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The Many Uses of Federalism HOROWITZ 9.0 9/10/2007 12:14:18 PM THE MANY USES OF FEDERALISM Donald L. Horowitz* TABLE OF CONTENTS I. Introduction....................................................................................... 953 II. Two Varieties of Federal Innovation ............................................. 956 III. The Importance of Timing............................................................... 957 IV. The Potential of Federalism ............................................................ 958 V. The Costs of Federalism................................................................... 962 VI. Shortfalls in Benefits ........................................................................ 963 VII. Federalism and Majoritarianism ..................................................... 965 I. INTRODUCTION Sanford Levinson’s very interesting book Our Undemocratic Constitution1 falls squarely in the field that has come to be called constitutional design. This field deserves at least as much prominence among constitutional lawyers as the case law that often does not involve the design of the United States Constitution but nevertheless occupies nearly all of the academic field of constitutional law. When constitutional lawyers discuss the United States Constitution, they take the design as given and focus instead on current controversies that merely involve applications of the design. It takes a political crisis such as Watergate to raise a question about the wisdom of the fixed-term presidency.2 It requires the malapportionment of state legislatures to make citizens wonder whether a federal Senate in which Nevada and Delaware have the same number of senators as do California and New York is a sensible arrangement.3 Only a presidential election in which the popular vote and * James B. Duke Professor of Law and Political Science, Duke University. 1. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION (2006). 2. See JAMES L. SUNDQUIST, CONSTITUTIONAL REFORM AND EFFECTIVE GOVERNMENT 199–200 (rev. ed. 1992). 3. See Reynolds v. Sims, 377 U.S. 533 (1964) (striking down existing and proposed apportionment schemes in Alabama on the basis that they were not devised on the basis of population). 953 HOROWITZ 9.0 9/10/2007 12:14:18 PM 954 Drake Law Review [Vol. 55 the electoral vote go in opposite directions triggers reconsideration of the Electoral College. A controversial Supreme Court decision is needed to prompt a challenge to life tenure for federal judges.4 Most of the time, these institutions are considered unalterable features of the landscape. Our Undemocratic Constitution has the virtue of bringing issues such as these prominently into the foreground. Many of the features criticized in the book are the product of Madisonian constitutional engineering to pit “faction” against “faction,” as The Federalist put it,5 and to prevent the “passions” of a majority from prevailing unimpeded.6 Our Undemocratic Constitution could well be retitled Our Unmajoritarian Constitution because its principal complaint concerns impediments to undifferentiated majority rule, with the notable exceptions of the decidedly unmajoritarian Bill of Rights and judicial review, which survive the book’s scrutiny unscathed. Interestingly enough, the American public is not as impatient with restraints on majority rule as Professor Levinson is, for it venerates the structures created in 1787.7 Even in times of constitutional crisis, such as Watergate, the public habitually blames deficient incumbents, rather than deficient institutions, for the difficulty.8 To be sure, some of these institutions may seem a bit shopworn, even to the general public. With the enormous growth of interstate migration, federalism may be in this category, and this may account for the current attraction of measures to realign the Electoral College vote with the national popular vote. Yet it needs to be recalled that a wide range of institutions are compatible with democratic regimes, and unmajoritarian institutions can assuredly help democracy function. Federalism is among those institutions. Indeed, the adoption of a federal regime in this country in 1787 was followed very closely in Europe and Latin America. In both, federal institutions were seen to provide a democratic solution to the problem of uniting diverse territories in a single regime. Switzerland, Germany, Argentina, Venezuela, Mexico, and Brazil were among the states that adopted federalism for this purpose, and their 4. See REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES (Roger Cramton & Paul D. Carrington eds., 2006). 5. THE FEDERALIST NOS. 10, 51 (James Madison). 6. THE FEDERALIST NO. 62 (James Madison). 7. See HANS KOHN, AMERICAN NATIONALISM: AN INTERPRETIVE ESSAY 8 (1957). 