Legal Commentary

For some reason, I am driven every year to be among the first to spot and promote the new Supreme Court issue of the Harvard Law Review and its Foreword article.  As far as I can tell, it's not up yet on the Harvard Law Review website, which posts PDFs of its full issues; but it is available now on Westlaw.  And so I commend to readers Heather Gerken, author of Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4 (2010).  Gerken argues that we should "orient constitutional theory around federalism-all-the-way-down--around voice rather than exit, integration rather than autonomy."  Here is her roadmap paragraph:

Part I argues that even as scholars reject a sovereignty account, sovereignty continues to shape the way we think about ?Our Federalism.? Part II shows that focusing on minority rule without sovereignty would push federalism all the way down to the special purpose institutions that constitute states and cities. Part III argues that orienting federalism around federalism-all-the-way-down would expand our understanding of how the center and periphery interact, helping us to develop an account of the power of the servant to compete with our existing account of the power of the sovereign. Part IV suggests that if we shed the assumption that minority rule must be accompanied by sovereignty, we can build a more convincing nationalist account of ?Our Federalism.?

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I look foreword -- sorry, forward -- to reading the whole thing.  Forewords (on whose history one should read Mark Tushnet's terrific piece on the "Project of the Harvard Forewords" in Constitutional Commentary from the mid-1990s) often serve to consolidate and advance emerging trends in constitutional law, and this one seems to do the same thing.  Its focus on the nature, scope, and limits of sovereignty, on the role of "localism" of various kinds in constitutional law and theory, and on the potentially salutary role of intermediary institutions captures a number of prominent lines of direction in current constitutional scholarship.  I loosely include myself among those writing in this area, and Gerken has a section (which I haven't read yet) on the relationship between "federalism-all-the-way-down" and the First Amendment.  In Larry Solum's words, "read the whole thing."