Federation, Secession, and Union

Guest Blogger

This post was prepared for a roundtable on Federation and Secession, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Alison L. LaCroix

In 2014, a moment that increasingly feels as though it existed in a different constitutional era, Sandy Levinson launched what he called, not without conscious irony, “the Kansas project.” The project was a volume to be edited by Sandy and published by the University Press of Kansas, on the topic of “neo-nullificationism and neo-secessionism,” as Sandy described it in an email to a group of contributors. Two years later, in 2016, the volume appeared, bearing the title Nullification and Secession in Modern Constitutional Thought.

The “Kansas project” was the first time that I worked with Sandy, and I count myself incredibly fortunate to have been able to benefit since then from the immeasurable boons of his writing, conversation, and intellectual generosity. To borrow and amend Jefferson’s description of Hamilton in a letter to Madison, Sandy is a “colossus”—not, as Hamilton was, to “the antirepublican party,” but rather to the constitutional law party, in all senses of the word “party.” Like Hamilton, Sandy is a one-person army of ideas. He is “an host within himself.”[1]

Clearly, though, Sandy is no Hamiltonian in the obvious senses; indeed, I suspect he would relish being named a thoroughgoing un-Hamiltonian. Sandy is a forceful critic of many aspects of the Constitution, in particular its several undemocratic elements—the very structures (e.g., the Senate, the federal courts) that, in Hamilton’s view, were not sufficient to bring about the national republic that he hoped to build. Historically based arguments that the Constitution was not intended to be democratic, in the modern sense of that word, typically summon Hamilton as a star witness. Sandy’s critiques, in contrast, place Hamilton firmly in the dock.

But at least one piece of evidence from the Hamilton oeuvre finds a surprising degree of harmony with Sandy’s work, especially Sandy’s writing on federation and secession, the topics of this panel. Yet it is in tension with much of the rest of the Hamiltonian constitutional picture. The Hamilton-Levinson node I have in mind is Federalist No. 32, in which Hamilton took up the specific problem of the relationship between the states’ taxing power and that of the general government, as well as the general problem of overlapping—or “concurrent”—powers in a multilayered federal union.

Federalist 32 was something of an outlier for Hamilton, insofar as it contemplated the possible problems that such a union might entail. In this way, it differed from his explicitly nationalistic writings, such as his reports on public credit, the national bank, and manufactures. It was this nationalistic Hamiltonian mode that found its way into the United States Reports through Chief Justice John Marshall’s opinion for the Court in McCulloch v. Maryland. But Marshall’s full-throated adoption of nationalistic Hamilton came at the expense of concurrent-power Hamilton.

Over the course of his career, Sandy has produced an enormously rigorous and influential body of scholarship on these three crucial and interrelated ideas: secession, nullification, and union. One particularly notable contribution was his 2021 essay “Commemorating the 200th Anniversary of McCulloch v. Maryland,” a version of which he delivered as the Salmon P. Chase Lecture at the U.S. Supreme Court in December 2019.[2] Like the “Kansas project” and many of his other writings, Sandy’s analysis of McCulloch provides a model of constitutional law scholarship that manages simultaneously to reject founder-worship and upset crude versions of sovereignty-talk while taking seriously as issues of constitutional theory these three foundational concepts.

If the impetus for the “Kansas project” was to understand and contextualize modern-day invocations of nullification and secession, one question behind Sandy’s work on McCulloch is, as he put it in the title of one essay, “Does Importance Equal Greatness?”[3] Sandy’s answer is clear: no. Yes, McCulloch is elemental. The casebook that Sandy co-edits famously includes the case in its entirety—a fact that students find all the more remarkable when they realize that the utter lack of case cites in the opinion originated from Marshall’s pen rather than editorial emendation. But does Marshall’s opinion actually qualify as “great”? No, Sandy maintains: “I now find both the opinion and its author simply too question-begging and often adopting a rhetorical style that can often be described as bullying.”[4]

And yet, Sandy concludes, McCulloch is important and worthy of bicentennial commemoration, and its result was correct on the question of Congress’s power to charter the Second Bank of the United States (what Sandy calls “McCulloch I”) and likely correct on the question whether Maryland could lawfully tax the Bank (“McCulloch II”), albeit not for the reasons Marshall gave. Many constitutional law courses focus on the congressional-power issues presented by McCulloch I and spend very little time on the state-power issues at stake in McCulloch II. Sandy believes, as do I, that this imbalance misses important aspects about the case, in terms of both constitutional theory and what was once constitutional history, and is increasingly our constitutional now.

