters and providing space for working out normative debates. Resolving moral shifts on a state by state basis may be less divisive than turning every moral disagreement into a question about national policy. By setting up two levels of majoritarian government, each with different characteristics,   and Katz 1996, xi). A national majority may be sensitive when a local majority is insensitive, and vice versa. A final way in which federalism promotes rights is its ability to accommodate group rights, or rights based on membership with a specified group, such as a religious, linguistic, or ethnic community. In fact, the original motive prompting the formation of most federal states is the protection of ethnic or religious rights (Tarr and Katz 1996, xxi). However, there are reasons to be skeptical about aspects of this argument. For federalism to benefit sub-groups, those groups must be geographically concentrated so as to form a majority in one the sub-national units of government. In many federal systems, minorities are not geographically concentrated so as to create local majorities at a sub-national level. In the U.S., for instance, blacks do not constitute a majority in any state.  primary danger to rights. The discussion so far has assumed that the protection of insular minorities from majority tyranny is the danger to rights, yet, as the Anti-Federalists saw, the need to protect the majority from tyrannical government arguably is equally important, if not more so. Federalism arguably protects majoritarian self-government by checking the accumulation of government power in any one hands. If unchecked government, rather than a failure to achieve an ideal standard of justice, is the primary threat to rights, then federalism protects the precondition for good government. On the contrary, if governmental oppression is a minor concern compared to securing rights and equality, then federalism loses some of its luster. The value of contestational federalism depends to some degree on the claim that limited government is a more important goal that eliminating every perceived instance of injustice. Given the   comprehensive nature of federal laws, along with the fact that there is no guarantee that the federal government will be right on every issue, such a view seems warranted to me. However, this debate is not easily resolved, and there are few, if any, clear principles to settle the question.  Contestational Federalism and Limited Government Above all, contestational federalism is designed to safeguard liberty by checking the consolidation of governmental power. Madison (FP other, at the same time that each will bargued that the states are uniquely able to monitor federal activity and sound the alarm when the tyranny from taking root in any state (FP 28 and 46; Madison 1999, 148; Bailyn 1993, 1:230). The claim that governmental bodies are more reliable watchdogs than private citizens is no less true today, and the concept of federalism as a safeguard of liberty abounds in the literature (ex. Ryan 2012; Myerson 2006; McConnell 1987, 1504; Boix 2003).78 The U.S. Supreme Court has of public life, federalism protects the libeBond v. United States 2011, 131 S. Ct. 2355, 2364). Bednar (2009, 44) refers to curbing government decentralization c79 Throughout American history,                                                            78 In fact, federalism may be the only way to  government that Tocqueville (2004, 364, 791) and Montesquieu (1989, bk. 2. chap. 4) valued so highly. Tocqueville argues that democratic people cannot stand the intermediary bodies of the aristocratic past, such as towns, state churches, and aristocrats, because they involve giving special privileges that conflict with equality. Under federalism, both levels of government are controlled by popular sovereignty and do not have special rights, so they are more acceptable to democratic public opinion. 79 Feeley and Rubin (2008, 57-59) assume that the idea that federalism protects individual liberty depends on the belief that the national government is the only threat. This is simply untrue if contestation works in two directions.           80                                                            80 Indeed, although their analysis is cursory, their suggestions sound much like contestation.       Finally, contestation protects liberty by making it safe to empower a vigorous and strong government. Only if both levels of government have independent, formal power can the central government be strong enough to carry out its assigned role without threatening the liberties of the people or states. Anation against external enemies or domestic tyrants (FP 1:3; also Bednar 2009, 49-50). Throughout history, governments have centralized and strengthened as a result of wars, but a strong state is necessary to win wars. So how can a strong state be prevented from infringing on the liberties of the people? Contestational federalism argues that liberty can be secured without sacrificing energetic government only by allowing two (strong) levels of government to control each other. The American founders rightly noted, somewhat paradoxically, that contestation enables vigorous government rather than impedes it. The Federal Farmer summed up this view strong and complete, each in itself, the balance is naturally produced, each party may take the powers congenial to it, and we have less need to be anxious about checks, and the subdivision of  (Frohnen 1999, 259). If a government cannot check itself, the only safe alternative is to tightly constrain the entire government. In order to prevent tyranny, one must either weaken all governmental power or establish rival centers of power. This logic applies no less to federalism. Instead of hamstringing the government, the Constitution checks tyranny precisely by allowing suring efficient administration and curbing the misuse of power.81 invaders or internal usurpers.                                                            81 ppointments on the grounds that it improves their quality and fair-mindedness (FP 76:457).    Elevating Constitutional Discourse One benefit unique to contestation, as opposed to federalism more generally, is that it elevates constitutional discourse. Whereas most political argumentation panders to partisan loyalties or public opinion, contestation induces political actors to provide constitutional arguments for their claims to poof the officeholders to the constitutional responsibilities and rights of the place, political actors simply state that the presidency deserves to have greater jurisdiction because he wants more power or prestige; rather, presidents must frame their claims for power in terms of the public good and the constitutional text. By encouraging such a strategy, the Madisonian constitutional arrangement promotes reason above self-interest in constitutional interpretation.  The contestation model embraces a good deal constitutional argument, suor naked self-interest (Tulis 2010, 121).82 tactics, which support rather than challenge the contestation model. Such moves merely illustrate                                                            82 Where this is undermined, contestation fails.    