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New Frontiers of State Constitutional LawDual Enforcement of Norms$
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James A. Gardner and Jim Rossi

Print publication date: 2010

Print ISBN-13: 9780195368321

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780195368321.001.0001

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“States of the Same Nature”: Bounded Variation in Subfederal Constitutionalism

“States of the Same Nature”: Bounded Variation in Subfederal Constitutionalism

Chapter:
(p.25) 3.States of the Same Nature”: Bounded Variation in Subfederal Constitutionalism
Source:
New Frontiers of State Constitutional Law
Author(s):

Jacob T. Levy (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195368321.003.0003

This chapter provides an account of variation in constitutional values and choices within a federation, grounding it in a conception of federalism as a pragmatic alternative to competing conceptions of the nature of constitutional choice. In what the chapter calls the moral-realist tradition, constitutional similarity ought to be the norm because the purpose of a constitution is to operationalize principles of justice that are at bottom universal. In contrast, in the democratic-positivist tradition, constitutional divergence is unremarkable because constitutions embody little more than the contingent choices of one political association or another. Federalism charts a middle course. By granting some autonomy to subnational units, federalism permits contingent choice and preference satisfaction, yet by subordinating subnational choices to national ones, it sets collectively determined limits on the permissible range of those choices—a kind of “localized universalism”, one might say, that results in a so-called “bounded variation”. It is argued that the benefits of such an arrangement include experimentation without instability, diversity without alienation, and the institutionalization of feasible change—although this need not always imply “progress” of a moral or any other kind.

Keywords:   constitutions, federalism, constitutional divergence, constitutional values, legal experimentation, moral progress

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