McCulloch II is ostensibly about the state’s power to tax the Bank. But it is also about much larger questions: what was the nature of the federal union that the Constitution created? What was the nature of the Union—in the capital-U sense, meaning that political entity known as the United States of America—in 1819?[5] And what might the answer to that question reveal about the nature of the Union now, in 2022?

For Sandy, one of the great puzzles of McCulloch is presented in the first line of Marshall’s opinion. “In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that State.”

A “sovereign State”? Sandy notes that he “always wonder[s] if the term should be read with a sarcastic inflection,” given that “Maryland’s ‘sovereignty’ is in tatters by the end of the opinion.”[6]

Whatever Marshall’s intention in beginning his opinion in this way, his subsequent rhetoric abandons the language of state sovereignty in favor of a muscular vision of the Union. “Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported,” Marshall announces, in tones that would have resonated with his audience, who had only five years earlier watched Washington burn during the War of 1812. A Bank, Marshall insisted, was integral to this fiscal-military state. “The exigencies of the Nation may require that the treasure raised in the north should be transported to the south that raised in the east, conveyed to the west, or that this order should be reversed.” The Constitution must be read to meet these requirements, Marshall concluded. “Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous and expensive?”[7]

This language comes in McCulloch I, the primary focus of which is the scope of Congress’s power. But the vision of the Union that Marshall puts forth also informs McCulloch II, in which he dismisses Maryland’s claimed power to tax the Bank. The two issues—Congress’s Article I powers, the state’s sovereignty—are not in fact as distinct as they might appear. Both are fundamentally questions about union—specifically, the Union. Marshall celebrates the marching armies and revenue collectors who range from the St. Croix to the Gulf of Mexico. Their sphere of operations is the entire Union. As Marshall had previously noted in the opinion, “the Government of the Union, though limited in its powers, is supreme within its sphere of action.”[8] The tone is at once Napoleonic and Jacksonian—both the General Jackson of the Battle of New Orleans in 1815, and the bellicose President Jackson who later excoriated South Carolina in his Nullification Proclamation of 1832.

The tone is also Hamiltonian—but nationalistic Hamilton, not concurrent-power Hamilton. As Sandy notes, Marshall “quite stunningly brushes aside what might be learned from reading . . . Federalist 32.”[9] Instead of political negotiation and “reciprocal forbearance” between levels of authority, Marshall relocates the issue of Maryland’s tax from the messy realm of overlapping governmental powers to the exigent needs of the Union itself. Having defined the relevant sphere of action in McCulloch I in terms of national defense and the fisc, Marshall effectively answers the McCulloch II question before explicitly taking it up.

Sandy’s work thus reframes McCulloch in several important ways. The case is monumental; worthy of close and careful reading; and requires contextualization. Importantly, the necessary contextualization requires not only that we situate the case in the legal and political world of the early nineteenth century, but that we recover elements of McCulloch that have increasing resonance for the constitutional landscape of 2022.

Since the “constitutional revolution” of 1937, commentators have tended to focus on the congressional power portion of McCulloch because congressional action, and the Court’s power to limit it, were central preoccupations of American constitutional law. But that era was distinct, discrete, and, perhaps, has now ended. In our current moment, with conflict swelling between and even within every conceivable level of government, and fissiparous rhetoric increasingly prevalent, the realm of the constitutionally plausible—or at least tolerated—may have expanded. The state sovereignty arguments at the core of McCulloch II may prove to have been only briefly relegated to history. Reading McCulloch through the lens of Union is vital to recognizing that many federalism arguments thought lost may have been only temporarily in abeyance.

Alison L. LaCroix is Robert Newton Reid Professor of Law and an Associate Member of the Department of History at the University of Chicago. Her book The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms will be published by Yale University Press in 2023. You can contact her at lacroix@uchicago.edu.