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This Essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, roles they play by virtue of being autonomous policymakers outside the federal system. A second vision is offered by scholars of cooperative federalism, who argue that in most areas states serve not as autonomous outsiders, but supportive insiders – servants and allies carrying out federal policy. Legal scholarship has not connected these competing visions to consider how the state's status as servant, insider, and ally might enable it to be a sometime dissenter, rival, and challenger. The literature has not developed a vocabulary for describing how states use regulatory power conferred by the government to resist federal policy, let alone a full account of the implications of this practice. It has thus neglected the possibilities associated with what we call "uncooperative federalism." In this Essay, we provide an initial descriptive and normative account of this undertheorized aspect of our federalism. We also explore what a strong commitment to uncooperative federalism would mean for the doctrines on commandeering and preemption, offering some counterintuitive conclusions about the ways in which weakening the protections for state autonomy might push states to engage in stronger forms of dissent.

It's necessary to begin with considering the sort of judicially enforced federalism rejected in Garcia and to consider why the Court rejected it. According to this view of federalism, the Constitution leaves certain substantive affairs exclusively to the states, and what matters is making sure that states can regulate these without federal interference. So long as this domain is protected, the political significance of states is assured and federalism is secure. The federal government can, if it chooses, take charge of all those matters as to which state and federal authority is concurrent-though Congress will find this harder to accomplish when faced with the states' enhanced ability to muster political support. In any event, the key to a viable federalism is said to be the guarantee of judicially-enforced substantive limits on national authority. We begin with this approach to federalism because, while courts may not resolve every conflict between state and national authorities, they can simplify such problems by delimiting the sphere in which power is allocated through politics. And, indeed, many commentators believe the Supreme Court was wrong to abandon the task of defining a protected sphere of exclusive state jurisdiction.16 After the surrender of 1937 and after Garcia, they say, federalism is "dead," Congress is free to run berserk, and it's only a matter of time until the states lose what little political clout they have left and are rendered superfluities by a relentless federal juggernaut. We can say one thing for sure: The problem with judicially enforced federalism is not, as Justice Blackmun suggests in Garcia, that the Framers didn't want courts enforcing limits on national authority. Making statements about the Framers' intent is, of course, always hazardous. Because the relevant decision makers were the people who ratified the Constitution,17 deciding what the Constitution was intended to mean is as quixotic as interpreting election returns-- too many people chose among too few options for too ...

Many political issues like abortion, gay marriage or assisted suicide are strongly contested because individuals have preferences not only over their own choice but also about other individuals? actions. How should society decide these issues? This paper compares three regimes (centralization, decentralization and federalism) in an economy where individuals choose their residence and vote over a single-dimensional regulatory policy at the regional and national level. The main results are: (i) A move from decentralization to federalism, called moral federalism, is welfare improving behind the veil of ignorance if and only if centralization dominates decentralization, and (ii) for the group that favors a restrictive policy moral federalism is the more attractive the smaller its group size (subject to being the majority group), the larger the suffering from a given policy, and the smaller the regions? weight in determining the federal policy limit. The results are consistent with the Bush administration's attempt to restrict liberal policy choices at the state level after its narrow election victory in 2000.

This article provides a roadmap for what gender scholarship offers scholars of federalism. It argues that applying a gender perspective can enrich the field by introducing new concepts, questions, hypotheses, and debates. Gender scholarship's focus on power and change will also make theorizing about federalism more dynamic. The article shows how the "gendering democracy" project's indices will help scholars measure federalism's role in women's continuing political marginalization and incorporation. It also highlights the importance a gender perspective confers on social movements, social policies, and normative issues. Finally, the article speculates that gender analysis could promote a new research theme exploring how different state architectures affect and are affected by interactions between territorial and nonterritorial interests and identities. Adapted from the source document.