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Federalism and Moral Disagreement

By Guido Calabresi & Eric S. Fish. Full text here.

States form federalist unions when they want to align for economic or security reasons in spite of fundamental moral disagreements. By decentralizing policy-making authority, federalism allows such states to enjoy the benefits of union without being made to live under laws their citizens find immoral. But such federalist compromises are frequently unstable, because one part of a union will sometimes seek to impose its strong moral views on the whole. When this happens, conflict and, especially when the central government is weak, secession may follow. This Article analyzes situations where federalist political unions risk failing and falling apart because of such moral conflicts. It focuses in particular on the American civil war and the contemporary politics of the European Union. It also considers how federalism operates in normal, but morally charged, politics, looking at the institutional and strategic dynamics at work in conflicts over segregation, abortion, religious freedom, marriage, capital punishment, and other value-laden questions.