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I am not a member of the Federalist Society, but I am a mem- ber of the federalism society. Much of my work has been de- voted to making the progressive case for federalism, even the nationalist case for federalism.1 That work addresses the con- cern that all progressives have about federalism: whether it harms racial minorities and dissenters, the two groups that progressives worry most about in a democracy. Progressives will not be convinced of federalism's merits without an answer to that question. But federalism's proponents typically offer little more than an apologetic sidebar on the race question and they do not have all that much more to say on the dissent side. My work has thus been devoted to showing that federalism and its homely cousin, localism, play a crucial role in promot- ing the political and economic integration of racial minorities and in generating dissent and democratic debate.
I assume, however, my role is to provoke. By way of provo- cation, I want to offer a friendly suggestion to those who be- lieve, as I do, in federalism and the important role that states play in our democracy. My suggestion is directly related to the subject of our panel: the Supreme Court's recent Affordable Care Act decision2 and the brouhahas surrounding it.
To put the point sharply, the Federalist Society may be the tribe of lawyers that cares the most about state power, but its members are thinking about it in the wrong way. At the very least, they are missing something crucial. That is because most of the Society's members are ignoring what may be the most important source of state power in the twenty-first century, one that will only become more salient as time goes on.
Most lawyers who care about state power are deeply inter- ested in the battle between the sovereigntists and the process federalists. Although that battle is far from over, it is coming perilously close to degenerating into the intellectual equivalent of the "great taste, less filling" debate. Those on both sides of the divide have spent a great deal of time worrying about whether it is state sovereignty or state autonomy that matters, whether we need de jure judicial protections for state power or whether...