Federalism is a distinctive form of constitutional rule but one that has largely been neglected by both political and constitutional theory. Existing accounts of federalism tend to focus almost exclusively upon its institutional manifestation. What is lacking is an account of the common conceptual underpinnings that unite these various institutional forms within the genus of one constitutional idea. In this chapter Stephen Tierney argues that the core idea of federalism can only be arrived at by way of constitutional theory. Constitutional theory explains both how and why law is used to manage political power. Federal constitutions manage and transform political power for a discrete purpose that is fundamentally distinguishable from other constitutional forms. This chapter contends that federalism must be addressed as a specific genus of constitutional government for the modern state which, in the act of constitutional union, gives foundational recognition and accommodation to the state’s constituent territorial pluralism. The purpose of the federal constitution is to maintain the foundational relationship between pluralism and union through the creation and reconciliation of different orders of government. This marks a significant fork in the road between federal and unitary constitutionalism, not just in institutional terms but at the most fundamental level of constitutional identity and legitimacy.

Climate change, it is often said, is the greatest challenge of our time. As a global phenomenon with a long temporal reach, the impacts of climate change amplify challenges already faced across social, political, economic and ecological spheres. Similarly, constitutional theory is not immune from the impacts of climate change. Yet scholarly engagements between constitutional theory and climate change have thus far been targeted and disparate. This chapter represents an attempt to face up to the challenge of climate change from the perspective of constitutional theory. It takes seriously the discourse of “climate emergency” to argue that emergency is a theoretically defensible framing of the problem. Using the rule of law, rights and federalism as three examples of the challenges that climate change poses for constitutional theory, it highlights some strengths and limitations of existing literatures on these three concepts. Ultimately, it shows that the climate emergency points us to a theory of constitutionalism that builds on these strengths, responds to these limits and provides a path forward for thinking through the role of constitutional theory in a climate-disrupted world.

The witholding of equal public recognition of national, cultural and language identity often causes severe anguish to sub-state peoples and sometimes leads to war. For this reason, political philosophy has an important responsibility to think through the moral grounds and the appropriate means of recognition. This chapter draws a moral map of the recognitional debate, outlining three normative camps: nonrecognition, monorecognition, and recognitional pluralism. I argue for recognitional pluralism, in two steps. The first step establishes, contra nonrecognition, that nations, cultures and languages are recognition-worthy, and that this is so for two reasons: they give people access to cultural life-worlds, and they are sources of dignity. The second step builds the case for a pluralistic means of according public recognition. To do so, I argue, against monorecognition, that egalitarian recognition of life-world access and dignity is to be the driving principle. Within the pluralist camp, I argue for the principle of equal services, which implies that the state accords comparable cultural services to the cultural groups that share a state or territory. Examples of this can be found in equal language rights regimes, egalitarian public holiday systems, as well as in multinational federalism.

Tribes operated governments since time out of mind. Tribes developed institutions to manage their lands, people, and resources. While European arrival brought many hardships, tribes adapted, but eventually, tribes were forced onto reservations. Tribes endured attempts to exterminate their existence as distinct governments and cultures. Despite fifty years of the federal government’s tribal self-determination policy, tribes remain subject to excessive federal constraints on their sovereignty. Hence, tribes continue to struggle with crime and poverty. Tribes need greater autonomy to address the problems in their communities, and this requires treating tribes as nations again.

When tribes are allowed to operate as governments, states will push back because states fear tribal competition. In particular, states are concerned tribes will offer lower tax rates and other legal incentives to attract businesses to their land. This is a misguided concern. States already craft numerous exceptions to their laws, often designed specifically for their favorite corporations; plus, the source of state power over tribes is lacking. Apart from this, tribal development benefits states. New jobs in Indian country often employ non-Indians who purchase goods and pay taxes off reservation. Thus, tribal sovereignty also serves as a shield against state protectionism and promotes economic opportunities that benefit everyone.

Tribes struggle with many socioeconomic problems, including poverty and crime. Though the United States claims to support tribal self-determination, tribes remain subject to unique, federally imposed constraints on their sovereignty. This book argues removing the federal limitations on tribal sovereignty is the key to improving life in Indian country.

The United States, despite its generally favorable rankings on international indices, has significant corruption problems. Those issues cannot be ignored, but neither should they be exaggerated or oversimplified. American corruption is not any one single problem: contrasts are apparent among the states, across regions, and at different levels of the federal system. Some are illegal, but other types are legal – or not clearly against the law. While corruption is a significant issue in the context of law enforcement, race relations, environmental policy, and public health, its sources, consequences, and context differ from one sector to the next. Inequalities along racial and class lines add further complexities and significantly affect the prospects of reform. Checking corruption and dealing with its consequences will be a matter not only of enacting and enforcing sound laws but of how well we govern ourselves within a large, complicated, multi-level, but fundamentally democratic constitutional framework.

The question of how corrupt the United States is has no single answer. After all, we lack an accepted definition of corruption and cannot directly measure what is usually a clandestine or contested kind of activity. Some corruption is clearly illegal, but other activities widely seen as corrupt, or corrupting, are legal – in some cases, constitutionally protected. There are different categories of corruption – at a minimum, it is important to distinguish between illegal and legal corruption – and the country is comprised of fifty different states, each (as Daniel Elazar has argued) a civil society in its own right, and each with multiple institutions where corruption might take root. Finally, the causes and consequences of corruption can differ significantly from one policy area or economic sector to the next. In this chapter, we lay out our agenda for analyzing American corruption, with an emphasis on the diversity of the federal system and the importance of looking carefully at different aspects of policy and politics.

