By: Vlad Perju
The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives too have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional doctrine.
The experience of the European Union, where identity federalism also benefits from a textual anchor, reveals some of the complexities of this process. As an eminently vague concept, identity leaves too much room for judicial discretion and leads to unsolvable conflicts among courts as well as between courts and other branches. Like the old sovereignty-based approaches, identity encourages judges to draw bright lines, resurrects jurisdictional conflicts, and discourages cooperation and compromise. In the age of populism, identity federalism draws courts into new and particularly concerning forms of polarization.