Benjamin A. Barsky L’19, GR’19 recently published “Dual Federalism, Constitutional Openings, and Convention on the Rights of Persons with Disabilities” in the University of Pennsylvania Journal of Constitutional Law.
In the article, Barsky provides an original assessment of how subnational entities— cities, counties, and states — have championed and upheld the Convention on the Rights of Persons with Disabilities, an international human rights treaty that the U.S. Senate refused to ratify in 2012. The article’s findings reinforce the idea that, even in the face of federal opposition or inaction, the U.S. constitutional structure enables subnational entities to carry forward international human rights principles.
The following is the article abstract:
The Convention on the Rights of Persons with Disabilities (“CRPD”) represents a historic achievement for the global disability rights movement. Yet, when the U.S. Senate refused to ratify it on December 4, 2012, its influence on American law and policy seemed doomed. The Founders, after all, had conceived of a constitutional vision where the federal government acts as the ultimate arbiter of questions of international policy. Under this vision of “dual federalism”—which dominated how the legal profession understood U.S. involvement in foreign affairs for over a century—only the federal political branches have the power to make and implement international laws like the CRPD. But, as I show in this Article, dual federalism has not endured. “Subnational entities”—cities, counties, and states—have become key decision-makers in areas once dominated by the federal government, such as immigration and international trade. As it turns out, they have also become champions of the CRPD.
This Article explains that “foreign affairs federalism” is at the heart of this paradigm shift. This new status quo reveals that the Constitution leaves ample room for subnational entities to engage on issues of international scale. In many cases, it has enabled local and state governments to act antagonistically—or “uncooperatively”—toward the federal government. In others, it has empowered subnational entities and federal actors to work hand-inhand—or “cooperatively”—to drive national foreign affairs priorities. This Article shows that U.S. subnational entities have implemented the CRPD in accordance with principles of uncooperative and cooperative foreign affairs federalism. From an uncooperative perspective, subnational entities have denounced the Senate’s refusal to ratify the CRPD through resolutions and other expressive policies. From a cooperative perspective, the supported decision-making (“SDM”) movement serves as an exemplar case study. Embedded in Article 12 of the CRPD, SDM represents a shift away from guardianship law and toward the ability of people with disabilities to make life decisions on their own. This Article shows that the ongoing flourishing of SDM laws across the United States is due in large part to alliances between state-level disability rights organizations and the federal executive branch.
Barsky expressed gratitude for the guidance provided on earlier drafts of this article by University of Pennsylvania Carey Law School Professor of Law Jean Galbraith and David Ferleger L’72. He also underscored that the Salzburg Cutler Fellowship Program was instrumental in helping him develop and refine this research over time. Barsky thanked Senior Adjunct Professor of Global Leadership and Associate Dean of International Affairs Rangita de Silva de Alwis and Professor of Law William W. Burke-White for helping him become a Cutler Fellow and for encouraging him to pursue research at the intersection of federalism, disability law, and human rights.
Barsky is PhD Candidate in Health Policy at Harvard University. He is also Initiative Fellow at Harvard’s Edmond and Lily Safra Center for Ethics and Legal Research Fellow at Penn’s Scattergood Program for Applied Ethics of Behavioral Health Care. Ben researches in the areas of health and criminal law, mental health policy, and disability rights.