This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal actors in the vertical-federalism context. Indeed, at the margins between state and federal authority, executive and legislative authority, and even judicial and political authority -- inevitable zones of overlap and spillover emerge, where interpretive choices must be made. The operative constitutional question then becomes who is best positioned to make these interpretive choices. Huq's analysis of institutional bargaining along the horizontal separation-of-powers dimension adds dimension to an emerging literature on negotiated structural governance more generally. Previously predominated by vertical separation-of-powers analyses in the federalism literature, this new wave of bargaining-literate scholarship emphasizes the usefulness and inevitability of multilateral bargaining as an alternative for allocating constitutional authority in circumstances where unilateral judicial or statutory allocation is suboptimal at best -- and counterproductive at worst. Thematic among these new works is the idea that the Constitution does not resolve every structural question, and that certain unresolved structural dilemmas are most capably resolved by negotiation among legislative and executive actors at the local, state, and national levels. Different authors provide different pieces of the new theoretical justification for judicial deference to politically negotiated governance, notwithstanding the Supreme Court's simultaneous revival of judicially enforceable constraints in many of the same contexts. This essay reviews the unfolding literature on the negotiation of structural governance, analyzing points of conversion and issues of ongoing debate. Overall, scholars of negotiated governance find that bargaining is inevitable because the text of the Constitution cannot account for every possible ambiguity. Moreover, they conclude that political bargaining to resolve ambiguity is valuable when the required decisionmaking does not match the circumscribed skillset of judicial interpreters. Most are skeptical about the value of judicial review as current Supreme Court doctrine prescribes it, but -- and in contrast with previous scholarship emphasizing political safeguards -- many allow for some judicial role to police the most foreseeable harms associated with political bargaining. The essay concludes with thoughts about structural governance issues warranting further scrutiny in the next iteration of the discourse.

Federalism and the Tug of War Within explores how constitutional interpreters reconcile the competing values that underpin American federalism, with real consequences for governance that require local and national collaboration. Drawing examples from Hurricane Katrina, climate governance, health care reform, and other problems of local and national authority, author Erin Ryan demonstrates how the Supreme Court's federalism jurisprudence can inhibit effective inter-jurisdictional governance by failing to navigate the tensions within federalism itself. The Constitution's dual sovereignty directive fosters an ideal set of good governance values, including checks and balances, accountability, local autonomy, and local and national synergy, that are nevertheless in constant competition. This inherent "tug of war" is responsible for the epic instability in the Court's federalism jurisprudence, but it is poorly understood. With new conceptual vocabulary to wrestle with old dilemmas, Ryan traces the development of federalism's tug of war, and proposes innovations to manage judicial, legislative, and executive efforts with more focus. Her analysis clarifies how the tug of war is already mediated through balancing, compromise, and negotiation. She proposes a Balanced Federalism model that mediates tensions on three separate planes: fostering balance among competing federalism values, leveraging the functional capacities of the three branches in interpreting federalism, and maximizing the wisdom of both state and federal actors in so doing. The new framework better harmonizes values that-though in tension-have made the American system of government so effective and enduring.

This book examines bargaining in the federal system from the perspective of a single state, New York. The central theme is mutual dependence under federalism, a dynamic relationship between states and the national government. Case studies are presented that focus on New York as influencer of, and reactor to, federal policies in the 1970's and 1980's. Cases of influence include New York's efforts to secure loan guarantees for New York City in 1975 and 1978, and to retain state and local tax deductions in the Tax Reform Act of 1986. Cases of reaction involve New York's responses to the Reagan budget cuts of 1981 and to the siting of a Superconducting Supercollider near Rochester. The first book on American federalism written from the perspective of a single state, Bargaining Under Federalism makes a unique contribution to our understanding of the workings of federalism.

If federalism is about protecting the states, why not listen to them? In the last decade, the Supreme Court has reworked significant areas of constitutional law with the professed purpose of protecting the dignity and authority of the states, while frequently disregarding the states'' views as to what federalism is all about. The Court, according to the states, is protecting federalism too much and too little. Too much, in striking down federal law where even the states recognize that a federal role is necessary to address a national problem. Too little, in inappropriately limiting state experimentation. By listening more carefully to the States, the Supreme Court could transform its federalism jurisprudence from a source of criticism and polarization to a doctrine that should win broad support from across the political spectrum. In this important book, six distinguished authors redefine federalism and reaffirm Justice Louis Brandeis's vision of states and localities as the laboratories of democracy.

Classic Books Library presents this brand new edition of “The Federalist Papers”, a collection of separate essays and articles compiled in 1788 by Alexander Hamilton. Following the United States Declaration of Independence in 1776, the governing doctrines and policies of the States lacked cohesion. “The Federalist”, as it was previously known, was constructed by American statesman Alexander Hamilton, and was intended to catalyse the ratification of the United States Constitution. Hamilton recruited fellow statesmen James Madison Jr., and John Jay to write papers for the compendium, and the three are known as some of the Founding Fathers of the United States. Alexander Hamilton (c. 1755–1804) was an American lawyer, journalist and highly influential government official. He also served as a Senior Officer in the Army between 1799-1800 and founded the Federalist Party, the system that governed the nation’s finances. His contributions to the Constitution and leadership made a significant and lasting impact on the early development of the nation of the United States.

