Chapter 4 — Further Reading

The literature on American federalism is enormous and crosses disciplines (constitutional law, political science, public administration, history). This list is annotated and selective. The mix is intentional: legal scholars and political scientists, left-leaning and right-leaning, classic and contemporary. A serious student of American federalism should read across the spectrum.

Foundational and classical

Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (1787–1788). The essential primary source. Federalist 9, 10, 14, 39, and 51 (Madison) on the federal-state structure; Federalist 32 and 33 (Hamilton) on enumerated powers and necessary-and-proper. Available free at the Library of Congress and many other sources. Read in conjunction with the Anti-Federalist papers (especially Brutus and the Federal Farmer) to see what the structure was responding to.

Daniel J. Elazar, American Federalism: A View from the States (3rd ed., 1984). The classic political-science treatment. Elazar's typology of state political cultures (moralistic, individualistic, traditionalistic) is dated but still useful. The framing of federalism as a working constitutional partnership rather than a static division of powers is foundational.

Morton Grodzins, The American System: A New View of Government in the United States (1966). Source of the "marble cake" metaphor — the foundational argument that federal-state cooperation has been the norm throughout American history, not the exception that emerged in the 1930s.

Erin Ryan, Federalism and the Tug of War Within (Oxford, 2011). A leading scholar's argument that federalism is best understood as a balance of competing values (checks-on-power, accountability, problem-solving capacity, individual autonomy) rather than a fixed allocation of authority. Ryan develops a "balancing federalism" framework and applies it to environmental, healthcare, and security policy.

Heather Gerken, "Federalism All the Way Down," 124 Harvard Law Review 4 (2010). A landmark article reframing federalism around localism — counties, school districts, neighborhood associations — and recasting "states' rights" arguments in terms of structural decentralization that can serve progressive ends. Gerken's "uncooperative federalism" work (with Jessica Bulman-Pozen) develops the idea that states deliberately implement federal programs in ways that subvert federal goals, and that this dynamic is part of how American federalism actually functions.

Jessica Bulman-Pozen, "Partisan Federalism," 127 Harvard Law Review 1077 (2014). The argument that contemporary federalism is shaped less by state-versus-federal conflict than by state-as-a-vehicle-for-partisan-conflict. State governments behave like opposition parties, especially when controlled by the party out of power nationally. This article anticipates the asymmetric-federalism era by several years.

Michael S. Greve, Real Federalism: Why It Matters, How It Could Happen (AEI Press, 1999). A constitutionalist-conservative argument for renewed federalism limits on federal power. Greve's later work (The Upside-Down Constitution, 2012) develops the argument further. Useful for understanding the strongest version of the limited-federal-power view; readable and analytically careful even if you disagree.

Robert Mikos, "On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime," 62 Vanderbilt Law Review 1421 (2009). The cleanest legal-scholarship treatment of state-level marijuana legalization within a continued federal prohibition. Mikos's analysis of why states are not preempted from legalizing what federal law criminalizes — anti-commandeering, the structural impossibility of forcing state cooperation — became the conceptual foundation for understanding how the marijuana federalism patchwork actually works.

Lynn Baker and Mitchell Berman, "Getting Off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So," 78 Indiana Law Journal 459 (2003). A pre-NFIB article that anticipated the coercion limit and provides a framework for thinking about what would, and would not, count as unconstitutional coercion in conditional federal grants.

Empirical political science

Donald F. Kettl, The Divided States of America: Why Federalism Doesn't Work (Princeton, 2020). A pessimistic account of contemporary federalism, focusing on the fragmentation of policy capacity and the inability of the federal-state system to handle 21st-century problems (climate, pandemics, infrastructure). Pairs interestingly with Greve — both are critical of current federalism, but for opposite reasons.

John Kincaid, ed., Federalism (4 vols., SAGE, 2011). A comprehensive multi-volume reference with chapters by leading scholars on every major dimension of comparative and American federalism. Useful as a reference; not a sit-down read.

Andrew Karch, Democratic Laboratories: Policy Diffusion Among the American States (Michigan, 2007). An empirical examination of how policies spread (or don't) across states. Karch identifies the conditions under which the laboratories-of-democracy story works in practice and the conditions under which it doesn't.

