an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Federalism is one of the most important but least understood cornerstones of American law and politics. Current debates over issues as diverse as the healthcare bill, the economic stimulus package, abortion, and medical marijuana confirm this suspicion. Today, most Americans routinely employ the word “federal” to refer to a federal case, federal law, the actions of a federal prosecutor, or to the federal government itself. But what exactly does the term “federal” mean, and how did it come to have that meaning? In my new book The Ideological Origins of American Federalism, which has just been published by Harvard University Press, I investigate the moments of political and constitutional crisis when the federal idea began to be cobbled together, first by colonists opposing the power of the British Parliament and later by the founders as they struggled to set up a workable model of government.
The emergence of American federalism in the late eighteenth century was neither a foregone conclusion nor an act of pure invention. Rather, it began as a response to British imperial theory and transformed into a freestanding vision of law and politics that prized multilayered governmental authority. Only later did the term “federal” come to refer to the national government itself, rather than to the nature of the entire system, including the nation as well as the states.
Like judicial review, federalism’s origins are typically traced to the drafting of the Constitution, despite the lack of any explicit reference to either concept in the document itself. Certainly, a set of ideas about government that would later be called “federalism” began to coalesce at the Constitutional Convention, conjured into action by the exigencies of a fraying confederation and the combined force of fifty-five creative minds. The product of these imperatives was not simply a constitutional doctrine but rather an entire philosophy of government.
But the story of federalism began decades before the delegates met in Philadelphia. Again like judicial review, with which it was intimately connected, federal thought predated the United States, emerging in the course of the colonists’ struggle to define the constitution that governed their relationship with the British Empire. In my book, I trace the history of American federal thought from its colonial beginnings as a scattered array of provincial responses to British metropolitan assertions of authority, to its growth during and after the American Revolution as a normative theory of multilayered government.
The rise of American federalism in the second half of the eighteenth century should be understood as primarily an ideological development – and, indeed, as one of the most important ideological developments of the period. The core of this new federal ideology was a belief that multiple independent levels of government could legitimately exist within a single polity, and that such an arrangement was not a defect to be lamented but a virtue to be celebrated. In this sense, the transition from the British Empire to the federal republic was characterized by constitutional change rather than mimesis or continuity.
Indeed, the new federal ideology rapidly became identified with the fledgling nation itself. More than a mere doctrine, the belief in multiplicity, overlap, and concurrence became a foundational principle of the American political enterprise. “Federal” and “republic” were the nation’s twin attributes, terms so resonant that they were obvious choices for the names of the country’s first political parties. From its origins in a disconnected set of pre-Revolutionary arguments about the relative powers of Parliament and the colonial legislatures to regulate colonial affairs, the federal conception of divided authority became necessary to the republic itself.