THE ROBUST FEDERATION
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1 THE ROBUST FEDERATION The Robust Federation offers a comprehensive approach to the study of federalism. demonstrates how complementary institutions maintain and adjust the distribution of authority between national and state governments. These authority boundaries matter for defense, economic growth, and adequate political representation and must be defended from opportunistic transgression. From Montesquieu to Madison, the legacy of early institutional analysis focuses attention on the value of competition between institutions, such as the policy moderation produced through separated powers. Bednar offers a reciprocal theory: in an effective constitutional system, institutions complement one another; each makes the others more powerful. Diverse but complementary safeguards including the courts, political parties, and the people cover different transgressions, punish to different extents, and fail under different circumstances. The analysis moves beyond equilibrium conceptions and explains how the rules that allocate authority are not fixed but shift gradually. Bednar s rich theoretical characterization of complementary institutions provides the first holistic account of federal robustness. is an associate professor of political science at the University of Michigan. Her work crosses disciplines, addressing constitutional questions using the methods of complex systems analysis and game theory, and has been published in law reviews as well as journals in economics, political science, and sociology. Professor Bednar received her Ph.D. from Stanford University in
2 political economy of institutions and decisions Series Editor Stephen Ansolabehere, Massachusetts Institute of Technology Founding Editors James E. Alt, Harvard University Douglass C. North, Washington University of St. Louis Other books in the series Alberto Alesina and Howard Rosenthal, Partisan Politics, Divided Government and the Economy Lee J. Alston, Thrainn Eggertsson, and Douglass C. North, eds., Empirical Studies in Institutional Change Lee J. Alston and Joseph P. Ferrie, Southern Paternalism and the Rise of the American Welfare State: Economics, Politics, and Institutions, James E. Alt and Kenneth Shepsle, eds., Perspectives on Positive Political Economy Josephine T. Andrews, When Majorities Fail: The Russian Parliament, Jeffrey S. Banks and Eric A. Hanushek, eds., Modern Political Economy: Old Topics, New Directions Yoram Barzel, Economical Analysis of Property Rights, 2nd edition Yoram Barzel, A Theory of the State: Economic Rights, Legal Rights, and the Scope of the State Robert Bates, Beyond the Miracle of the Market: The Political Economy of Agrarian Development in Kenya Charles M. Cameron, Veto Bargaining: Presidents and the Politics of Negative Power Kelly H. Chang, Appointing Central Bankers: The Politics of Monetary Policy in the United States and the European Monetary Union Peter Cowhey and Mathew McCubbins, eds., Structure and Policy in Japan and the United States: An Institutionalist Approach Gary W. Cox, The Efficient Secret: The Cabinet and the Development of Political Parties in Victorian England Gary W. Cox, Making Votes Count: Strategic Coordination in the World s Electoral System Gary W. Cox and Jonathan N. Katz, Elbridge Gerry s Salamander: The Electoral Consequences of the Reapportionment Revolution Continued at the back of the book
3 THE ROBUST FEDERATION Principles of Design JENNA BEDNAR University of Michigan
4 cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi 32 Avenue of the Americas, New York, ny , USA Information on this title: This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of. First published 2009 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Bednar, Jenna. The robust federation : principles of design /. p. cm. (political economy of institutions and decisions) Includes bibliographical references. isbn (hardback) isbn (pbk.) 1. Federal government. 2. Federal government United States. I. Title. II. Series. jc355.b dc isbn hardback isbn paperback has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. Information regarding prices, travel timetables, and other factual information given in this work are correct at the time of first printing, but does not guarantee the accuracy of such information thereafter.
