Empire States: The Coming of Dual Federalism.

• Author: Ablavsky, Gregory

ARTICLE CONTENTS INTRODUCTION 1794 I. THE OLD ORDER: EMPIRE AND SOVEREIGNTY 1801 A. Blackstonian Sovereignty and Its Discontents 1802 B. American Sovereignties 1804 C. Sovereignty, Localism, and Federalism 1808 II. THE NEW ORDER: STATE ATTACKS ON COMPETING SOVEREIGNS 1812 A. Corporations 1816 B. Localism 1819 C. Native Nations 1824 D. Secessionists 1827 E. Shays's Rebellion 1832 III. CONSTITUTIONALIZING DUAL SOVEREIGNTY 1835 A. Protecting State Power at the Constitutional Convention 1837 1. The Guarantee Clause 1838 2. The New State Clause 1839 3. Intent and Text 1841 B. Ratification 1842 1. The Guarantee Clause 1842 2. The New State Clause 1844 3. State Sovereignty and the Ratification Debates 1846 IV. AFTERMATH: THE ARRIVAL OF DUAL FEDERALISM 1847 A. Public and Private Corporations 1848 B. Secessionist and Populist Movements 1851 C. Native Nations 1855 D. Text and Ideology 1861 CONCLUSION 1862 The soil and the people within these limits [of the United States] are under the political control of the government of the United States, or of the States of the Union. There exists within the broad domain of sovereignty but these two. --United States v. Kagama (1) INTRODUCTION

"Federalism was our Nation's own discovery," Justice Kennedy observed before proceeding to craft one of the most influential metaphors in modern American law. (2) "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." (3)

Justice Kennedy's metaphor has proved so durable partly because it tidily captures the dominant scholarly and judicial account about federalism and the creation of the United States. Eighteenth-century British thought, this account stresses, envisioned sovereignty as unitary and indivisible; it denounced the prospect of multiple sovereigns within a single polity as a logical impossibility, a so-called imperium in imperio. (4) But Anglo-American revolutionaries rebelled against this conception of authority, and out of the Revolution's ferment emerged a new ideology that valorized sovereignty's division. (5) The Constitution institutionalized this vision by acknowledging both the states and the federal government as sovereigns that derived independent authority from the people. (6) The resulting federalist system of dual sovereignty protected individual liberties by diffusing governmental power among multiple sovereigns. (7)

This standard account underpins most judicial decisions concerning federalism, even those that ultimately embrace national authority. (8) It also provides the starting point for most scholarly discussions of federalism, even when they reject dual sovereignty as archaic--too constraining, too impoverished by its overreliance on the concept of sovereignty to encompass an increasingly interdependent nation and world. (9) Yet this origin story, this Article argues, is a partial and incomplete account of federalism and the constitutional moment known as the Founding.

This Article offers an alternate version of federalism's origins in the late eighteenth-century United States--one that, to modify Justice Kennedy's metaphor, tells a story of federalism as fusion, not fission. The advent of "Our Federalism," I argue, served to centralize as much as to divide authority, as newly empowered states sought to assert claims to sovereignty over and against older conceptions of fragmented, localized quasi-sovereigns. And, I suggest, the states frequently succeeded, often with the assistance of the newly created federal government that was as much state authority's ally as its enemy. In short, the Article reimagines the coming of dual federalism not as a shift from unipolarity to bi-polarity, but as a move from a world in which sovereignty was diffuse toward one where authority was increasingly understood as concentrated in the hands of only two legitimate sovereigns.

In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first, involving ideas of sovereignty, occurred during the American Revolution and its immediate aftermath. In British North America, William Blackstone's caricatured accounts of unitary sovereignty bore little resemblance to reality; power rested with a complex patchwork of local institutions with independent authority. The prevalent conception of sovereignty reflected its origins in an early modern worldview rooted both in the corporatist representation of particular communities and in imperial realities of uneven jurisdiction. But the Revolution elevated a different understanding of sovereignty, one in which authority derived from an imagined and homogenous "people." This conception empowered state legislatures, which claimed to be the authoritative repository of the popular will under newly adopted state constitutions. Throughout the 1780s, these legislatures sought to wield this newfound sovereignty against the competing claimants to authority within state borders--corporations, local institutions, Native nations, separatist movements--and to subordinate them to state legislative supremacy.