8. See Donald L. Horowitz, Is the Presidency Failing?, THE PUB. INT., Summer 1987, at 3, 23. HOROWITZ 8.0 9/10/2007 12:14:18 PM 2007] The Many Uses of Federalism 955 decisions were explicitly based on the American example.9 Issues of constitutional design, at long last revived in the United States by Professor Levinson’s book, thrive outside the United States. Since the Third Wave of Democratization began in Portugal in 1974,10 dozens and dozens of constitutions have been written and rewritten. Some have taken their inspiration from the United States and adopted fixed-term presidencies, bicameral legislatures, and upper houses with equal numbers of representatives from each federal unit; others have been more eclectic in their design. Whatever the design, outside of the United States, the configuration of institutions is not regarded as an unchangeable feature of the landscape but an arena of purposive activity in which the aim is to engineer institutions that can cope in a democratic way with the problems particular societies present. In the many ethnically divided countries of Asia and Africa, Madisonian methods have more potential than has so far been realized. In such countries, the task is to construct unmajoritarian institutions of the sort to which Our Undemocratic Constitution objects, for the aim is to prevent majorities—ethnic majorities—from forming or, if they do form, from dominating politics and thus dominating minorities. Majority rule— by ascriptive groups—is precisely the problem in such societies. Under these conditions, it is easy to see why the particular institutions criticized by Professor Levinson might be especially attractive: a president with a policy veto, a malapportioned upper house, and even electoral systems that blend plurality counts with geographic distribution requirements for victory.11 And perhaps the attractiveness of such institutions overseas might lead us to rethink their pertinence or obsolescence in the United States. In this Article, my aim is to discuss some unexplored frontiers of federalism. By opening a window on comparative federalism and ethnic conflict in severely divided societies, it is possible to show that federalism can often be an aid to the reduction of conflict or to its pursuit in democratic ways. Depending on the configuration of federal institutions, 9. See Donald L. Horowitz, The Federalist Abroad in the World, in THE FEDERALIST (Ian Shapiro ed., forthcoming 2008). 10. SAMUEL P. HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TWENTIETH CENTURY 3, 21–25 (1991). 11. In Nigeria, for example, the winner in a presidential election must receive the largest number of votes nationwide plus at least twenty-five percent of the vote in no fewer than two-thirds of the states. The rationale behind this arrangement is to ensure cross-ethnic support through cross-regional support. ROTIMI T. SUBERU, FEDERALISM AND ETHNIC CONFLICT IN NIGERIA 112–14 (2001). HOROWITZ 9.0 9/10/2007 12:14:18 PM 956 Drake Law Review [Vol. 55 however, federalism can also foster undemocratic institutions. There are, therefore, two main points to be made: federalism has utility in deeply divided societies far beyond the utility that commended it to the attention of those who met in Philadelphia in 1787, but to realize its many benefits, it is necessary to get the federal design right. II. TWO VARIETIES OF FEDERAL INNOVATION When federalism was first devised in the United States more than two centuries ago, its purpose was to build a larger polity out of smaller polities. It had previously been thought, based on experience with ancient republics, that small size was an essential ingredient in republican government. As the Federalist papers argued, by proliferating contending factions and balancing their effect, federalism could provide a new way to extend the range of republican government beyond what had previously been thought possible.12 The Anti-Federalists disagreed with this assessment. They argued that the powers confided to the national government were not compatible with republican government and would make the rights of citizens insecure. This brought rights consciousness to the forefront of public consideration in debates on ratification and gave rise to the Bill of Rights as a check on national power. Enlarging the territorial base of a polity through federalism proved to be an attractive technique. In the nineteenth century, Switzerland and Germany used the same federal technique, although other states, notably Italy, formed large polities out of disparate component units without dividing power between those units and the center. Today, however, according to the Forum of Federations, there are only twenty-four federations in the world.13 Several more unitary states have particular regions that are autonomous or
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