Cool Federalism and the Life Cycle of Moral Progress
This chapter lays out the broadest implications of a conception of constitutional law as a shared enterprise conducted within a federal system. It explores the wider, systemic significance of subnational constitutional law by examining the large-scale movements of the mechanism by which dual constitutionalism, and state-led, rights-based constitutionalism in particular, generates and enfolds moral norms. One of the benefits of a federal system is its capacity to accommodate and even to encourage moral progress. The chapter envisions this as a continual process in which moral experimentation occurs in a small number of vanguard states, propagates itself within the system through the accumulation of experience and the gradual alteration of public opinion, and finally consolidates itself by migrating to the national level, where formerly cutting-edge moral norms are incorporated, constitutionalized, and then imposed on straggler states to create a new—but only temporary—uniformity.
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