Deliberative Federalism

Abstract

The relationship between federalism, democracy and human rights has long been the subject of intense debate.1 Much of the focus of this debate has been on the United States, in part because of the international influence of its Constitution.2 In the United States, federalism has historically enjoyed a poor reputation in relation to democracy and human rights. This can be attributed to its association with slavery and the subsequent maintenance of racism through Jim Crow and related practices, a situation perpetuated and justified by a commitment to 'states' rights'.3 As Kreimer notes, 'during the late 1960s and 1970s, [these were] regularly invoked as a bulwark against federal efforts to prevent racial oppression, political persecution, and police misconduct' .4 The logic of experience seemed irrefutable: give local polities autonomy and face the risk that they use it to oppress minorities in their midst. In McDowell's telling assessment, 'the politics of race has dimmed [any] vision of the virtues of federalism to such a degree that they are barely visible'.5