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
What light can the history of federalism shed on modern-day constitutional debates? Quite a lot – beginning with the important point that the search for the “real” federalism may in fact be a misguided quest. This is not to say that the idea of federalism is simply an empty shell or a rhetorical flourish devoid of content. But an understanding of American federalism’s beginnings does suggest that the Supreme Court’s recent “federalism revolution” has been neither revolutionary nor about federalism in any historically informed sense. Instead, the Court’s federalism doctrine has unthinkingly replicated centuries-old debates, even as some justices claim to have divined the concept’s one true meaning.
As I discussed in a previous post, the central tenet of federal ideology as it emerged in the late eighteenth century was a conviction that multiple levels of government could – indeed, should – exist within a composite polity such as British North America. Federalism has had a core of stable meaning since its first American incarnation as a doctrine of colonial resistance to the power of Parliament, but that meaning has centered on a commitment to governmental multiplicity itself more than a vision of a particular distribution of governmental authority. We might term this the first lesson that the history of federalism offers for modern constitutional doctrine: a reminder that overlap, concurrence, and multiplicity are and have always been the background principles of the American federal republic, not a temporary way station to be visited on the way to a more perfect – static, settled – national structure. The states may be laboratories, but we should not assume that the experiment will be able to produce a magic structural formula.
The American theory of federalism originated in the colonial and Revolutionary periods. Matters became even more complicated as political and legal actors attempted to institutionalize that theory in the 1790s and early 1800s. And here is the second lesson of federalism’s history for modern constitutional doctrine: uncertainty about the “real” meaning of federalism in practice has as long a lineage as federal ideas themselves. Similar debates to the ones that played out in the Court’s classic anticommandeering cases, New York v. U.S. (1992) and Printz v. United States (1997) (and that lurked behind the decision in Medellin v. Texas (2008)), took place in the first few decades of the Republic’s existence.
Beginning at least with the First Congress’s debates over the structure of the lower federal courts, early republican commentators articulated two distinct views of what federalism meant. The first group viewed federalism as requiring a clean division between the power of the general government and that of the states. They therefore opposed concurrent power, regarding it as liable to create confusion among citizens and thus to increase the risk that the general government would be able covertly to expand its brief. As Virginia judge Joseph Jones wrote to James Madison in 1789, “[W]here there is danger of clashing jurisdictions, the limits should be defined as ac[c]urately as may be, and this danger will exist where there are concurrent jurisdictions.”
The second group of commentators argued that the real imperative of federalism was to minimize the institutional footprint of the general government, either because of their normative beliefs about which level of government was more suited to handle a particular task, or because they feared that the creation of any centralized agencies or programs would amount to the thin edge of the nationalizing wedge. In the debates over the lower federal courts, observers such as the Antifederalist Luther Martin argued that requiring state courts to enforce U.S. law was a better means of protecting state sovereignty than insisting that federal law be carried out only through federal instrumentalities. Martin and his fellow watchdogs of state power preferred messily concurrent powers to neatly distinct ones. In modern terms, they chose commandeering over formal federalism. On their view, having county sheriffs performing background checks on gun purchasers at the request of Congress would be less offensive to the federal structure than the establishment of the Transportation Security Administration.
As this analogy suggests, these divisions among early republican commentators find striking echoes in the modern anticommandeering cases. For the majority in New York and Printz, federalism requires the type of structural, subject-matter-specific separation that advocates of a sharp line between federal and state judicial power demanded in the 1790s and 1800s. On this view, the job of a federalist judge is to police the formal boundaries between the states and the general government, rendering that which is federal unto the general government and keeping the rest for the states. Structural commitments to vertical separation of powers, as well as pragmatic considerations about accountability, are held to militate in favor of a clear delineation between levels of power, even if the downstream consequence of such a holding is to encourage the expansion of federal bureaucracies because Congress is not permitted to “commandeer” or “impress” the states into its service.
For the dissenters, meanwhile, the need to maintain a formal division between state and federal authority is less important than the impulse to encourage experimentation and cooperation among levels of government. In addition, these justices resist the majority’s claim to the federalist mantle and argue that their view in fact represents a stronger commitment to the real federalism. This is the “irony” that Justice White identified in his New York dissent: “in its formalistically rigid obeisance to ‘federalism,’ the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems.” Like the early republicans who viewed state-court review of federal questions under the Supremacy Clause as both more convenient and normatively preferable to the creation of a system of lower federal courts, the dissenters in the anticommandeering cases seem relatively untroubled by the use of state institutions to carry out federal law.
Of course, the Supremacy Clause’s deputization of state courts to hear federal issues has not been understood as a potential federal commandeering of state institutions, in part because the requirement that state courts uphold federal law is textually based, and because it seems to go to the heart of the compromises reached at the Constitutional Convention.
So: is the real meaning of federalism a structural, almost aesthetic demarcation between the domain of the states and that of the general government, with special emphasis on preserving the states’ formal autonomy? Or is it more of a functional concern that permits some overlap and concurrence, in the name of a commitment to minimizing the expansion of congressional power? The historical record suggests that both accounts have a long pedigree, and that the real meaning of today’s federalism may be the same as that of the old federalism – with its ingrained commitment to apportionment without weighing the portions – after all. Posted
by Alison LaCroix [link]