“Federalism” is not in the title of Jacob’s book, but to an American constitutional lawyer it is one of the two most obvious sites of the tension that he discusses. (Religious freedom is the other one.) As he notes, the instincts of liberal pluralism are evident in the decision to retain a set of thirteen or fifty different states, with legally protected powers to disagree with one another on issues of moral consequence. The instincts of liberal rationalism are evident in the decision to create a supreme national government that can break down local prejudices, and then to require that each state respect a set of national rights. Just as liberalism has both, our constitutional order has both.

To be sure, the fifty states are states, not purely voluntary associations, but as Jacob also recognizes, the arguments for pluralism by non-state associations often translate, both in theory and practice, to states, and the boundaries between state and non-state entities has not been historically firm either.

So the rationalism/pluralism divide is rehearsed throughout American constitutional history as a tension between two different strategies for limiting government abuse – through federalism and through individual rights. A committed liberal is tempted to say that federalism shouldn’t count when individual rights are at stake. But state defiance of national power also helps preserve rights, as the Kentucky and Virginia Resolutions told us a few centuries ago, and as the state-led marriage equality movement told us a few years ago.

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