The second shift came with the drafting and ratification of the U.S. Constitution, a document that, as many have traced, sought to curb the perceived excesses of state legislatures by expanding federal power while also maintaining autonomous and sovereign states outside federal, control. (10) But these aims coexisted with another goal: to bolster federal authority in order to protect state authority, especially against internal competitors--a purpose reflected in the debates surrounding the Guarantee and New State Clauses and partially in the resulting text. Ultimately, the Constitution, rather than reestablishing older ideas about sovereignty, was interpreted both to limit and to enhance state authority. This outcome firmly established a framework of dual sovereignty, as a brief tour of postratification history suggests. Competitors to state sovereignty continued to resist state authority, but they were now increasingly forced to appeal not to their own inherent sovereignty, but to some federal right or power. In other words, what had previously been considered a contest among supposedly coequal sovereigns--something akin to what modern scholars would label horizontal federalism--increasingly became a question of vertical federalism, an issue of whether federal authority would vindicate states or their opponents.

Examining federalism and sovereignty in the early United States offers distinct challenges. Like present-day scholars who lament sovereignty as hopelessly imprecise and malleable, (11) early Americans found the concept baffling. "Who, or what, is a sovereignty? What is his or its sovereignty?" Justice Wilson asked in 1793. (12) "On this subject, the errors and the mazes are endless and inexplicable." (13) But, notwithstanding these misgivings, Wilson and other Anglo-Americans could not seem to escape the term, which they used constantly. Historian Gordon Wood has labeled "sovereignty" the "single most important abstraction of politics of the entire Revolutionary era." (14)

In this Article, I am less interested in defining sovereignty than in tracing how the inhabitants of the early United States deployed the term in concrete contests over power. Their discussions suggest that this amorphous term proved unavoidable because it did important work. Sovereignty encapsulated the problem of who could legitimately exercise the power to create and adjudicate binding law--and why. The term implicated two closely entangled questions: where this political power came from--its source--and whether that power was unitary or could be divided--its nature. Because these unsettled issues were foundational, they constantly recurred: even the most quotidian contest over jurisdiction could, and often did, become a struggle over the meaning and legitimacy of authority.

This frame also challenges Justice Kennedy's account of American exceptionalism. Although institutions in the United States were distinct, the history I recount here fits a global story. The late eighteenth and early nineteenth centuries were, historians have traced, a transnational moment of hardening conceptions of sovereignty. (15) Linked to the rise of nation-states, sovereignty became increasingly envisioned as uniform authority exercised over space imagined as "territory," (16) an understanding that displaced older logics of localism and pluralism. (17) The United States did not transcend this transformation: arguably, it was central to it. (18) The newly created states, I argue here, proved particularly eager adopters of this new model of power. (19)

Federalism offers its own conceptual and methodological questions, the subject of a vast and thoughtful existing scholarship. (20) Yet this literature principally focuses on early federalism as abstract political theory and doctrine, reconstructing its contours from conventional sources and texts. This Article, I hope, offers new contexts by thinking about federalism in the frame of less well-known legal and political controversies that unfolded within individual states and along the frontier, alongside these more familiar debates. To recount this history, I draw partly on primary-source research, but also on dozens of localized studies by scholars in fields as diverse as corporate law, local government law, federal Indian law, early state and federal constitutional law, and the history of popular and territorial sovereignty--few of which have defined themselves as explorations of federalism's history. (21)

My aim in adopting this more expansive scope is not to offer the latest salvo in long-running debates over the influence of ideas, interests, and institutions in shaping history, (22) but rather to suggest--even for legal scholars focused on formal doctrine--the value of the capacious perspectives...