Federalism: A Dialogue.

• Author: Higginbotham, Patrick E.

DAVID SHAPIRO'S ADVERSARY STATEMENT ON FEDERALISM

This book reflects the extraordinary combined force of scholarship and advocacy by a master of both. Professor David Shapiro practiced as a young lawyer with a distinguished Washington, D.C. law firm and served as Deputy Solicitor General for nearly three years. He is a Professor at Harvard Law School and one of the leading scholars in the field of federal courts and federal jurisdiction. For many years, he has authored the leading casebook in the field.

Asked to deliver the Julius Rosenthal Lectures at Northwestern University School of Law in 1994, Professor Shapiro saw that the three-lecture series offered the opportunity to structure a treatment of federalism in an adversary format, without losing the balanced and honest presentation of the scholar. In the first lecture, he states the case for the "nationalist," in the second, for the "federalist," and in the third lecture he offers a synthesis. Each lecture has the approximate length of a merit brief in the Supreme Court. Together, the three lectures -- now published as Federalism; A Dialogue -- comprise a dialogue in the tradition of Henry Hart, Lon Fuller, and the classic Socratic process, but they are much more.

I do not see a book review as a launching pad for the reviewer's ideas, with little more than a mention of the book being reviewed. Rather, I hope to describe the three lectures by providing samples from each with no pretense of capturing nuance or of complete description. My views of their strengths and weaknesses conclude the review.

The direct draw upon the judiciary's adversary model allows Shapiro's hand to move free from the clutter of balancing-as-you-go. This model, as applied in the first two lectures, allows him to present each case in its most powerful form, to state the polarities before turning to the gray areas of current debate. The result is clarity and balance.

There is a vast amount of writing about federalism; most of it circles like satellites in solitary orbits. Yet, this book brings rich insight and freshness to the subject by sorting the many arguments and exposing them to the light of context and relevance. This is no task for the timid. An adversary brief demands that arguments be ordered and marshaled, a challenge with so much in the libraries claiming relevance.

1. THE NATIONALIST BRIEF

   The first lecture begins with a frontal assault: There is no significant constitutional restraint on national power or on the displacement of state law and regulation by national law. Shapiro proceeds by denying that the Constitution was a compact and instead assets that its authority came directly from the people; the fact that constitutional power was not drawn from sovereign states "is confirmed by the background and circumstances of the Constitutional Convention, the nature of the ratification process, and most significantly by the text and structure of the Constitution itself" (p. 15). To bolster this argument, Shapiro points out that no state could block ratification and that ratification required support of states representing a majority of the population of the new Union. Quoting Jefferson Powell, he points to the strongest evidence of the nationalist thesis: " `[T]he Constitution contained no explicit guarantee of state sovereignty' " (p. 17). Nor, he says, could any such constitutional guarantee be implied, given that the then-prevailing legal thought refused to recognize divided sovereignty. Turning to the Preamble, Shapiro assets that the language "We the People" was not simply an airy opening flourish. Certainly Patrick Henry, the master of the flourish, did not see it that way: He complained that the Preamble should begin, "We the States."

   Then, with the deftness of the advocate, Shapiro draws support from the familiar argument that the Bill of Rights, won by the anti-Federalists in their carving of federal power, evidences a sovereign role for states. He does not deny that such an inference is permissible or that it has force when viewed alone. Rather, he points to the diluting, if not alternative, inference that the Bill of Rights in limiting federal power delivered on the Preamble's promise to protect individuals from federal excesses. The brief, after many more arguments than I have mentioned, asserts that any constitutional force to state sovereignty has been eroded by subsequent amendments, evolving constitutional doctrine, and historical practice (p. 26). It...