The Place of Power

I am completing a book manuscript that I started a few years ago and now a related article (to be posted on SSRN soon) about how the location of federal power shapes how that power is exercised.  I love titles featuring a double entrende, so my working title for the book has been The Place of Power: A Government By, For, and Near the People.  I have previewed some parts of the argument in symposium essays here and here. 

The question whether to centralize or decentralize national power has been a question permeating our constitutional history, from Abraham Lincoln’s proposal to create a “Western” federal government to the expansion by the Evarts Act of 1891 of regionally distributed lower federal courts to the creation by the Federal Reserve Act of 1913 of regional banks.  The question whether to centralize national power has also long permeated comparative constitutional debates as well, with it playing a particularly prominent role in the creation of the Basic Law in West Germany after World War II and the post-apartheid constitution in South Africa.  Scholars in different disciplines have started to engage with dimensions of this question as well, with a recent contribution by Dave Owen about its relevance to debates about administrative federalism deserving particular attention.

It is therefore worth mentioning that this issue is now being considered by Congress.  This is not a time when Congress has been particularly serious about debating policy merits, nor has it been bipartisan in its approach to anything.  I have started to speak with some on Capitol Hill about this issue.  Given the serious and bipartisan history of this issue, though, my desire—even if not my hope given the current political climate—is that Congress can be persuaded to engage in a substantive way with this question.