how the constitutional structure can motivate self-interested political actors to use constitutional language when supporting their claims. The goal of promoting high-level constitutional discourse has roots in Montesquieu, one of the foundational proponents of liberalism. Montesquieu argued that contestation between conducive to popular participation and sophisticated argumentation. Referring to the tension between the patricians and plebeians following the expulsion of the kings in the ancient Roman constitution to another than they are under either constitution. At that time all the springs of government are stretched; all the citizens have claims; one is attacked or flattered; and there is a noble rivalry between those who defend the declining constitution and those who put forward the -73). While the Roman example involved a transition between regimes, Montesquieu believed that separation of powers could artificially ensure a permanent tension between separated powers offering competing claims to rule. In this case, principled plane of argumentation. In a discussion of the separation of powers between Parliament and the monarchy in England, he good effect of stretching all the springs of the ensure that neither side would permanently win, but the competition for popular favor would induce all of the separated powers to continue to make principled appeals for support. In the federalism context, such noble rivalry manifests itself in competing claims for the superiority of                                    Two specific supplementary measures should be appended to repeal of the Seventeenth Amendment in order to revive contestation. First, the terms of senators might be shortened. As we saw in chapter four, Senators were supposed to be representatives of the states, but were also given long terms so that, insulated from popular pressure, they could provide an aristocratic   bulwark for the federal government. But the long six-year term undermined the ability of states to control their senators. As Schiller and Stewart (2015) observe, the fact that in the 19th century state legislators typically served one term limited their institutional attachmeand their ability to police the performance of their senators. In most cases, U.S. senators outlasted most of the state legislators who voted for them. And, as Riker (1955, 457) observes,  threaten a senator who, chosen by the old majority, knew he would not be re-elected anyway, or who, with a longer term than theirs, might hope to re-serve longer than their nineteenth-century counterparts, but the fact remains that short term limits are the primary way to ensure accountability to the electorate. Providing for shorter terms for U.S. senators enhances contestation by giving senators a stronger reason to abide by the opinions of the state legislature. In the modern world, four-year term likely should be sufficient to allow states legislatures to hold senators accountable, although a two or three year term is also possible. Second, a constitutional amendment could give state officials the power to recall and/or middle of their term. Instruction empowers state legislatures to give their Senators instructions as to how to vote on specific bills, rejection of which constitutes grounds for removal and replacement. Instruction and recall were debated at the founding and occasionally attempted in the early national period, but ultimately failed (Bybee 1997, 517-530). This reform is a bolder option than shortened term lengths. It obviates the need for shorter terms altogether by giving state governments powerful tools to influence senators directly.    Although both of these options are theoretically sound, the recall power may have more unintended side-effects than shortening term lengths. The recall option might induce a high level of instability which would compromise the workings the Senate, especially if the six-year term is retained. A mid-term change in partisan control of a state government naturally would induce a change in senator (cf. Schiller and Stewart 2015, 27), and other circumstances may prompt recall as well. While nothing prevents both options from being implemented simultaneously, shortening Senators terms to four years appears to offer the maximum payout while disrupting the operation of the federal government as little as possible. Both of these reforms link senators more strongly to the interests of the state government, at least as expressed in the vote of a majority of its members, by giving it more control over representation is to be sustained in the long run, it would appear that other provisions such as the presence or absence of the right of recall and the timing of elections need to be considered, along 83 The founders contradictorily wanted senators both to represent their states and to provide an to undo this tension and bind senators more closely to the state legislatures.84                                                            83 This last proposal introduces the possibility that some state officials might serve a dual function as U.S. senators. In Russia, provincial governors served directly in the upper house until 2000 (cf. Filippov et al. 2004, 128). 84 There are alternatives which would strengthen state control over the Senate without revoking the popular election and Stewart 2015, 13, n24). The Or, the party caucuses in state legislatures could be allowed to determine thei senatorial primary results, thereby nominating the candidates on which the people vote in the general election.      85                                                           85 -enact the vetoed legislation by a simple majority vote. So the amendment would simply force Congress to look at legislation a second time. He does not specify whether the state may veto the legislation a second time. My proposed repeal amendment would not permit reenactment by simple majority, but is open to reenactment by some kind of supermajority.                                                     86 8788                                                           86 Kentucky, Louisiana, Mississippi, New Jersey, and Virginia hold gubernatorial elections on off-years. All of those states except Kentucky also hold legislative elections on off-years. 87 A good introduction to the mechanics of non-plurality systems, which is beyond the scope of this chapter, can be found in Farrell (2011). 88 For instance fairvote.org advocates a variety of alternative voting systems for the U.S. They have numerous links to research and scholars supporting their views.         89                                                           89 Tulis (2003) provides a wonderful account of how the interplay of constitutional arguments can work in practice.   90                                                              90 It is also possible to reinterpret existing constitutional texts as embodying the principles of subsidiarity and collective action federalism. Cooter and Siegel (2010) do a valiant job of exploring what just such an interpretation would look like with reference to the General Welfare Clause and the provisions in Article 1, Section 8. The Tenth Amendment too could be plausibly interpreted as embodying the principle of subsidiarity. However, these reconstructions are of doubtful doctrinal validity, especially given the history of federalism jurisprudence, and would be sharply contested. They cannot wholly replicate a constitutional amendment on the subject.   91                                                               91 It would be more beneficial to conduct an in-depth examination of how contestation operates in one or two primary federal states, say Germany and Canada. However, since contestation is not the focus of most federalism scholars, this analysis would be difficult to perform. I hope to provide just such an analysis in future iterations of this work.    92                                                             92 Most other examples of indirectly elected senates are less significant. For instance, many institutions of the European Union permits member nation is questionable. 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