If the states can sue about their general “economies” and the general “health, safety, and well being” of their citizens, they can sue about anything.
My first two posts considered Harold Berman’s overall project and explained the basic ideas in Law and Revolution, Volumes I and II. In this post, I would like to consider Berman’s first book and its reconsideration of the advantages of polycentric forms of ordering for liberty. Polycentric forms of political ordering can occur when different sovereigns dispense law to the same subjects. Multiple independent forms of legal order can advance liberty for two reasons. First, they can create a balance of institutional power. The Catholic Church curbed the totalizing power of the medieval states. Second, they offer competing legal jurisdictions. At least for some matters, individuals could choose between canon and secular law for adjudication. The great danger of polycentric forms of order is the potential of a violent clash between them, but when each form of order has a core competency and legitimacy, such violence is less likely.
The characteristic form of polycentric order in the American republic is, of course, federalism. Our government was founded on the paradox that two forms of government lead to more liberty than one. Until the consolidation of federal power in the New Deal, the federal government powers were quite limited on economic matters. While states had largely unlimed powers (as least as far as the federal government was concerned), they were limited by the possibility that citizens could exit to other statues in the commercial republic that the federal government maintained. Such polycentric ordering aided liberty and economic growth.
Can polycentric forms of ordering be revived to aid liberty today? One idea is to reinstate federalism that was the basis of the original constitution. Berman’s book, however, may suggest a difficulty. Polycentrism works when the form of order had a claim the core beliefs of individuals. In the Middle Ages, the Catholic Church held sway over most people’s spiritual life and thus on this rock of such adherence could be erected a firm legal jurisdiction. It is unclear that federalism holds a comparable appeal today in a mobile nation where many, if not most citizens, feel relatively little attachments to their states. To endure, a successful constitutional federalism must be a federalism of the heart rather than merely of the intellect. Perhaps a world economic system which preserves the free flow of goods between nation states that exercise all other government powers is a more plausible polycentric system for today, because globalism gains support from the need to generate wealth and the nation state gains support from still powerful feelings of nationalism.