Is American federalism outmoded, a horse-and-buggy form of government in a hybrid-engine world? Is the United States worse off due to the existence of state and federal governments that share a multitude of governing responsibilities? To the contrary, says Robert Schapiro, federalism is a flexible, resilient, complex adaptive system of government ideally suited to the twenty-first century. The problem, he argues, is that many American judges cling to an outdated “dualist” view of state and federal governance and try in their opinions to draw bright lines of separation between purportedly “truly local” and “truly national” governing responsibilities. This decision-making approach both ignores the realities of intergovernmental relations today and results in less innovative public policy, fewer incentives for political participation, and less robust protection of individual liberties.
In Polyphonic Federalism, Schapiro calls on judges to abandon the dualist project of maintaining or carving out separate, nonoverlapping state and federal spheres of authority and to decide cases in ways that acknowledge and promote the many concurrent state and federal governing arrangements that exist today. In music, polyphony is the combination of independent melodic lines into pleasing chords and harmonies, and Schapiro adopts the metaphor to emphasize the benefits of allowing states and the federal government to make music together, rather than forcing them into separate recital halls.
Political scientists and intergovernmental relations scholars may pick up this book expecting a presentation of empirical evidence that supports a novel description or normative view of state–federal relations. The dust jacket quotations foster this expectation, saying that the book offers “a sophisticated new theory of federalism” and “a provocative new conception of federalism.” It does not do that, for political scientists began studying and theorizing increasingly concurrent governing arrangements decades ago (see, e.g., Deil S. Wright, Understanding Intergovernmental Relations, 1978 and subsequent editions, and Robert P. Stoker, Reluctant Partners: Implementing Federal Policy, 1991). But Schapiro does propose a comprehensive, coherent judicial doctrine for deciding federalism-related cases—a set of instructions to judges on whether and how to decide cases involving competing state and federal claims to authority. He offers a compelling account of the negative consequences today for citizens, for state government, and for the federal government of continuing judicial attempts—exemplified, for example, in the Rehnquist Court's much discussed “federalism revival”—to draw lines between state and federal authority in cases such as United States v. Lopez (challenging the federal Gun-Free School Zones Act of 1990) and United States v. Morrison (challenging the federal Violence Against Women Act of 1994).
Although the “line drawing” enterprise yields certain benefits within the legal system—uniformity, finality, and accountability—Schapiro argues effectively that allowing conjoint state and federal policymaking and rights adjudication usefully promotes plurality of viewpoints, intergovernmental dialogue, and redundancy of public policy and rights protections.
Schapiro's instructions to judges include the following: “Courts should apply a background presumption that state power and federal power can coexist” (p. 112). Courts hearing Commerce Clause cases should not “invoke categories such as economic and noneconomic as part of an effort to divide state and federal authority” (p. 121). Courts asked to rule on whether particular state laws are preempted by federal laws should not “broadly construe principles of preemption so as to forestall concurrent state and federal regulatory regimes” (p. 121). Judges who adopt a polyphonic approach “have less of a role as referees. Courts do not draw police lines between state and federal authority” (p. 121). He also believes that because state judges can and should interpret federal law and the federal Constitution (in the same way that federal judges can and should interpret state law), judges should not use inflexible, formalist notions of jurisdiction to justify refusals to hear cases at one level or another. Rather, Schapiro argues, multiple interpreters of constitutions and statues will reach better decisions over the long run.
The book's many strengths include its thorough canvass of the law review literature and the relevant federal and state case law. Chapter 2 offers an excellent, concise survey of the development of judicial federalism in the United States since the founding, placing complex federalism doctrines related to preemption and the dormant Commerce Clause into historical context to make clear exactly how judges' decisions in federalism cases have failed to keep up with real-world developments in the creation and implementation of public policy. Nonlawyers will learn a great deal about how state courts adjudicate federal law and constitutional protections and how federal courts do the same with state law.
Schapiro presents a convincing rebuttal of the idea that federalism is outmoded in a globalized and culturally converging America. To those who see the homogenization of American culture and the diminution of regional idiosyncrasies as evidence that there is little real state-by-state variation worth preserving today, he argues that it is precisely the growing national consensus on fundamental rights like racial and gender equality that makes concurrent national and state authority a boon to the promotion of such rights, rather than a barrier. For example, individuals who cannot find judicial relief at one level of government may be able to seek it at another, which the author sees as beneficial rather than confusing or arbitrary. On the whole, Schapiro's analysis is refreshingly nonideological, and it points out the ways that dualist judicial opinions harm both state and federal attempts to make public policy, regulate economic activity, and protect individual liberties.
The book's weaknesses include its narrow focus on the judiciary, which overemphasizes the importance of judges in determining the ways that states and the federal government jointly make and implement public policy today. If, as Schapiro argues, the American polity already operates polyphonically, are dualist judicial opinions really hampering policymaking and the protection of individual liberties? One can come away from the book wondering how different things would be if judges responded to the author's entreaties. After all, when the Supreme Court struck down the Gun-Free School Zones Act in Lopez, Congress promptly reenacted the statute with a minor correction to satisfy the Court's Commerce Clause–based objections. The actions of other branches of government may thus mitigate the harms of the lingering dualist approaches to deciding cases, even if they do so in theoretically untidy ways.
Finally, as a doctrine of judicial decision making, it is not clear that Schapiro's “instructions for judges” are specific enough to provide useful day-to-day guidance to the judiciary. For example, judges attempting to sort out conflicting state and federal claims to authority are urged to reach decisions that promote or are consistent with plurality, dialogue, and redundancy, but in practice, jurists might struggle to apply these broad theoretical concepts. Supreme Court justices would likely reach a wide variety of decisions that claim to promote one or more of these values but fail as workable doctrine for lower courts to apply.
On the whole, Polyphonic Federalism is recommended for those interested in understanding the theoretical bases of recent federalism jurisprudence and the costs to the country of these decisions. Those interested in public policy and implementation will find little new information here in terms of how the intergovernmental system works today, but they will likely find it eye opening to learn that the courts lag so far behind in incorporating intergovernmental realities into their decisions.