Charles M. Lamb, ed., Race Against the Court: The Supreme Court and Minorities in Contemporary America (SUNY Press, 1991, with subsequent volumes). The Supreme Court's role in mediating federal-state disputes around civil rights; useful background for Chapter 6.

Recent and current

Erwin Chemerinsky and Howard Gillman, The Religion Clauses: The Case for Separating Church and State (Oxford, 2020). Federalism appears throughout discussions of how state-level religious exemptions and federal civil-rights enforcement interact. Chemerinsky is a leading liberal constitutional law scholar; Gillman a leading political scientist who studies the Court.

Sarah Binder and Mark Spindel, The Myth of Independence: How Congress Governs the Federal Reserve (Princeton, 2017). Not a federalism book per se, but the analysis of how federal-state-municipal financial relationships shape the Fed's authority offers a model for thinking about the institutional layering of American government.

Jamila Michener, Fragmented Democracy: Medicaid, Federalism, and Unequal Politics (Cambridge, 2018). The empirical effects of fiscal federalism on civic engagement. Michener documents how the state-level variation in Medicaid eligibility and administration produces variation in political participation among low-income Americans. A model of how to think about the political effects of federalism, not just its constitutional structure.

Greg Goelzhauser, Judicial Merit Selection: Institutional Design and Performance for State Courts (Temple, 2016). State courts handle the vast majority of American litigation. Goelzhauser's analysis of how state judicial selection produces different patterns of state-court behavior is essential for understanding the state side of federal-state legal relationships.

Primary sources worth reading directly

Supreme Court opinions. Read the originals when you can. Cornell's Legal Information Institute (law.cornell.edu) is free, searchable, and reliable.

  • McCulloch v. Maryland, 17 U.S. 316 (1819) — Marshall's foundational opinion.
  • Wickard v. Filburn, 317 U.S. 111 (1942) — short and surprisingly readable.
  • South Dakota v. Dole, 483 U.S. 203 (1987) — the conditional-spending case. Pair with O'Connor's dissent.
  • United States v. Lopez, 514 U.S. 549 (1995) — Rehnquist's majority and Breyer's dissent are both essential.
  • Printz v. United States, 521 U.S. 898 (1997) — Scalia's majority on anti-commandeering.
  • NFIB v. Sebelius, 567 U.S. 519 (2012) — the longest opinion in modern memory, but reading the syllabus and Roberts's controlling opinion gives you the major holdings.
  • Murphy v. NCAA, 584 U.S. ___ (2018) — Alito's majority on anti-commandeering as applied to a federal statute prohibiting state action.
  • Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022) — both Alito's majority and the joint dissent. Read the dissent first if you want to feel the contested ground.

Data sources for the exercises

  • National Association of State Budget Officers (NASBO): state-by-state federal-funds breakdowns.
  • Pew Charitable Trusts, "Federal Funds and Fiscal Federalism" project: ongoing tracking.
  • Kaiser Family Foundation, "State Health Facts": Medicaid expansion, FMAP rates, healthcare federalism.
  • NCSL (National Conference of State Legislatures): policy variation across states.
  • Census Bureau, USAspending.gov: federal spending by state, county, and program.
  • Federal Highway Administration, "Highway Statistics": state-by-state highway funding.
  • Guttmacher Institute, "State Policies on Abortion": post-Dobbs policy tracker.
  • Marijuana Policy Project, "State Policy": marijuana legalization status by state.

A note on reading this literature

If you read three things from this list, read: (1) Federalist 10 and 51 (because the founders' theory is part of the operating system); (2) one of Heather Gerken's "uncooperative federalism" articles (because it captures contemporary federalism better than older treatments); and (3) the syllabus and majority opinion in NFIB v. Sebelius (because that case sits at the center of modern fiscal federalism, conditional spending, and the limits of the Commerce Clause). Together those three readings will give you most of what you need to read the news with informed federalism eyes.

If you read all of this list, you have done enough to teach an undergraduate seminar on federalism — and to argue the question with anyone who has done less.