Toward Political Safeguards of Self-Determination

The theorists of the political safeguards of federalism (primarily Herbert Wechsler, Jesse Choper, and Larry Kramer) contend that various features of the American political system are sufficient to protect the values of federalism, obviating the need for federalist judicial review. These theorists have identified constitutional features of the system (i.e., equal representation in the Senate) and extolled subconstitutional features (notably the strength of the major political parties) as guarantors of state prerogatives against the federal government. They have not, however, developed a substantial account of the reasons why state prerogatives need or deserve protection and how those reasons bear on the political safeguards theory. Advocates of judicial safeguards of federalism have offered various reasons for federalist judicial review. The most familiar and constitutionally salient reason is that vindicating the interests of state governments helps to preserve personal freedom. Unfortunately, the history of federalist judicial review demonstrates that, at the times of greatest conflict between federal and state authority, courts have asserted state prerogatives to undermine personal freedom. With that history in mind, I suggest state prerogatives are useful primarily for advancing two particular aspects of personal freedom. First, states afford citizens additional opportunities to create political structures and participate in government. Second, states can supplement federal regulation of the powerful private interests that threaten personal freedom in contemporary society. Both of these salutary consequences of federalism serve the value of political self-determination, a broad end toward which protection of state prerogatives is merely one means. Establishing political participation and supplemental regulation as the rationales for protecting state prerogatives will require a recalibration of the political safeguards theory. First, these goals do not justify states in opposing federal power but merely require states to supplement federal power. Thus, no political safeguard needs to aggrandize state power at the expense of the federal government. Second, the self-determination values suggest some features of the political system that theorists have extolled as political safeguards are actually counterproductive. Thus, legislatures and courts may need to reconsider how they manage the political system. The Supreme Court\u27s recent cases that advance the rights of the major political parties - California Democratic Party v. Jones, Timmons v. Twin Cities Area New Party, Arkansas Educational Television Commission v. Forbes, FCC v. Colorado Republican Federal Campaign Committee - provide the primary example. Those decisions, while desirable for the political safeguards of federalism, contravene the underlying value of political self-determination