Opening Word document…

Initial victories spill over to state agenda-setting.

Gerken ’17 [Heather; Summer 2017; Professor of Law at Yale University, J.D. from the University of Michigan, A.B. from Princeton University; Hofstra Law Review, “Distinguished Scholar in Residence Lecture: A User's Guide to Progressive Federalism,” vol. 45]

We should value the role that cities and states play in our democracy no matter what our politics. Uncooperative federalism may sound antithetical to certain legal values, but it's not antithetical to democratic ones. It is good to have a source of friction, dissent, and debate inside the behemoth we call the "Fourth Branch." Moreover, federal dependence on states and localities creates incentives for moderation and compromise. Just ask President Obama, who had to compromise a great deal to bring Obamacare to the red states. President Trump may not have to cooperate with Democrats on the Hill, but he's going to need the support of blue states and cities if he wants to get things done.

We should also value spillovers. To be sure, it is uncomfortable to recognize that we are all sometimes forced to live under someone else's law. But there are many democratic virtues associated with spillovers. For example, in today's heated political environment, state officials lack incentives to compromise with those from the other side. But when a blue policy spills over into a red state (or vice versa), legislators can't ignore the opposition. They must reach across state (and party) lines to fix the problem. Spillovers thus force state and local officials to do what they are supposed to do: politic, find common ground, and negotiate a compromise that no one likes but everyone can live with.

The most important role that federalism plays is in furthering change. Free speech is a precondition for democracy to function. These days, however, dissenters have little problem getting their message out; they have trouble getting it across. Federalism and localism matter to anyone trying to get a message across. Federalism and localism supply different platforms and different forms of advocacy for would-be dissenters. By giving social movements a chance to "dissent by deciding" - converting abstract appeals into concrete policies - decentralization confers a variety of benefits on democracy's outliers that the First Amendment, standing alone, cannot supply.

Decentralization also facilitates agenda setting. When those seeking change put in place a real-life instantiation of their ideas, the majority can't ignore them, as majorities are wont to do. Decentralization thus helps social movements shift the burden of inertia and force the majority to engage. Federalism and localism also give those who seek change a chance to move from the abstract to the concrete. They don't have to talk about how a policy would work in theory. They can show that it does work in practice. Better yet, it allows advocates of change to build their movement one step a time. It is hard to jumpstart a national movement. That's why virtually every national movement began as a local one.

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