This symposium piece distills a few important points from my previous research about the need for negotiated governance and the options for accomplishing it--including Negotiating Federalism (https://ssrn.com/abstract=1583132), which identified the pervasive use of intergovernmental bargaining as a tool for dealing with jurisdictional uncertainty; FEDERALISM AND THE TUG OF WAR WITHIN (https://ssrn.com/abstract=1991612), which folded the concept of negotiated governance into a general theory of Balanced Federalism, exploring how contrasting federalism values are managed by various means of consultation, competition, and collaboration; and Environmental Federalism's Tug of War Within, (https://ssrn.com/abstract=2532687), the closing chapter to an environmental federalism book, in which I applied Balanced Federalism theory to bridge the collection's analyses of different areas of environmental law. Drawing from this body of work, this conversational essay draws out two separate themes, digesting the implications of negotiated federalism for: (1) administrative environmental governance; and (2) American federalism in general, using environmental law as a substantive laboratory to demonstrate the challenges in American federalism that lead us toward negotiated governance in all fields. Part I thus begins by exploring why environmental law seems always at the epicenter of federalism controversy--why it is, as I have previously called it, the “canary in federalism's coal mine.” In Part I, I will ask why environmental controversies become so intense that they require negotiated resolution, and I will suggest that it has to do with both the nature of environmental problems specifically and the nature of American federalism itself. Part II considers how the nature of American federalism itself is also responsible for the dilemmas that lead us toward negotiated resolutions. Federalism, after all, is a strategy for good governance--a means of accomplishing the underlying good governance values that the Constitution envisions, and for coping with the inevitable values conflicts identified in Balanced Federalism. Part II reveals how unresolved constitutional issues foment jurisdictional uncertainty, encouraging the use of negotiation to mediate multiscalar governance dilemmas. It considers how state-federal bargaining is not only a rational means of coping with uncertainty, but deployed effectively, a wise means that confers benefit up and down the jurisdictional scale. Part III brings this conversation about federalism's underlying values clash back to environmental law, and the innovative technologies of multiscalar governance that have evolved there. It observes how environmental law has responded to federalism's challenge at the structural level, experimenting with various means of asymmetrically allocating regulatory authority to encourage different valences of consultation, negotiation, collaboration, and competition. It shows how different approaches to cooperative federalism can be adapted to procure distinct mixtures of local and national input. I conclude with reflections on the critical insight with which the phenomenon of negotiated federalism should leave us: despite centuries of rhetoric to the contrary, federalism need not be, and indeed never has been, a zero-sum game.

Abraham Lincoln worried that the 'walls' of the constitution would ultimately be leveled by the 'silent artillery of time.' His fears materialized with the 1913 ratification of the Seventeenth Amendment, which, by eliminating federalism's structural protection, altered the very nature and meaning of federalism. Ralph A. Rossum's provocative new book considers the forces unleashed by an amendment to install the direct election of U.S. Senators. Far from expecting federalism to be protected by an activist court, the Framers, Rossum argues, expected the constitutional structure, particularly the election of the Senate by state legislatures, to sustain it. In Federalism, the Supreme Court, and the Seventeenth Amendment Rossum challenges the fundamental jurisprudential assumptions about federalism. He also provides a powerful indictment of the controversial federalist decisions recently handed down by an activist U.S. Supreme Court seeking to fill the gap created by the Seventeenth Amendment's ratification and protect the original federal design. Rossum's masterful handling of the development of federalism restores the true significance to an amendment previously consigned to the footnotes of history. It demonstrates how the original federal design has been amended out of existence; the interests of states as states abandoned and federalism left unprotected, both structurally and democratically. It highlights the ultimate irony of constitutional democracy: that an amendment intended to promote democracy, even at the expense of federalism, has been undermined by an activist court intent on protecting federalism, at the expense of democracy.

In this lively historical examination of American federalism, a leading scholar in the field refutes the widely accepted notion that the founding fathers carefully crafted a constitutional balance of power between the states and the federal government. Edward A. Purcell Jr. bases his argument on close analysis of the Constitution’s original structure and the ways that structure both induced and accommodated changes over the centuries. There was no clear agreement among the founding fathers regarding the "true" nature of American federalism, Purcell contends, nor was there a consensus on "correct" lines dividing state and national authority. Furthermore, even had there been some true "original" understanding, the elastic and dynamic nature of the constitutional structure would have made it impossible for subsequent generations to maintain any "original" or permanent balance. The author traces the evolution of federalism through the centuries, focusing particularly on shifting interpretations founded on political interests. He concludes with insights into current issues of federal power and a discussion of the grounds on which legitimate decisions about federal and state power should rest.

In 2005, Iraq drafted its first constitution and held the country’s first democratic election in more than fifty years. Even under ideal conditions, drafting a constitution can be a prolonged process marked by contentious debate, and conditions in Iraq are far from ideal: Iraq has long been racked by ethnic and sectarian conflict, which intensified following the American invasion and continues today. This severe division, which often erupted into violence, would not seem to bode well for the fate of democracy. So how is it that Iraq was able to surmount its sectarianism to draft a constitution that speaks to the conflicting and largely incompatible ideological view of the Sunnis, Shi’ah, and Kurds? Haider Ala Hamoudi served in 2009 as an adviser to Iraq’s Constitutional Review Committee, and he argues here that the terms of the Iraqi Constitution are sufficiently capacious to be interpreted in a variety of ways, allowing it to appeal to the country’s three main sects despite their deep disagreements. While some say that this ambiguity avoids the challenging compromises that ultimately must be made if the state is to survive, Hamoudi maintains that to force these compromises on issues of central importance to ethnic and sectarian identity would almost certainly result in the imposition of one group’s views on the others. Drawing on the original negotiating documents, he shows that this feature of the Constitution was not an act of evasion, as is sometimes thought, but a mark of its drafters’ awareness in recognizing the need to permit the groups the time necessary to develop their own methods of working with one another over time.