William N. Eskridge

A political theory of federalism

Multi-ethnic nations have sometimes found decentralized political arrangements attractive. Such arrangements permit peoples who may differ greatly in their conceptions of a good public life to develop and maintain their own separate communities, within the context of a larger and more powerful political economy. Ethnically more homogeneous nations such as the United States, at the time of its founding, or Australia today, often find decentralized modes of policy formation and administration convenient as well. In such nations, geographic distances, diverse economies, regional disparities in preferences, and variations in local historical experience can make decentralized policy-making institutions more efficient and more responsive than national ones. Federalism, the division of sovereign authority among levels of government, can be seen as a way of stabilizing, or making credible, decentralized governmental structures. This paper examines whether practical federal arrangements can sufficiently insulate governmental decisions at all levels to maintain a stable and credible decentralized political structure.

Response to Daniel Carpenter's review of A Republic of Statutes: The New American Constitution

We appreciate Dan Carpenters thoughtful assessment of our book and are eager to respond to his reflections about the political theory of the republic of statutes. He is right that we did not discuss some highly entrenched statutory schemes that might well deserve small-c constitutional status as superstatutes. Although we do treat the Defense of Marriage Act as a superstatute in our chapter on the antihomosexual constitution and its disentrenchment, we might have included a chapter on the Food, Drug and Cosmetics Act of 1938 (along with the many subsequent amendments that helped shape the drug enforcement regime we have today) if we had as many original things to say about the Food and Drug Administrations (FDAs) administrative constitutionalism as Carpenter did in his book. It would have been a big chapter, too.