Medical debt is the largest form of consumer debt in collections, with $88 billion recorded on credit reports, affecting roughly one in five US households. Medical debt pushes millions into financial distress and is exacerbated by harsh collection practices to garnish wages, seize assets, place liens on homes, and reduce creditworthiness. Concerned federal and state policymakers have pursued policies to protect consumers from medical debt.

Most federal medical debt policies are forms of public law – namely administrative requirements imposed by government on health care and consumer finance entities. Nevertheless, significant gaps in the federal public law of medical debt persist, leaving an important role for states, particularly in the creation of private enforcement actions for violations of state consumer protections against medical debt. States have created both public law and private law protections, prescribing standards for financial assistance, applying to a broader range of providers, barring certain collection actions, and empowering individuals to seek private remedies for violations.

Is medical debt better addressed at the federal or state level and using the tools public law or private law? The answer is all the above: Stronger national, public-law standards to guard against medical debt are critical, but federal policy should retain a vital role for what states do well – policy innovation and greater enforcement through private remedies. Preserving a meaningful role for states and private law in consumer protection policy enhances separation of powers and serves as a check against regulatory failure by federal public law solutions and the gutting of federal administrative and statutory authority.

This chapter begins with the evolution of American medicine from a “sovereign” self-regulating profession focused on direct patient service to a large industry that serves the social sector but that, because of its professional heritage, receives extensive public subsidies without equivalent public accountability. Next, the chapter identifies regulatory dynamics in American health care governance that structurally discourage movement from the prevailing, if dissonant, private law framework to one explicitly grounded in public law. The chapter concludes by highlighting the challenges and opportunities inherent in a private law approach to what is intuitively a public law domain.

Chapter 5 is comparative in nature and explores the enactment of legislation in two federal polities, namely the United States and Germany. The objective of this chapter is to highlight that while national legislative processes are dominated by party politics, the European legislative process is dominated by trilogues – to some extent, trilogues make up for the absence of a genuine party system at EU level. It is within and between political parties and trilogues, respectively, that positions are discussed, coalitions cemented, institutional interdependences managed, political differences solved, and compromise brokered. When legislative files eventually reach the floor of the competent legislative institutions, their fate is – most of the time – already sealed. This chapter aims at highlighting that leaving legislative and interchamber coordination to party structures is no more – and possibly less – democratically accountable than entrusting it to trilogues, especially in times of strong partisanship and grand coalitions.

This chapter traces the ways in which Hume’s ‘Idea of a Perfect Commonwealth’ responds not only to Harrington’s Commonwealth of Oceana (1656) but also to Montesquieu’s Spirit of the Laws (1748). The large federal constitution that Hume proposed at the end of his Political Discourses turns out to have as much in common with Montesquieu’s understanding of modern monarchy as it does with Harrington’s vision for an equal republic. Indeed, there is reason to suspect that Montesquieu’s criticism of Oceana in his chapter ‘On the English Constitution’ prompted Hume to devise his alternative version of Harrington’s commonwealth. Hume adapted Oceana’s framework for uniform electoral districts and tiers of representation to the spirit of commerce and competition that he and Montesquieu associated with modern Britain. The result was a state with ‘all the advantages of both a great and little commonwealth’.

Abolishing states would not be the end of the matter; the country’s leaders would have to make a number of fundamental secondary decisions. Someone would ultimately have to decide which of the essential functions currently performed by state government should be nationalized, which ones should be localized, and, as to the latter, how the various local functions are to be further distributed among the many different species of local governments – municipalities, counties, townships, special purpose districts, and unincorporated areas. Who should select the decision-maker? Decisions would also be needed as to the processes and responsibilities for replacing the states’ current roles in national elections, in supplying the bulk of the country’s judges, and in the constitutional amendment process. This chapter considers the options for filling those voids. In the process, it offers a portrait of what a unitary American republic might look like without state government.

This introductory chapter articulates the main thesis and summarizes the arguments that support it. It lays out the reasons that the thesis is important, describes what the book adds to the existing literature, explains some critical terms and concepts, and adds necessary disclaimers.

This chapter examines popular appeal to local Heimat as a site of political renewal in Cologne. It shows how democratically engaged localists advanced narratives of “Cologne democracy” and “openness to the world,” while replacing nationalist narrative of their region as a “Watch on the Rhine” with that of the Rhineland as a “bridge” to the West. Democratically engaged localists further argued that Heimat should be about promoting European unity and post-nationalist ideas of nation. Such groups constructed these narratives by pulling on useable local histories and reinventing local traditions. Such early democratic identifications, however, existed alongside major failures in democratic practice and frequent depictions of the Eastern bloc as an “anti-Heimat.” Emphasis on democratic local histories also aggravated failures to confront guilt for the Nazi past. Exclusion of newcomers also represented a significant challenge. More inclusively minded Cologners attempted to combat persistent exclusionary practices by arguing for “Cologne tolerance” as a local value and by insisting that a correctly understood Heimat concept should generate sympathy for the displaced.

This introduction outlines the main questions and debates which the book addresses, followed by an overview of the history of the Heimat idea and the study’s methodological approach. While scholars have looked at post-war cinematic and literary Heimat tropes, the book argues for more attention to Heimat as specific sites of home. On the question of the concept’s Germanness, it steers a middle path that recognizes how the history of German-speaking Europe has shaped the concept, while acknowledging its connection to broader questions about place attachment. Rather than positing a single “German” understanding across time and space, the work approaches discussions about Heimat as an evolving and contested discourse about place attachments and their relationship to diverse political and social issues. The introduction continues by outlining the book’s contribution to debates about West German democratization, reconstruction, post-war confrontation with dissonant lives, and expellee history. It concludes by outlining the book’s findings on the history of efforts to eliminate the concept in the 1960s and left-wing attempts to re-engage with Heimat in the 1970s and 1980s.