5 Contents List of Figures List of Tables Acknowledgments page ix x xi 1 Constituting the Robust Federation Federalism as Means Distributing Authority Opportunism Safeguards Robustness Discussion 16 2 Federal Structure and Potential Defining the Federation The Promise of Federalism Building Intuition: The Evolution of the European Union 56 3 The Federal Problem A Typology of Opportunism Why Do We See Opportunism? Intergovernmental Retaliation: A Natural Defense Fitting Federalism s Complexity: Implications for Design Mathematical Appendix to Chapter The Safeguards of Federalism Structural Safeguards Popular Safeguards Political Safeguards 113 vii
6 viii Contents 4.4 Judicial Safeguards Again Fitting Federalism s Complexity Mathematical Appendix to Chapter Coverage The Issue: Coverage as a Necessary Condition The Coverage Capacity of Safeguards Developing an Intuition for Coverage Discussion Complementarity The Issue: Inefficient Safeguards The Complementary Coverage Capacity of Safeguards The Insufficient Mild Safeguard The Insufficient Severe Safeguard Discussion Mathematical Appendix to Chapter Redundancy The Issue: Imperfect Safeguards Overcoming and Embracing Imperfection Developing an Intuition for Redundancy Discussion Tying the Gordian Knot 213 References 220 Index 235
7 List of Figures 1.1 The Problem of Federal Robustness page The System of Remedies The Trade-Off between Centralization and Decentralization (Adapted from Kollman et al. 2000:213) Types of Opportunism: The Triangle of Federalism Slippage and Error in Deviance Space Institutionally Influenced Behavior with Linear Marginal Benefits and Costs Intergovernmental Retaliation Generates Inherent Opportunism The Triangle of Federalism, Admitting Shirking and Burden-Shifting The Triangle of Federalism, Leaving Encroachment Exposed Intergovernmental Retaliation Generates Inherent Opportunism (Duplicated) Behavioral Response to a Weakened Safeguard Complementary Safeguards Insufficient Mild Safeguard Insufficient Severe Safeguard Effect of Imperfect Safeguards on Punishment Frequency The System of Safeguards Varying Structural or Political Safeguards Threshold Affects Judicial Activism 199 ix
8 List of Tables 2.1 List of Federations, page Prescriptions for Centralization or Decentralization by Objective State Compliance with Requisitions for Troops ( ) and Money ( ) A Standard Prisoners Dilemma Game Criteria Defining Integrated Parties Preliminary Assessment of the Coverage Capacity of Each Safeguard Refined Assessment of the Coverage Capacity of Each Safeguard, Considering Sanctioning Capacity The Robust Federation: Design Principles 216 x
9 Acknowledgments Some books seem to write themselves. Ideas spring out of the author s mind, arguments fully formed, as the fingers race to capture them on paper. This is not one of those books. The arguments in these pages were shaped by workshop audiences and colleagues who generously took the time to offer suggestions. Thanks to the graduate students and faculty at the Santa Fe Institute, Texas A & M, Michigan, Rochester, NYU, Chicago, George Mason, Penn State, Washington University, University of Wisconsin, Wilfred Laurier University, UCLA, and Stanford for your reactions; I hope that many of you find your fingerprints on this book. Thanks to Bob Axelrod, Cliff Carrubba, Bill Clark, John Ferejohn, Barry Friedman, Liz Gerber, Anna Grzymala-Busse, Daniel Halberstam, Don Herzog, Simon Hug, Jim Johnson, Orit Kedar, Ken Kollman, Larry Kramer, Rob Mikos, Burt Monroe, Scott Page, Sunita Parikh, Jonathan Rodden, and Craig Volden, my kind colleagues who provided detailed comments: I have finished this project now and am ready to return the favor. I am also grateful to John Ferejohn and Barry Weingast, whose writings inspired my approach to constitutional analysis, and Jack Rakove, for introducing me to James Madison and encouraging me to use my skills in formal analysis when reading his writings. For superb research assistance I am indebted to Carolina de Miguel Moyer, Olesya Tkacheva, Colleen Castle, and three intrepid first-year Michigan undergraduates: Zeke Daniels-Shpall, Christina Spallina, and Alexandra Tilén. And thank you to the University of Michigan s Center for Local, State, and Urban Politics for the funds to pay for this assistance. In addition to the transformative effect it has had on my research, the Santa Fe Institute provided warm hospitality over several summers of intense writing. Stanford s Hoover Institution generously provided me xi
10 xii Acknowledgments with space and financial support while I worked on the final revisions to the manuscript. Despite all this support, this book would not be possible without the distracting love of my three boys: Orrie, Cooper, and Scottie.
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