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Debating Democracy's DiscontentEssays on American Politics, Law, and Public Philosophy$
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Anita L. Allen and Milton C. Regan

Print publication date: 1998

Print ISBN-13: 9780198294962

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0198294964.001.0001

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Federalism as a Cure for Democracy's Discontent?

Federalism as a Cure for Democracy's Discontent?

(p.307) 23 Federalism as a Cure for Democracy's Discontent?
Debating Democracy's Discontent

Mark Tushnet

Oxford University Press

Federalism holds out the possibility of mutually profitable economic and cultural exchanges that gradually erode differences over fundamental interests, and that, given enough time, people may come to see that the benefits of those exchanges outweigh the incremental changes in fundamental interests that accompany each exchange, until the incremental changes accumulate into a larger transformation in fundamental views. The Court rejected the possibility of using centralized national power to protect religious communities as locations of value pluralism, once in 1990 when it abjured the use of its own centralized authority, and again in 1997 when it barred Congress from using its authority. Professor Sandel sees federalism as a valuable institution not because it promotes or protects value pluralism as such but because it offers the possibility of a transformation of values from those we do not approve into universalist values of which we do approve. The Declaration of Independence and the Constitution’s Preamble set the nation on a course to realize something that can be summarized somewhat inaccurately as a set of universal human rights justified to other people by reason. This account makes American universalism distinctive, to the extent that it connects that universalism to a project with roots not in the abstract philosophical theorizing that Professor Sandel argues cannot motivate appropriate citizen behavior, but in the Declaration of Independence, the Constitution, and more generally in the working out of the project of American constitutionalism through the course of United States history.

Keywords:   centralized, changes, Declaration of Independence, exchanges, federalism, fundamental, preamble, reason, religious, universalist

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