What is Federalism?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Joe says:

    Concerns for emergency manager laws come to mind


    Federal courts play a modest role because the Constitution sets up a federal scheme in which states and the federal government have certain roles to play. Protecting “local interests” is not as clearly addressed though juries provisions are one way they are.

    As to Gov. Long, the power of patronage has been limited under later case law under 1A principles. The power of local self-government, including mini-declarations of independence (such as Dorr’s Rebellion in Rhode Island) raises various interesting thoughts of the reach of republican government etc.

  2. Michael Teter says:

    This should make for an interesting article, Gerard. As an initial take, I’m wondering whether federal recognition of a right to local government might interfere with states’ rights. After all, in the example you gave about Huey Long, federal recognition of a right to local government would have limited the state’s ability to do what it wanted with regard to centralizing state authority. Do you anticipate any problem relying on the Tenth Amendment as a source of this local right that results in imposing limits on state power?

  3. Sam Bagenstos says:

    I wonder what you think of David Barron’s take on these issues in his Penn Law Review piece from a dozen years ago. Or Feeley & Rubin in their federalism book of a few years back. Both seem quite relevant to your project.

  4. Gerard Magliocca says:


    Thanks for mentioning these. They are in my stack of summer reading!

  5. nidefatt says:

    The jury is not related to local government, it is related to a guarantee that decisions will be made by one’s cohort. This is, as has been stated over and over, a check on all the branches of government, directly, by the people. As simple as the vote. A vote which the Constitution does NOT guarantee.

    You stretch the Constitution too far, and you are conflating a check, based on a millennium old understanding of juries from Solon and Athens, with local government. The Constitution has no position on local government directly, though it was clearly born from the concept that a local government would compete with county and state an whatever else. Whether you can bind that understanding into say the due process clause is dubious to say the least. Fact is, you have a massive hurdle trying to get past current Supreme court precedent declaring that the truly local is not of national concern. While that ruling may not have been a direct comment on the concept of local government’s protection, certainly the idea that the Constitution reaches into a State and dictates protections of local government DOES breach that wall.

  6. Brett Bellmore says:

    I see no contradiction between saying that what Long did wasn’t ok, and saying that it, none the less, was not a federal matter. If federalism means anything, it means that some concerns of real importance are properly matters for the states. Saying that they are state concerns does not diminish their importance.

  7. Kirsten says:

    I think you have some distinguished fellow-travellers who might help motivate the project. Hannah Arendt, for example, often lamented the failure of the US constitution to accord independent constitutional status to localities. Jefferson also identified this as a major deficiency of the US constitution.

  8. Justin says:

    If you find yourself persuaded by Richard Briffault’s point that wealthy suburban towns benefit the most from local autonomy while large and poor cities are so financially intertwined with the state that formal legal autonomy does not protect them, then arguing for a federal protection of local autonomy would be to consciously advocate increasing the inequality between wealthy suburbs and poor core cities. It seems like this might be in tension with other, more established, federal constitutional aims, such as equal protection.