The emergence of Brexit and of President Donald Trump have prompted a significant rethink of federalism, sovereignty, and who should decide notions of community. In both cases, charismatic leaders stoked nationalist resentment and anti-globalist back lash against global, cosmopolitan elites. The implications for federalism, the principle of subsidiary, and law have been enormous. At this...
Brexit: Paradoxes of Community and Sovereignty
This paper will consider the process and substance of Brexit against the backdrop of federalism, broadly conceived in terms of power division and sharing between different levels of government. It will consider the strains placed on the Community project by Brexit, and the strains that have also been placed on conceptions of UK sovereignty by...
Brexit‘s Effect on State Architecture: Subsidiarity, Devolution, Federalism and Independence
In an earlier article, some years before the Brexit Referendum, I examined the current ‘architecture‘ of the British state, in particular the way in which governmental power was distributed among the nations of the United Kingdom. The theme of this chapter was to show how the continuing (and, as James Bryce argued, inevitable) tension between...
Interpretive Federalism
U.S. federalism interacts with commitments to democratic equality in complex ways. As a matter of current constitutional law and structure, the U.S. Congress is less “representative“ of the national polity as a whole — if representativeness is examined only from a one-person one-vote perspective — than each state legislature is with respect to its state...
We the People: These United Divided States
Focusing on U.S. federalism debates in the context of climate change and sanctuary jurisdictions, this paper argues that the federal government‘s approach to these inherent transnational concerns represents classic political market failures. Extending John Hart Ely‘s notion of addressing such failures – from Democracy and Distrust – the paper examines a dynamic overlooked by both...