Heather Gerken’s Progressive “Federalism All the Way Down”

Leon Neyfakh of the Boston Globe has a detailed article discussing Yale Law School Professor Heather Gerken’s outstanding work developing a new “progressive” theory of federalism:

Election reformers tend to shudder at the patchwork inconsistency with which the United States approaches its national elections, and they regard the process as a woefully disorganized mess. Yale Law School professor Heather Gerken takes a different view. When she looks at all the ways in which Americans vote, she sees a national conversation about how best to hold an election—one that shouldn’t be squelched, but harnessed to improve voting for everyone….

Behind Gerken’s Democracy Index lies another, bigger argument about how a society should work: When properly leveraged, the disorder and chaos that arises in a country as big as ours can be forces for progress and reform. This principle has defined not only Gerken’s thinking about elections, but a range of iconoclastic, provocative arguments that have launched a new conversation in the legal world about how, exactly, American power should be distributed. And Gerken herself has emerged in recent years as one of the most closely watched young stars in the legal academy….

Gerken has advanced a vision of governance unusual for someone whose political convictions are firmly liberal. Unlike other progressives, who instinctively dig in against conservative ideas of federalism, she wants local decision-making bodies to be given more power, and more opportunity to rebel against federal policy that doesn’t serve their interests….

What Gerken wants to see instead is a decentralization of government—what she calls “federalism all the way down”—in which local authorities can stand up for their own beliefs, even when implementing policies imposed from above. That, in Gerken’s view, is what happened when San Francisco’s mayor, Gavin Newsom, made it legal for gay people to get married in his city; it’s also what happened when the city council of Hazleton, Pa., passed a law that discouraged people from renting and hiring illegal immigrants. Gerken wants such acts of defiance to be seen as part of an honorable tradition of dissent, she said—“not as something that’s lawless or parochial.”

Gerken’s faith in local power puts her somewhat at odds with most of her fellow progressive democrats, and seems instead to ally her with Republicans who champion states’ rights and oppose federal intrusion. But Gerken doesn’t quite see it that way: What’s needed, in her view, is not more state sovereignty, but rather that all sorts of smaller authorities enjoy the leeway to push back on laws handed down to them from up above, thus forcing an urgent and consequential debate about their merits. “She feels like the way we make progress is often not from only listening to dissenters, but also giving them a chance to show us that they might be right about things,” said Ernest Young, a professor at Duke University School of Law.

Gerken’s most recent article explaining why federalism can benefit minorities is available here. I discussed Gerken’s work in more detail in this post, including offering some criticisms and extensions. In this article, I argued that Gerken’s “all the way down” theory helps justify judicial enforcement of constitutional property rights.