Law Commons^™

The New Comity Abstention, John Harland Giammatteo

Journal Articles

In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.

This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …

Illiberalism And Authoritarianism In The American States, James A. Gardner

Journal Articles

Federalism contemplates subnational variation, but in the United States the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the U.S. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently that subnational variations in policy preferences and …

The Theory And Practice Of Contestatory Federalism, James A. Gardner

Journal Articles

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

Constitutional Economic Justice: Structural Power For "We The People", Martha T. Mccluskey

Journal Articles

Toward that goal, this essay proposes a structural principle of collective economic power for “we the people.” This principle is both consistent with longstanding Constitutional ideals and tailored to the current challenges of neoliberal ideology and policy. It develops two premises: first, it rejects the neoliberal economic ideology that defines legitimate power and freedom as individualized “choice” constrained by an existing political economy. Instead, this proposed principle recognizes that meaningful political economic freedom and power fundamentally consist of access to collective organizations with potential to create a “more perfect union” with better and less constrained options. Second, the post-Lochner principle …

Intrastate Federalism, Rick Su

Journal Articles

In debates about the role of federalism in America, much turns on the differences between states. But what about divisions within states? The site of political conflict in America is shifting: battles once marked by interstate conflict at the national level are increasingly reflected in intrastate clashes at the local. This shift has not undermined the role of federalism in American politics, as many predicted. Rather, federalism's role has evolved to encompass the growing divide within states and between localities. In other words, federalism disputes — formally structured as between the federal government and the states — are increasingly being …

Distinctive Identity Claims In Federal Systems: Judicial Policing Of Subnational Variance, Antoni Abat I Ninet, James A. Gardner

Journal Articles

It is characteristic of federal states that the scope of subnational power and autonomy are subjects of frequent dispute, and that disagreements over the reach of national and subnational power may be contested in a wide and diverse array of settings. Subnational units determined to challenge nationally-imposed limits on their power typically have at their disposal many tools with which to press against formal boundaries. Federal systems, moreover, frequently display a surprising degree of tolerance for subnational obstruction, disobedience, and other behaviors intended to expand subnational authority and influence, even over national objection. This tolerance, however, has limits. In this …

Justice Brennan And The Foundations Of Human Rights Federalism, James A. Gardner

Journal Articles

In a well-known and widely cited 1977 law review article, Justice William J. Brennan called on state courts to “step into the breach” and use their authority as independent interpreters of state constitutions to continue on the state level the expansion of individual liberties begun on the national level by the Warren Court. Justice Brennan was right about the importance of independent state constitutional law, but he was wrong about the reason. The benefits of independent state constitutional law have little to do with expanding human rights and everything to do with federalism. The confusion is understandable; both individual rights …

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

Autonomy And Isomorphism: The Unfulfilled Promise Of Structural Autonomy In American State Constitutions, James A. Gardner

Journal Articles

In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one …

The States Of Immigration, Rick Su

Journal Articles

Immigration is a national issue and a federal responsibility — so why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that are likely to be enjoined or struck down by courts? Why do they give so little priority to the immigration laws that do survive?

This Article sheds light on this seemingly irrational behavior. It argues that state …

Police Discretion And Local Immigration Policymaking, Rick Su

Journal Articles

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have …

Sustainable Decentralization: Power, Extraconstitutional Influence, And Subnational Symmetry In The United States And Spain, James A. Gardner, Antoni Abat I Ninet

Journal Articles

In the Madisonian tradition of constitutional design, the foundation of a sustainable federalism is thought to be a scientifically precise balancing of national and subnational power. Experience shows, however, that national and subnational actors in highly diverse systems are capable of developing a rich array of extraconstitutional methods of mutual influence, so that the formal, constitutionalized balance of power rarely settles the question of the actual balance of power between levels of government. A more important factor in ensuring the long-term sustainability of a meaningfully federal system is the degree of symmetry across subnational units in their relation to the …

In Search Of Sub-National Constitutionalism, James A. Gardner

Journal Articles

Two recent trends, one favoring federalism as a form of governmental organization and the other favoring written constitutions, have lately combined to produce an impressive proliferation of subnational constitutions. Documents that can fairly be described as constitutions now govern the affairs of subnational units - states, provinces, cantons, Länder - in federal states on every continent. What remains unclear, however, is whether the proliferation of subnational constitutions indicates a corresponding spread of the practice of subnationalism constitutionalism - whether, that is, the appearance of subnational constitutions around the globe evinces a spreading ideological commitment to a strong role for subnational …

Notes On The Multiple Facets Of Immigration Federalism, Rick Su

Journal Articles

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and …

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

Journal Articles

It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the …

State Constitutional Rights As Resistance To National Power: Toward A Functional Theory Of State Constitutions, James A. Gardner

Journal Articles

In the American legal order, constitutional rights are conventionally understood to apply to and restrain the level of government created by the constitution in which those rights appear. Thus, individual rights in a lower-order constitution are understood to apply solely to the lower level government and to have no relevance to the actions of any higher level of government. This article challenges the conventional understanding by arguing that individual rights appearing in state constitutions can in many circumstances play a meaningful role in restraining the exercise of national power. Specifically, the identification and enforcement of state constitutional rights can serve …

State Courts As Agents Of Federalism: Power And Interpretation In State Constitutional Law, James A. Gardner

Journal Articles

In the American constitutional tradition, federalism is commonly understood as a mechanism designed to institutionalize a kind of permanent struggle between state and national power. The same American constitutional tradition also holds that courts are basically passive institutions whose mission is to apply the law impartially while avoiding inherently political power struggles. These two commonplace understandings conflict on their face. The conflict may be dissolved for federal courts by conceiving their resistance to state authority as the impartial consequence of limitations on state power imposed by the U.S. Constitution. But this reconciliation is unavailable for state courts, which, by operation …