Tuesday, May 14, 2019

Greg Ablavsky on the Origins of Dual Federalism

Richard Primus

The purpose of this post is to call attention to an excellent new article in the Yale Law Journal by Gregory Ablavsky.  It's called Empire States: The Coming of Dual Federalism.  The citation is 128 YLJ 1792, or you can just find it here:

Without attempting to explain everything that makes this article worth reading, I'll offer this: Ablavsky argues that the conventional view of the Founding as a moment when the Founders "split the atom of sovereignty" gets a major piece of the story backwards.  In practice, the major change in the structure of sovereignty worked by the adoption of the Constitution was not the replacement of a system whereby sovereignty was lodged in a single location to one where it was divided between state and national governments.  Instead, the Founding was a moment when the number of places where sovereign power was located was definitively *reduced* to only two (i.e., the state and national governments).  Before that moment, Ablavsky points out, states were not as practical matters the wielders of sovereign authority.  On the ground, they competed with a dizzying array of other wielders of power--towns, counties, juries, churches, corporations and charter companies, secessionists and insurrectionists, and so on.  Seen from this perspective, a major piece of the Constitution's work was to enlist national power in the service of making states sovereign in practice for the first time by putting the overwhelming force of the national government behind the state governments as against those other contenders. 

I make no effort to convey Ablavsky's argument in full here, let alone to defend it.  That's what the article is for.  My point here is simply that people who want to understand this subject matter should read the article.  This work is something with which the field must grapple seriously.

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