Federalism and Civil Rights: Complementary and Competing Paradigms

Until the Nixon Administration, federalism was not talked about much in the United States in the post-New Deal period and was not taken seriously as an intellectual matter. Increasingly, however, federalism has become an important domestic' and a critical worldwide issue. It may not be an exaggeration to say that federalism has indeed become the pervasive legal/political issue around the world. In this Article I will make four points.

First, by way of background and overview, I will conclude that the goal of federalism is and should be to encourage and facilitate geographically-based political autonomy without placing at risk the interests of minorities within those autonomous areas. Second, I will examine federalism as a civil rights paradigm. My thesis is that federalism, as a political principle and as an institutional structure, is an important form of decentralization in decision making in the cause of autonomy, democracy, and freedom. There is, therefore, an essential complementarity between the principles of federalism and traditional principles of civil rights.

At the same time, there is an inherent tension between those principles. The traditional civil rights paradigm protects individual liberties by resort to universalistic principles such as equal treatment regardless of race, religion, or gender. Federalism may protect minorities based not on universalistic norms, but upon ascriptive criteria such as geography or ethnicity