Garrick B. Pursley

89 Texas L. Rev. 1365

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Two federalisms exist in the legal landscape: the federalism of the courts and federalism in practice.  The two are quite distinct.  This is the subject of Robert Schapiro’s Polyphonic Federalism, which Pursley reviews in this piece.  Schapiro, writes Professor Pursley, aims to explain the causes of the disconnect between these two federalisms and suggests ways to reconcile judicial conceptions with federalism in practice.

The current federalism regime of the courts is dualistic in nature—designed to defend a governmental regime of separate spheres of federal and state authority that no longer exists in the United States.  In practice, this separate spheres approach breaks down immediately, with the two levels of government often cooperating, sometimes clashing, but almost always interacting in one way or another in conducting their affairs.

There are two academic responses to this issue.  Under the “conventionalist” view, Pursley argues that because the Constitution is the supreme law of the land, adopted and continued in effect by acts of popular sovereignty, government practices simply must be invalidated if they violate it, regardless of their benefits.  The “compatibilist” response embraces these intergovernmental practices, arguing that they should be constitutionally permissible because of their instrumental benefits.  Pursley notes that Schapiro is a leading voice among the compatibilists, and Polyphonic Federalism is the first book-length defense of a general practice-based theory of federalism.  According to Schapiro, federalism doctrine should not focus on drawing lines between state and federal government, but on how to harness the dynamic interaction of these different realms.

Pursley’s review attempts to clarify and assess Schapiro’s effort to build a general normative case for compatibilism.  The resolution of the debate between the two academic views will have important ramifications for the different areas of law and policy in which interactive federalism practices are employed today.  By clarifying the positions and stakes, Pursley hopes to advance the debate.  He first situates Schapiro’s view within the debate and discusses the compatibilists’ shared descriptive thesis. He then attempts to identify Schapiro’s normative thesis on behalf of compatibilism by evaluating several possibilities.  He next provides two conventionalist rejoinders.

Pursley concludes that it is our decision rules that need modifications.  Deciding on the proper modifications involves practical reasoning, he writes, not abstract theorizing.  In this respect, Polyphonic Federalism is a formidable contribution.